7.9. & 7.10. SR 02-18-1997ITEMS 7.9. & 7.10.
ty of
E
iver
MEMORANDUM
TO:
FROM:
DATE:
Mayor and City Council
Scott Harlicker, Planning Assistan,/~
February 18,9197
SUBJECT: American Portable Telecom Request
for Rezoning and Conditional Use
Permit, Public Hearing Case No.'s
ZC 96-20 and CU 96-26
Request
American Portable Telecom is requesting a zone change to rezone certain
property to Antenna Overlay District (AT) and conditional use permit for a
wireless communication antenna tower and equipment buildings.
Location
The property being utilized is located on the east side of County Road 13 that
currently contains Industrial Hardfacing's light manufacturing facility; PID #
75-135-2315
Zoning/Land Use
I1 (Light Industrial) / LI (Light Industrial)
Attachments
Ordinance No. 97-
· Location map
· Zoning map
· Site plan
Reports to Planning Commission dated January 28, 1997 and February 4,
1997
· "Wireless World", an article on the PCS industry from Planning magazine
dated December, 1996
· Section 704 of the Telecommunications Act of 1996 cover facilities siting
· Background information on zoning authority, planning and building codes
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
American Portable Telecom Rezoning & CUP
February 18, 1997
Page 2
Background
American Portable Telecom is proposing to lease an area approximately 50'
by 50' in order to construct a 165 foot tall self supporting mono pole PCS
tower on which they will mount 9 directional antennas.
The adjacent land uses include single family residential, undeveloped
residentially zoned land and industrial zoned property that contains a single
family home.
The proposed tower location is the east side or rear of the existing building.
The area to be leased is level and contains a 16 inch diameter oak. Access to
the tower will be via an existing blacktop driveway.
In order to proceed with their proposal, the applicant has to request a
rezoning to Antenna Overlay District (AT) and the actual tower is subject to
a conditional use permit.
Overview
Rezoning
In order to construct the proposed tower and antennas, a rezoning of the
property to AT is required. This overlay district was established to manage
the proliferation of antenna towers and to insure their proper placement
regarding health, safety and welfare of the community. This overlay district
does not change the underlying I1 zoning district, all the uses allowed and
the dimensional regulations in the I1 zoning district will continue to be
allowed on land zoned AT.
In considering a rezoning request of this nature, consideration should be
given to the existing conditions within the area directly and indirectly
affected by the proposed rezoning as well as the compatibility with
surrounding land uses.
The rezoning request should not adversely impact and would be compatible
with the zoning and current use of the property which is under consideration
for rezoning. However, because of the required height of the tower (165 feet)
the visual impact on the nearby residential areas will be difficult if not
impossible to mitigate entirely. To address the issue of compatibility and the
visual impact on adjacent residential properties, the tower will be a mono
pole construction and painted a color that will blend in with the background.
s:XplanningXscott\cu9626cc.doc
American Portable Telecom Rezoning & CUP
February 18, 1997
Page 3
The applicant has shown how this location will fit in with their plans for PCS
coverage for this area. APT provided documentation showing that the most
financially efficient method to accomplish APT's immediate need is to
construct a tower at the proposed location constraints. They also looked at co-
locating on the AT&T tower approximately one mile to the south and the
towers on County Road 33. APT's conclusion was in order to accomplish their
coverage needs they would need to co-locate at both sites. By co-locating at
both sites APT's initial capital costs would be greater than they want to
incur. Furthermore, the existing towers at County Road 33 have not been
constructed to support co-location.
Conditional Use Permit
The application was compared to the performance standards relating to the
Antenna Overlay District.
1. The applicant showed that there was no danger of the pole collapsing on to
adjacent property.
2. There is only one tower proposed for this lot and the lot exceeds the one
acre minimum lot size requirement.
3. The height of the tower is 165 feet and does not exceed the 240 foot
maximum height allowed in the zoning code.
4. No portion of the tower, support or related equipment extends across any
right-of-way, property line, public street or sidewalk; the pole and equipment
buildings comply with the setback requirements.
5. The tower will be designed to comply with the Uniform Building Code and
local electrical regulations.
6. The applicant is proposing an 8 foot high chainlink fence with a locked
gate to discourage climbing.
