This is a Fight For Control, or More Correctly, to Escape Control

Personal wireless services are clearly defined by the Telecommunications Act.  The reason for creating this group of wireless carriers was well thought out.  The U.S. Congress plainly distinguished between “telecommunications services” in Section 253 of the Telecommunications Act and “personal wireless services” in Section 332(c)(7) of the same Act.

In Section 253(a), the reader encounters the following:

General. - No State or local statute or regulation, or other State or local requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

In contrast, the same Act states in Section 332(c)(7):

General Authority-Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

The above means, if PlanWireless reads American English correctly, that Section 253 definitely controls local governments when regulating “telecommunications service,” but not personal wireless service facilities, which are controlled by local zoning authority.  (And, yes, Wi-Fi is a personal wireless service.)

Can “Local Zoning Authority” be Pre-empted in the Regulation of Wireless?

The FCC is reluctant to interfere with zoning, a fundamental police power of local government.  However, in at least two cases, federal pre-emption is allowed, once by statute, the other by administrative law:

·       Section 332(c)(7)(B)(iv) of the Telecommunications Act states:

No State or local government or instrumentality thereof may regu­late the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emission to the extent that such facilities comply with the Commission's (FCC’s) regulations concerning such emis­sions.

This is, in effect, a pre-emption.

·       The FCC complied with Section 207 of the Telecommunications Act by issuing the prohibition of any regulation, “including zoning,” which impaired the use of DBS (Direct Broadcast Satellite) and MDS (Multipoint Distribution Services) on antennas less than one meter or any TV antenna (FCC, Report and Order.  Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, August 5, 1996).

Both of these pre-emptions are clearly stated in, or enabled by, the Telecommunications Act.  There is no room for confusion.  If the U.S. Congress believed that Section 253 should pre-empt local zoning authority, they would have so stated in the Telecommunications Act or directed the FCC to promulgate such a rule.

PlanWireless therefore asserts that local zoning authority rules personal wireless services over any other form of authority, including state legislation and local franchising or right-of-way agreements.

The Wireless Carriers Have a Plan; Each Local Government Needs One, Too

The carriers are taking aggressive attempts to ban zoning of “telecommunications services” in the right-of-way by taking the issue to court.  They want Section 253 to be misinterpreted by telecommunications attorneys as binding on personal wireless service facilities, regardless of zoning.  In California, they have won two trial (District) court findings and are appealing one they lost, also in California.  Since California federal courts have very little experience with “tower” cases, they provide fertile ground for personal wireless service carriers to bring this issue to the U.S. Supreme Court.

If your jurisdiction has any policy regarding telecommunications, make sure that landline is regulated separately from wireless.  If your ordinance or code does not spell out “personal wireless service facilities,” your community has one strike against it already.  If your regulations are using the term “towers,” the wireless industry will distinguish right-of-way deployment from monopoles or lattice towers.  They may claim that right-of-way deployment is unregulated by zoning in your community and that Section 253 applies.

Kreines & Kreines, Inc. has an approach that makes all these distinctions clear.  Our latest client city has adopted a Wireless Master Plan that precludes all right-of-way deployment of personal wireless service except for those specifically permitted by ordinance.  Kreines & Kreines, Inc. then prepared a personal wireless services facility ordinance that this city has adopted to carry out this policy.  In addition, Kreines & Kreines, Inc. prepared a Cost Recovery and Revenue Generation Manual for the city to recover its expenditures on wireless and to start making money from personal wireless service facilities.

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com