FACA SEMINAR 2011 FEDERAL AND STATE MANDATES, LOCAL HOME RULE - PERSONAL WIRELESS SERVICE FACILITIES; LEASING LOCAL GOVERNMENT LAND FOR CELL SITES David W. Wagner, County Attorney Alachua County, Florida I. I NTRODUCTION - P ERSONAL W IRELESS S ERVICES Over the past 15 years, the wireless industry has convinced both Congress (The Telecommunications Act of 1996) and the Florida Legislature (PL 2003-182 and PL 2005-171) to adopt legislation that limits the authority of local governments to regulate the location of personal wireless facilities. Federal courts continue to decide cases, which highlight the ongoing struggle between federal regulatory authority and local government zoning authority. In addition, the wireless industry persuaded the Federal Communications Commission to adopt an order establishing timelines for proposing zoning applications (discussed in Section VI below). In Florida, local governments possess authority to regulate the location of wireless facilities unless the State legislature expressly or by implication preempts that authority. The Florida Legislature adopted legislation in 2003 (PL 2003-182, codified in Section 365.172, Florida Statutes) that limits local government authority to regulate the location of certain wireless facilities. The 2005 Florida Legislature adopted additional limitations on local government home rule authority (PL 2005-171, codified, in Section 365.172, Florida Statutes). The purpose of this outline is to address a local government’s authority to regulate the deployment of personal wireless facilities within the restrictions and limitations of Federal and State law. A. Growth of the “Tower” Building Industry One of the most significant trends has been the growth of the tower building industry. Wireless carriers prefer to have tower builders procure sites and site approvals for mounts (some people always refer to mounts as towers) for wireless facilities. Tower companies are in the vertical real estate business and are not licensed by the FCC to provide wireless services. Growth in the tower building industry is in direct response to the demand by our citizens for ever more sophisticated wireless technology. B. Potential Growth of the WiMAX technology Another significant trend has been the growth of WiMAX (Worldwide Interoperability for Microwave Access), a new wireless service technology. WiMAX is a broadband service provided by Sprint/Nextel, Comcast, and other companies. In contrast to Wi-Fi, where service is usually limited to a building or room, WiMAX allows for city or countywide coverage. WiMAX permits such widespread access by using the radio spectrum rather than copper wire line connections to transmit signals between digital
devices. Through this method, WiMAX provides wireless access at greater distances and higher broadband levels than Wi-Fi, which means that WiMAX may open wireless internet access to rural areas where constructing traditional hardwire is too expensive. WiMAX, despite its different approach to wireless internet access, requires antennas and towers similar to the cellular towers currently in use. In order to capitalize on the new WiMAX technology, wireless carriers require a network of new antennas or new tower leases. Companies prefer to add antennas on existing towers than to build new towers themselves in order to avoid the cost of new site acquisition, tower construction and zoning approval. Wireless carriers may argue that the 47 U.S.C. 332(c) limitations on local government zoning authority discussed in para. II, below, apply to WiMAX siting, but it is unclear if these limitations apply because WiMAX does not clearly fit under the language of the Federal Telecommunications Act. See 47 U.S.C. 332(c) (the Telecommunication Act’s cell tower zoning restrictions apply to “‘personal wireless services’ mean[ing] commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services,” and WiMAX is a broadband radio service). Appellate courts and the FCC have not spoken about the applicability of federal limitations on local government authority to WiMAX cell facility siting. However, prudent local governments will comply with federal law to avoid potential lawsuits. C. “Wireless” Principles for Local Governments 1. Tower building companies are not within the scope of the Telecommunications Act of 1996; the limitations of the Act do not apply to tower applications (unless a personal wireless services provider is a co-applicant). 2. Personal wireless service antenna heights are coming down - normally by lowering the antenna location on an already existing tower in order to split cells to provide increased capacity to a provider’s wireless customers. 3. The demand for wireless sites will continue to increase. 4. A proliferation of shorter mounts may have less visible impact on a community than collocation of several antennas on a tall tower. 5. A local government’s quasi-judicial action must be supported by competent substantial evidence. Accurate photo simulations are especially effective in evaluating the visual impact of a proposed facility. 6. A personal wireless facility ordinance should include standards for evaluating personal wireless facility applications. An ordinance may be based on a wireless master plan (described in Section III of this outline). An ordinance and 2
subsequent site specific decisions must be consistent with the Comprehensive Plan. 7. A local government should include both local community and industry representatives in the process of developing a personal wireless facility ordinance. II. T HE T ELECOMMUNICATIONS A CT OF 1996 AND L OCAL Z ONING A UTHORITY This outline provides a summary of the case law applying the Telecommunications Act of 1996 (the “Act”) [47 U.S.C. 332(c)(7) (“section 332(c)(7)”)], and suggestions to assure that the record supporting each local land use decision complies with section 332(c)(7) and the requirement under Florida law that a quasi-judicial action be supported by competent substantial evidence. Section 332(a)(7)(c)(i) defines personal wireless services as commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. The definition includes analog and digital (800 MHz) cellular, broadband PCS (1850-1990 MHz) services and enhanced specialized mobile radio, and paging services. Today, wireless technology development is focused on building capacity to transmit data on 3G and 4G networks. Several federal appellate court decisions issued over the past few years have clarified the rights and obligations of wireless providers and local governments under section 332(c)(7). Understanding these rights and obligations is important to not only assure that your local government satisfies the requirements of section 332(c)(7), but also because the consequences for failing to comply may become significant – In 2000, one federal appeals court held that 42 U.S.C. 1983 remedies are available to a wireless provider that successfully establishes a violation of section 332(c)(7). AT&T Wireless PCS, Inc. v. City of Atlanta , 210 F.3d 1322 (11th Cir. 2000). The U.S. Court of Appeals, Eleventh Circuit, subsequently vacated the opinion and dismissed the appeal because the District Court’s judgment was not final (all claims of the parties not addressed). AT&T Wireless PCS, Inc. vs. City of Atlanta , 223 F. 2d 1324 (11 th Cir. 2000). The Third, Sixth, Seventh, and Ninth Circuit Courts recently addressed the same issue, with different results. The Third Circuit Court of Appeals held that the Telecommunications Act provides a comprehensive remedial scheme that “furnishes private judicial remedies” that include benefits and corresponding limitations, thereby precluding § 1983 action. Nextel Partners, Inc., v. Kingston Township , 286 F.3d 687, 694 (3d Cir. 2002)(holding that section 332 does not “create a right that can be asserted by § 1983 in lieu of its own remedial scheme). General remedial statutes, including § 1983, should not be seen as vehicles for available remedies when a federal statute already creates rights overlapped by existing remedial statutes. Prime Co Personal Communications, L.P. v. City of Mequon , 352 F.3d 1147, 1152 (7th Cir. 2003). The Court of Appeals, Ninth Circuit, on the other hand found that the Act’s provisions were procedural in nature and not remedial, thereby departing from the notion that Congress intended to foreclose § 1983 remedies, Abrams v. City of Rancho Palos Verdes , 354 F.3d 1094, 1099 (9th Cir. 2004). Congress affirmed its intent to not supersede applicable law such as § 1983, by enacting § 601(c)(1) of the Act, which states that “This Act… shall not be construed to modify, impair, or 3
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