7. Given the fact that there is very little that can be done to mitigate the
visual impact of a 165 foot antenna tower, the applicant has attempted to
reduce the impact on nearby properties with the design and color of the
tower, by placing the tower to the rear of the existing building and locating
on an industrial site. There is no lighting proposed for the tower and the
limited traffic associated with maintenance of the site will not have an
impact on the area.
s:XplanningXscottXcu9626cc.doc
American Portable Telecom Rezoning & CUP
February 18, 1997
Page 4
Planning Commission Meeting
At the Planning Commission meetings held on November 26, 1996 and
December 19, 1996 there were no comments made during the public
hearings. At the February 4, 1997 meeting the owner of Industrial
Hardfacing spoke in favor of the project; he felt that it would provide an
economic benefit to his company and pointed out that there was no opposition
voiced at any of the public hearings. The first 2 meetings were spent
becoming educated regarding the PCS cellular industry and examining
possible alternatives to the proposed Industrial Hardfacing site.
A great deal of time was spent exploring the various options relating to co-
locating on existing towers. The applicant analyzed several alternative sites
including the existing AT&T tower, the towers on County Road 33 and the
City water tower near Elk Park Center. Based on their coverage needs none
of these sites alone could provide the coverage they need. Another possible
alternative was examined, co-locating on the AT&T tower and the County
Road 33 tower. This alternative was not seriously considered by the applicant
because of cost constraints.
After looking at the co-location options, the discussion came back to the
proposed site. This site would meet APT's coverage and cost requirements
and would also provide a second co-location possibility for the next PCS
provider that wishes to set up a cell in the city. However there is no
guarantee that the proposed APT site will be acceptable for the next provider
that wishes to locate a tower in Elk River.
There was concern expressed by the Commission about controlling future
placement of cellular towers and how the city can encourage co-location. It
was pointed out by the applicant that it is cheaper for a cellular provider to
set up a co-location cell than it is to start from scratch. It is one of the first
options looked at after a provider determines that a tower is needed in a
community. A second means to encourage co-location would be to make it
easier to co-locate. This could be accomplished by avoiding the conditional
use permit process and require only a building permit and site plan review
for antennas that will be placed on existing towers. This would expedite the
review process by several months and enable the providers to set up their
antenna cells at an earlier date.
The Planning Commission also discussed the possibility of implementing a
moratorium on new cellular towers. The AT&T application and the APT
application brought to light some areas of the zoning code relating to antenna
towers that need to be reviewed and possibly updated. It was felt that a
moratorium on new antenna towers would allow time to review the existing
s:XplanningXscottXcu9626cc.doc
American Portable Telecom Rezoning & CUP
February 18, 1997
Page 5
regulations and procedures and make any necessary amendments. The
moratorium would not affect co-location on existing facilities or the
replacement of existing towers.
Recommendation
Since APT has indicated that they are likely to need a second tower in the
city in order to meet their future coverage needs and there is the probability
that other carriers will want to locate cellular facilities in the city, the
Planning Commission and staff are not entirely convinced that APT's
proposed tower location is the best possible location given the city's long
range goal of providing effective cellular coverage while controlling the
number of antenna towers located in the city. However, the Planning
Commission and staff have exhausted other alternatives available at this
time and recommend that the City Council approve Ordinance No. 97-__
rezoning certain property to Antenna Overlay District based on the
following:
The rezoning would not adversely affect the property under
consideration.
The rezoning is compatible with surrounding land uses.
The applicant has shown that the proposed rezoning to AT is necessary
in order to provide effective cellular phone coverage in this area.
The Planning Commission and staff recommend approval of the request by
APT for a conditional use permit to construct an antenna tower with the
following conditions:
The tower be a mono pole design and shall utilize building materials,
colors, texture, screening and landscaping so that it blends in with the
background and surrounding natural settings
o
An agreement providing for co-location and prompt removal of unused
and/or obsolete tower be attached and become part of the permit.
o
The tower and equipment building shall be removed within 6 months
of cessation of operation unless a time extension is granted by the City
Council. In the case of multiple users of this tower, this condition shall
not become effective until all users of the tower cease operations for 6
months.
The tower shall not contain any signage or identification, including
logos, except as may be required by State and Federal regulations.
s:XplanningXscottXcu9626cc.doc
American Portable Telecom Rezoning & CUP
February 18, 1997
Page 6
5. Building permits shall be applied for and issued before any
construction is started.
o
The applicant must obtain FAA approval and/or provide
documentation that FAA approval is not needed.
