WASHINGTON-Rep. Charles Bass (R-N.H.), in the latest effort to strengthen state and local
oversight of antenna siting, has introduced legislation to shift the burden to wireless carriers to ensure transmission
towers meet with approval of local residents.
The Local Zoning Preservation Act of 1999, introduced earlier this
month, would amend the 1996 telecom act’s antenna-siting provision by allowing local zoning boards to reject
applications to erect towers if structures are deemed to have a negative impact on property values, aesthetics and
character of a community.
“This bill does not discriminate against personal wireless service providers or
impede their attempts to provide personal wireless services,” said Bass. “But it does encourage providers
and localities to work together to design towers, facilities, or other feasible alternatives that do not intrude or diminish
the aesthetics of residential communities, thus avoiding costly and protracted litigation.”
Bass told RCR last
week he is trying to round up co-sponsors for the legislation.
The Bass bill, while lacking the political fire of tower-
curbing legislation being crafted by Sen. Patrick Leahy (D-Vt.), Sen. James Jeffords (R-Vt.) and Rep. Bernie Sanders
(I-Vt.), has the potential to go further than the Vermont measure (expected to be introduced by month’s end) because it
is more narrow and measured and steers clear of the highly controversial health issue.
For that reason, despite likely
opposition to both bills from House Telecom Subcommittee Chairman Billy Tauzin (R-La.) and Senate Commerce
Committee Chairman John McCain (R-Ariz.), industry is not taking Bass lightly.
“This legislation is a serious
concern to industry. It would be devastating if it passed,” said Dave Murray, director of legislative affairs for the
Personal Communications Industry Association.
Sheldon Moss, PCIA director of government relations for
infrastructure, observed, “It lowers the bar in terms of what a zoning board can do to deny a legitimate
application for a tower and not have it overturned in federal court.”
Murray and Moss said they planned to
meet with Bass’ staff last Thursday.
“Clearly, it undermines the telcom act,” said Tim Ayers, spokesman
for the Cellular Telecommunications Industry Association.
Ayers said Congress struck a balance in the law between
local zoning authority and the need for wireless telecommunications. He noted there is a growing awareness of the
importance of tower buildout for public safety and 911 access.
“We really don’t expect Congress will try to
open this up,” Ayers stated.
Bass’ measure was prompted by a federal court ruling against Amherst, N.H.,
which rejected Omnipoint Corp.’s application to build four 190-foot wireless towers in the town. Amherst has appealed
the ruling in the U.S. Circuit Court of Appeals in Boston.
Under the telecom law, a state or local authority that turns
down a tower application must put the denial in writing and support it by substantial evidence in the written
record.
“I strongly believe that local citizen concerns about the aesthetics of the towers and their
incompatibility with the residential character of local neighborhoods are reasonable justifications for the decisions of
town selectman or local zoning boards concerning the placement and construction of cell towers,” said
Bass.
Courts have interpreted the “substantial evidence” standard differently in antenna-siting litigation
outside Amherst.
In Cellular Telephone Co. v. Town of Oyster Bay, N.Y., the court concluded “aesthetics
qualify as a permissible ground for denial of a permit only if we can conclude the there was ‘more than a scintilla’ of
evidence … before the [zoning] board on the negative visual impact of the cell cites.”
The court in AT&T
Wireless PCS Inc. v. City Council of the City of Virginia Beach found citizens’ testimony “demonstrating
concerns about the aesthetics of the towers and their incompatibility with the residential character” of the
community “is more than enough to demonstrate the real, and surely reasonable, concerns animating the
democratically elected” city council’s decision.
“In some cases,” said Bass, “I believe the
courts have misinterpreted the intent of the limitations [of the telecom act]. These court decisions have forced many
states and localities to approve applications for construction of unsightly mammoth cell towers in their
community.”
The wireless industry’s previous push for pre-emption of local antenna siting failed to attract
support from Democrats or Republicans, despite the hundreds of moratoria on tower construction throughout the
country.
Federal Communications Commission Chairman William Kennard, a Clinton appointee, said pre-emption
should be employed only as a last resort.
Republicans, who captured control of Congress in the 1994 elections after
promising to devolve power to the states, are reluctant to touch the pre-emption issue.
In the meantime, some
progress on antenna siting has been made through increased dialogue between carriers, local officials and FCC
regulators.
