WASHINGTON-The federal pre-emption debate has become much bigger than antenna siting moratoria, with no clear political line on the explosive question of whether state and local regulators should be bypassed to further national policy objectives.
As the issue gains steam generally, the politics differ from case to case. There is one constant, though: mayors, state officials and city council members do not want the federal government meddling in affairs they believe are constitutionally theirs.
A showdown at the U.S. Supreme Court in the future is not far fetched.
In some cases, Republicans, champions of new federalism and the majority party in the House and Senate, lean toward federal pre-emption.
Sometimes not.
House telecommunications subcommittee Chairman Billy Tauzin (R-La.) might have pursued pre-emption of antenna siting moratoria had he not been overruled by his boss, Thomas Bliley (R-Va.), chairman of the House Commerce Committee and a former mayor of Richmond, Va.
Senate Commerce Committee Chairman John McCain (R-Ariz.), too, might have crafted federal pre-emption legislation but for the fact that he was deluged with angry faxes and calls by soccer moms and RF tree huggers and fellow GOP colleagues, Kay Bailey Hutchison of Texas and Montana’s Conrad Burns, a former county commissioner.
Hutchison and Burns aren’t keen on government interference in local telecom disputes.
Democrats, who run the White House, appear to be championing city and state rights in certain instances. But not necessarily in others.
Last week, for example, the Clinton administration threatened to veto a House bill that weakens local zoning authority by allowing property owners to go straight to federal court to contest land-use disputes with local government regulators.
Another GOP so-called “takings” bill, this one introduced by Sen. Orrin Hatch (R-Utah), has come to life recently but time likely will not allow further action this session.
At the same time, the Clinton administration supports bipartisan legislation to pre-empt state and local taxation of Internet commerce. Senate Majority Leader Trent Lott (R-Miss.), appears to be on the fence.
“No issue is more basic than local control over land use,” said Mark Schwartz, president of the National League of Cities, in the organization’s Oct. 13 weekly newspaper.
“This is not about the government sticking it to the little guy,” Schwartz stated. “This is about the people of the community making decisions at the local level about how their community will grow and be.”
Meanwhile, the Federal Communications Commission has boldly embraced federal pre-emption in recent rulings involving cable TV, digital TV and other telecom services.
Yet the same FCC has moved more cautiously on the wireless industry’s call to pre-empt excessive antenna siting moratoria and local taxation.
The agency currently is reviewing comments on a proposal, based on a Cellular Telecommunications Industry Association petition, to do just that.
The wireless industry’s legal argument for pre-emption is that antenna moratoria violate the 1993 wireless deregulatory statute and constitute a barrier to entry under the 1996 telecommunications act.
“Tower siting moratoria impede the nationwide buildout of wireless networks,” said Sheldon Moss, manager of government relations at the Personal Communications Industry Association. “It was clearly the intent of Congress in the Telecommunications Act of 1996 to facilitate wireless competition by limiting the power of local governments to regulate the industry.”