Applicant must obtain FCC license and approval as required for
various communications applications. No interference with local
television, radio or other electronic communications will be allowed.
o
The tower and antennas shall be certified by a qualified and licensed
professional engineer to conform to the latest structural standards of
the Uniform Building Code and all other applicable reviewing
agencies.
The tower and antennas shall be designed to conform with accepted
electrical engineering methods and practices and to comply with the
provisions of the National Electrical Code.
10.
The tower shall be constructed of, or treated with, corrosive resistant
material.
11.
The tower shall be designed and constructed to accommodate the
applicant's antenna and at least 2 additional users
12.
The tower shall be enclosed by a 8 foot high chainlink fence with a
locked gate and the bottom of the tower (measured from the ground to
12 feet above ground) shall be designed in such a way to preclude
unauthorized climbing.
13.
The tower shall not be illuminated except for illumination specifically
required by the Federal Aviation Administration or other authority.
s:XplanningXscottXcu9626cc.doc
ORDINANCE 97-
CITY OF ELK RIVER
AN ORDINANCE AMENDING THE
CITY OF ELK RIVER ZONING MAP TO REZONE CERTAIN
PROPERTY TO ANTENNA OVERLAY DISTRICT (AT)
CASE NO. ZC 96-20
The City Council of the City of Elk River does hereby ordain as
follows:
Section 1. The duly adopted Zoning Map of the City of Elk River is
hereby amended to rezone the property described as:
See Attached Exhibit A
Section 2. The rezoning is being approved based on the following
findings:
The rezoning would not adversely affect the property under
consideration.
The rezoning is compatible with surrounding land uses.
The applicant has shown that the proposed rezoning to AT is
necessary in order to provide effective cellular phone coverage in
this area.
Section 3. That this Ordinance shall take effect and be in full force
from and after the date of its publication.
Passed and adopted this __ day of
Council of the City of Elk River.
, 1997 by the City
ATTEST:
Henry A. Duitsman, Mayor
Sandra A. Thackeray, City Clerk
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MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Planning Commission
Harlicker, Planning Assistan~
Scott
January 28, 1997
American Portable Telecom Request
for Rezoning and Conditional Use
Permit, Public Hearing Case No.'s
ZC 96-20 and CU 96-26
Request
American Portable Telecom (APT) is requesting a zone change to rezone
certain property to Antenna Overlay District (AT) and conditional use permit
for a wireless communication antenna tower and equipment buildings.
Location
The property being utilized is located on the east side of County Road 13 that
currently contains Industrial Hardfacing's hght manufacturing facility; PID #
75-135-2315
Zoning/Land Use
I1 (Light Industrial) /LI (Light Industrial)
Update
On January 23,1997 representatives from APT, Sherburne County, City of
Zimmerman and the City of Elk River met for an informational meeting
regarding the PCS industry in general and APT's role in particular.
APT indicated that there will probably be 5 PCS carriers in the area, APT,
Sprint, Next Wave, Air Touch and AT&T. Sprint, APT and AT&T will likely
be the first ones to set up their cell systems in Sherburne County.
They explained their selection process and the type of criteria used in
determining the suitability of a particular site. The fact that their sites near
Ramsey and Rogers are fixed and either under construction or approved plays
a major role in determining ~vhere their cell in Elk River can be located.
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
_ity of
iver
MEMORANDUM
TO:
FROM:
DATE:
Planning Commission
Scott Harlicker, Planning Assista~
February 4, 1996
SUBJECT:
American Portable Telecom Request
for Rezoning and Conditional Use
Permit, Public Hearing Case No.'s
ZC 96-20 and CU 96-26
At the January 28, 1997 meeting the Commission received an update on the
recent discussions with APT regarding their request for a cellular tower on
the Industrial Hardfacing property. Since APT is requesting that the
Commission take action on their request following the discussion to be held
at the upcoming February 4 meeting, staff would like to outline several
options for the Planning Commission's consideration.
Approval
The Planning Commission could recommend approval of their request for the
rezoning to antenna overlay district based on the following:
The rezoning would not adversely affect the property under
consideration.
The rezoning is compatible with surrounding land uses.
