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Dark Clouds Are on the Horizon for Local Gov't
Local Governments All Across the U.S.: Dark Clouds are on the Horizon
It’s not just California (where trends often take off); all local governments
should be aware of a new assault on the Telecommunications Act of 1996:
• Congress is, by its own admission, rewriting the Telecommunications Act as we
speak. The goal is to completely re-cast the present law by the
Telecommunications Act’s 10th Anniversary, February 8, 2006.
• The Cellular Telecommunications and Internet Association (now officially
called “CTIA”), has established a subsidiary group to attack state and local
regulation and taxation. The initial funding of this group by wireless carriers
is $40 million.
• The FCC, on December 23, 2004, issued a “public notice” which reiterated “the
obligation to provide wireless telecommunications providers with access to
utility poles at reasonable rates pursuant to section 224 of the Communications
Act, 47 U.S.C. section 224.”
Taken together, along with the California article on the first page,
PlanWireless connects the dots to arrive at the conclusion that the wireless
industry wants to clarify their assumed right to deploy in the right-of-way.
PlanWireless applauds the industry’s “discovery” of the right-of-way. But
right-of-way deployment only works when the owner of the right-of-way is in
control.
Zoning vs. Right-of-Way Regulations, Franchises and Agreements
The Telecommunications Act of 1996 (and the Communications Act before it) is
clear. Personal wireless service facilities are regulated by zoning, not by
other sections of the Telecommunications Act. As long as five limitations on
local zoning are followed, local government has the right to regulate personal
wireless service deployment in the right-of-way, as long as it’s zoned.
Some cities and counties don’t want to start zoning things in the right-of-way.
There are local governments, to be sure, that would rather say “…this is out of
our hands. They are going to do what they are going to do.” Just remember: there
are considerable revenues in wireless that your community can enjoy, if your
community has control.
Pole Attachment Law Has Nothing to do With Zoning or Local Government
Regulation
If your community received an FCC “Public Notice” and interprets that reminder
as a mandate to let whichever “wireless telecommunications provider” locate in
the right-of-way as a mandate to override zoning, please think again. The pole
attachment law (Section 703[e] of the Telecommunications Act, which amended 47
U.S.C. Section 224) is directed at pole owners, not local governments.
If you are a private utility pole owner in the right-of-way, and a “wireless
telecommunications provider” says “I want to attach,” you may not be able to say
no. But Section 224 doesn’t mandate that a local government approve a personal
wireless service facility proposed in the right-of-way. There is even some
question as to whether a municipal pole owner must allow a “wireless
telecommunications provider“ to attach to a municipal pole. The following should
be kept in mind:
• A pole attachment requirement is a proprietary mandate. A pole owner may have
to accept a “wireless telecommunications provider” at a fair rental rate.
Franchises and right-of-way agreements are proprietary, not zoning.
• A zoning requirement is a regulatory mandate, which is different from a
proprietary mandate. Local governments, whether they own the pole or not, may
zone the right-of-way, where most poles are located.
The important point here is that when a CMRS (commercial mobile radio service)
claims exemptions from zoning, the answer should be no. No, because pole
attachment law should not apply to municipal zoning and, no, because zoning
overrides whatever restrictions Section 253 places on the local government.
Wireless industry representatives may say that Section 253(a) overrides Section
332(c)(7)(A).
Cities and counties should provide ample opportunities through zoning for the
wireless industry to deploy their facilities.
Section 253 Was Intended for Landline Telecommunications
There are so many landline carriers that a local government might readily ask:
“do we have to allow them all in the right-of-way?” The answer, as far as
landline carriers are concerned, should be “yes.”
But in 1995 and 1996, when the new Telecommunications Act was debated in
Congress, the question arose “What about personal wireless services; in
particular, what about CMRS?” The answer was (and is): CMRS are governed by
Section 332(c) generally and section 332(c)(7)(A) specifically, which states:
… nothing in this Act shall limit or affect the authority of a State or local
government ...
PlanWireless invites contrary opinions to ours, that the operational
phrase “nothing in this Act …” applies to Section 253. Therefore, according to
PlanWireless ‘ reading, Section 253 cannot override Section 332(c)(7)(A).
The Telecommunications Act is murky. Some say it’s confusing. But any
interpretation should work for the local government, not against it. Otherwise,
there would be no need to include both Sections 253 and 332 in the statute.
Expect Changes to Clarify This Issue in Favor of the Wireless Industry
The whole idea of rewriting the Telecommunications Act is to bring it up to date
and end any confusion. As long as people doing the work of Congress are the
carriers and CTIA, you can expect that Section 253 will be extended to cover all
personal wireless service facilities. In that case, the Sprint v. City of
Palos Verdes Estates finding may be a predictor of the future.
But local government has its champions as well. The National League of Cities (NLC)
and National Association of Counties (NACO) should be reminded that the
right-of-way belongs to the local government. There are safety reasons and
traffic reasons, not to mention fiscal reasons, why cities and counties must
retain control of the right-of-way. |
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