The applicant has shown that the proposed rezoning to AT is necessary
in order to provide effective cellular phone coverage in this area.
The Commission could also recommend approval of the conditional use
permit based on the standard found in Section 900.42 of the zoning code and
with the following conditions:
The tower be a mono pole design and shall utilize building materials,
colors, texture, screening and landscaping so that it blends in with the
background and surrounding natural settings
An agreement providing for co-location and prompt removal of unused
and/or obsolete tower be attached and become part of the permit.
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
Memo to the Planning Commission Page 3
February 4, 1997
15. The tower, antennas and associated equipment, shall be adequately
insured for against injury or property damage caused by structural
failure of the tower or associated equipment.
16.
No part of the tower or antennas, nor any lines, cables or braces shall
at any time extend across or over any part of a right-of-way, public
street, or sidewalk.
17.
The tower shall not be illuminated except for illumination specifically
required by the Federal Aviation Administration or other authority.
Moratorium
The Commission could also consider a moratorium on new towers. The
moratorium could be drafted in such a way that co-location on existing
towers or replacement of existing towers would not be affected. A moratorium
would allow time to accomplish the following:
It would allow the City time to assess the impact of the PSC industry and
cellular towers on the City and develop a strategy to address any concerns
and issues that were identified.
· It would allow time to review the zoning code's requirements and
regulations regarding antenna towers and amend it as needed.
It would allow time to have discussions with PCS venders that might be
planning to locate towers in the city and begin to come up with an overall
or long range plan for the placement of cellular towers within the city.
It would allow time to meet with Sherburne County, Wright County and
other municipalities in the region and develop a cooperative regional
strategy or plan to accommodate future requests for cellular tower
construction.
Denial
The Planning Commission could recommend denial of the request for a
rezoning to Antenna Overlay District based on a findings that:
The rezoning is not compatible with the surrounding land uses and
include specific supporting reasons as to why it is not compatible.
The applicant has not demonstrated that off site impacts such as
lighting, electrical interference and visual impacts will not be
s:\planning\scott\cu9626re.doc
8 Planning December 1996
Wireless World
Telecommunications
technology--and local
government response--
is at a crossroads.
By William Covington
Companies hoping to succeed
in the highly competitive
communications arena must
have good relations with lo-
cal governments. It's the lo-
cal governments, after all, that supply
',e franchises and permits needed to
eliver cellular and paging services and
otk er communications products.
So far, those relations have been pretty
good. Local governments want the ben-
efits that new forms of communication
can bring, and wireless service providers
understand that cities and towns must
exercise some control over what comes
into the community. The challenge is to
keep things on an even keel at a time of
rapid growth in the telecommunications
industry.
A sign of that growth is the auctions
held on August 26 by the Federal Com-
munications Commission. On that date,
the FCC began the second in a series of
auctions that will allow more companies
to offer wireless communication services.
How it works
The term wireless communications re-
fers to a family of communication de-
vices that can send and receive messages
instantly--by voice in the case of cellular
telephones or alphanumerically in the
case of pagers. Soon, too, computer users
will be able to send and receive data via
'ireless modems.
One of the newer forms of wireless
voice communication is the personal com-
munications service. PCS is similar to a
cellular phone but operates at different
radio frequencies and requires~ twice as
many communications facilities. In pag-
ing, the lat-
est innovation is narrowband messaging.
This service allows customers to acknowl-
edge a page by pressing a button on their
pagers. Soon they will be able to receive
short text messages as well.
Wireless communications typically re-
quire three components: a device (tele-
phone, pager, or portable computer); a
celt site/radio link; and a switching of-
fice. Every major metropolitan area has
one or more switching offices, where
calls from cell sites are processed. The
calls are then sent out through the tele-
phone system. When a wireless customer
calls another wireless telephone, the
switching office locates the cell site clos-
est to the party being called and connects
that caller via that cell site. Over 90
percent of all wireless communications
still start or end on a traditional tele-
phone system (called "wireline" in the
business).
When a call is made, the device seeks
out a radio link, also known as a cell site.
Radio links capture the signal, process it
{verifying that the caller is a legitimate
customer), and send it om Most cell sites
include one or more antennas, a struc-
ture to support them, and a building to
house radio and computer equipment.
Cell sites can be located on the roofs of
buildings, on billboards, atop wooden
utility poles, and on metal poles. Lattice
towers are considered a last resort.
On the ground '
Several considerations determine where
cell sites are placed. The first is that the
site must be close enough to the caller to
receive the signal generated by a half-
watt portable phone. The second consid-
eration is that cell sites must be located
far enough apart to eliminate cross-talk.
The third is interference. Tall buildings
and large bodies of water, for instance,
can distort a signal, precluding high-quality
service.
Finally, according to the industr2-, good
service requires that there be at least one
cell site in every neighborhood, normally
within every six to eight square miles
depending upon terrain and number of
customers.
Wireless communications companies
can share cell sites. They cannot, how-
ever, share the radio equipment that sends
and receives calls and information. Should
two carriers share a site. normally 10 feet
of space must separate the antennas be-
longing to each company. As the number
of customers increases, so must the num-
ber of cell sites. HoweVer, the additional
sites typically are smaller and easier to
To make cell sites less
obtrustive--and more
politically acceptable--some
firms are choosing stealth
locations. Can you find the
device on this building? See
page 12 for the answer.
locate on rooftops or conceal in other
ways.
Going once
Back in 1981, the Federal Communica-
tions Commission published a report on
implications for economic development
of the then very new cellular telephone
technology. After a series of hearings,
the commission invited providers to ap-
pty for licenses to provide cellular ser-
vices in 306 metropolitan service areas
and 428 rural areas.
So many companies applied that the
FCC decided simply to assign local tele-
phone companies enough radio spectrum
(B bloc spectrum) to offer cellular com-
munications in their own areas. A lottery
was set up to allow nomtelephone com-
panies to compete for the remaining A
bloc spectrum. By the end of 1984-, nearly
every major metropolitan area in the U.S.
had been assigned to a carrier. In 1989,
similar lotteries were held for the rural
areas.
The cellular lotteries exceeded all ex-
pectations. Original estimates predicted
fewer than a million subscribers by 2000.
But by 1990, the cellular industry had
attracted over 10 million customers. Im-
pressed by this success, the FCC in 1994
decided to auction off enough radio spec-
trum to allow at least two new service
providers in every market. The service to
be offered was referred to as PCS or
personal communications services. The
auctions were completed in March 1995
and raised over $7 billion.
Yet another auction ,,vas held earlier
this year, this time to encourage at least
one more nationwide provider. About
$10 billion was raised by auctioning off
what is known as C bloc spectrum. Then,
on August 26, the D and E bloc auctions
were initiated. They are expected to be
completed by the end of this month.
No one is certain how the successful
bidders will make use of this additional
radio frequency. Auction winners with
licenses may simply enhance their cur-
rent systems by providing ancillary ser-
vices, or they may offer dramatic new
communications services. In any case, it
is likely that the D and E bloc offerings
will result in a need for more cellular
towers.
As a result of all this activity, local
governments have been approached by
already operating providers who are seek-
ing to expand their coverage area or to
supplement service where existing ca-
pacity is exhausted. At a time when sub-
scriber lists are growing by over 30 per-
cent a year, incumbent carriers in major
metropolitan areas may seek permission
to build 15 to 50 facilities a year.
The new PCS licensees and the new
paging providers are also seeking sites,
and so are the growing numbers of com-
panies offering data communications and
similar services. However messaging and
data delivery services typically can use
much smaller sites and often share exist-
ing facilities with cellular or PCS provid-
ers.
The winners of the C bloc auctions
(companies like Next Wave and Wireless
PCS) are just now beginning to make an
appearance. Like the PCS license hold-
ers, they will need to build an entire
network, with the number of sites de-
pending on the type of technology used
and the degree to which they can
locate" with other providers. Many wire-
less companies also use "stealthing" tech-
niq~tes (hiding facilities on rooftops or
elsewhere) to effectively conceal sites.
Local governments can probably use their
experiences with PCSs, which typically
request permits for 50 to 100 facilities a
year, as a guide to determine how many
facilities a C bloc carrier might seek.
In a hurry
A wireless company typically spends be-
tween $250',000 ~.d $700,000 to get a cell
site up and running. Those A and B bloc
providers that received their licenses in
the i980s have actually built their sys-
tems three times: first to serve customers
with three-watt car phones, then to ac-
commodate half-watt portables, and fi-
nally to convert analog cellular systems
to more efficient digital technology.
Now come the successful PCS and C
bloc bidders, and the soon-to-be-deter-
mined winners of the D and E bloc spec-
trum. All these companies have a tre-
mendous monetary obligation to the federal
government and to banks. In addition,
stiff industry competition is forcing com-
panies to lower access charges and fees
for each minute of use--their two main
sources of revenue.
As a result, wireless service providers
will be in a hurry to get construction
permits, and they will resist schemes for
imposing taxes, auctioning off access to
public property, and other assessments.
10 Planning December 1996
Given that situation, my advice to lo-
oaI governments is to get a handle on the
_? elements of the Telecommunications
Act of 1996, which lays out the ground
rules for industry and local government
in the area of land-use law.
\Vhat is required
The law creates a presumption that needed
wireless facilities can be sited in a com-
munity. Flat refusals to grant permit ap-
plications are no longer allowed. The law
also requires that requests for permis-
sion to build must be acted on promptly.
It forbids regulations from favoring one
sort of wireless service provider over
another. And it prohibits local govern-
merits from regulating radio fi-equency
emissions. A federal standard has been
set in this area and demonstrated compli-
ance with that s~.andard is all a locality
can seek from the permit applicant.
Regular communication wittt the car-
riers serving a community is also essen-
tial. At least once a year every locality
should invite the telecommunications car-
riers serving the area to a regular meet-
ing. Use this time to review the contents
of permit applications. Place special em-
phasis on the type of information that is
expected from the applicants. Identify
the parts of the application that can be
left blank, which must be filled out, and
under what conditions an application will
be rejected as incomplete. Also, ask ser-
vice providers where they may want to
build facilities in the next year.
Increasingly telecommunications com-
panies are teaming up with locr,', govern-
ments to sponsor regional wireless semi-
nars. These educational for-ms usually
last a full day and bring together local
the Wireless Revolution Means
this moment, thousands of
site acquisition representatives"
are standing at planning counters
[~"~ everywhere in the U.S., demand-
, · ,atoning permits--now. In most com-
munities however there is no plan for
accommodating the sites over the long
haul.
Both city and county governments typi-
cally categorize personal wireless facili-
ties as special or conditional uses. Yet
they often rely on outdated radio trans-
mission and satellite dish zoning provi-
sions to regulate them.
But some communities have instituted
multitiered review procedures. Under
some of these procedures, residential zones
get one approach commercial and indus-
trial zones another; monopoles require
review while mounts 50 feet and less are
permitted administratively.
The advantage to a zoning ordinance
approach is that each cell site is dealt
with consistently and uniformly. The dis-
advantage is that the jurisdiction deals
with cell sites one at a time. As a result,
wireless carriers are asking for~ and local
governments are approving, vast systems
on a site-by-site basis.
Some cities and counties--knowing that
they are running out of goodcdll Sites
-'eview applications in bulk: San Diego,
- example, requires annual submissions
some communitiek ledsk'public land--including water tanks--to
of all cell sites from eackcarrierl Man}; : iuireless carriers. Local governments using that approach have control
jurisdictions also encourage or, reqfiire <' -~ ouer ~elt Sites, but they also open themselves up to potential lawsuits.
co-location.
San Francisco has a book of guideli/f~S thebest guidelines don't provide the cer- fact that some communities are leasing
for planning commissioners to use in taintl/of a good plan. public land--water tanks, parkland, rights-
reviewing cell site applications. But even -The situation, is complicated by the of-way--towireless carriers. Leasing public
11
1992
I993
1994
1995
2000
34,000
0 5,000 10,000 15,000 20,000 25,000 30,00035,000
t segment ol'~ map in ct hvpotheticr~l city/!ertl shows where
crll 3ires ;nigi~t be placed if nom~ of the 10 carriers will :o-
/oc~He. Above: l'he number o/']~eop/e using ce/hd~w' devices is
e.,:pected lo explode within the next/;,w ve~u's.
government officials, community lead-
ers. industry representatives, and other
interested parties. The topics include wire-
less communications; the types of facili-
ties needed; the method used to select
possible sites; how the permitting pro-
cess works; and health issues and prop-
erty values. AT&T Wireless Services has
held such gatherings in Boston, New York,
Baltimore, Washington, D.C., and sev-
eral other jurisdictions.
Local governments should also review
their land-use legislation to be sure that it
coincides with the provisions of the tele-
communications act. Other elements that
jurisdictions should consider are: use by
right in industrial and commercial zones;
a hearing process for residential areas;
specific, as opposed to qualitative, re-
view standards; fixed time frames for
permit processing; and separation of the
land solves two problems: Local govern-
ments can choose the best locations for
wireless facilities, and applicants can get
in and out of the permitting process quicMy.
New companies have popped up to mar-
lqet these public lands and to direct the
carriers to "easy" city and county sites.
The problem is that the wireless firms
often insist on an exclusive arrangement
with the community, in effect tying up
access to public land--and exposing the
community to potential legal challenges.
Further, private landowners may object
to the competition from a public body.
An alternative approach is to require
all ceil sites to be located on land owned
or leased by the jurisdiction. Ringwood,
New Jersey, is trying that, although it has
only three publicly owned sites that qualify.
The suburban Passaic County commu-
nit/has also offered to lease land from
private landowners seeking a cell site
and then to sublease the site to a wireless
carrier.
A wireless master plan is another way
to go. The town of Windsor, Connecticut,
is considering the preparation of such a
plan for the area between Hartford and
Bradley International Airport. Also, the
Mid-America Regional Council, which
encompasses eight counties and 114. mu-
nicipalities in two states around Kansas
City, has begun a two-phase process that
could lead to a regional wireless master
plan.
The master plan approach involves two
steps. The first is to approve the areas
where celt facilities could be located. The
second step is to review individual site
applications. A more stringent review
would be required for properties not iden-
tified in the master plan. A twO-step ap-
proach has the advantage of assuring
public input at an early stage. Because it
requires a map, it is also thd'only ap-
proach that ensures some degree of cer-
tainty.
Given all the options, I would say that
the wireless master plan is the tool of
choice. At this writing, only a few cities
and counties are exploring the master
plan approach, so there is no model to
follow. But carriers are bound to tire of
the ad hoc approach of siting one cell
facility at a time. I predict that they will
soon request the certainty that comes
with a wireless master plan.
The courts are also pointing the way.
There have been four important court
cases on wireless planning so far, and
there are sure to be many more. Earlier
this year, a federal court upheld a six-
month moratorium imposed by the city
of Medina, Washington. Sprint Spectrum
had asked for a preliminary injunction to
override the moratorium, which Medina
argued it needed to give it time to plan for
cell sites. But another federal court up-
held the contention of BellSouth Mobil-
ity that Gwinnett County, Georgia, had
not presented sufficient evidence to sup-
port its denial of a permit.
Meanwhile, a group of residents in
Franklin County, Texas, won a tempo-
rary injunction against construction of a
multicarrier tower, which they argued
would impair their quality of life and
diminish property values. Franklin County
has not required permits for tower con-
struction. In Pennsylvania, the state court
of appeals denied Bell Atlantic Mobile
Systems' claim that a 150-foot celtular
fowler was an essential service that should
be permitted as of right.
The courts are a bellwether of what's
ahead for planners. It's clear that plan-
ning is needed'. So is a factual record and
a review process.
Ted Kreines, AICP
Kreines is president of Kreines & Kreines in
Tiburon, California. The firm specializes in
wireless planning.
Terms of Art
Applicants The people and compa-
nies that apply for personal wireless fa-
cilities: site acquisition representatives,
lawyers, cell site builders, landowners,
and others. Be aware that some appli-
cants seek approval of cell sites and then
sell or lease them to the carriers or land-
owners they represent.
Carriers Companies licensed by the
FCC to build personal wireless facilities
and operate personal wireless services.
There are also unlicensed carriers.
Personal wireless facilities Described
in the Telecommunications Act of 1996
as facilities for the provision of personal
wireless services.
Personal wireless services Commer-
cial mobile services, unlicensed wireless
services, and common carrier wireless
exchange access services.
12 Planning December 1996
An example of co-location, showing
several different services that can be
accommodated at different heights on
one tower.
public hearing and the actual vote on
approval.
Getting together
Local legislation should also include pro-
visions for co-location--the sharing of
facilities. Everyone seems to want co-
location. Local governments like
the idea because it reduces site
proliferation, and industry likes
it because construction and op-
erating costs are reduced. There
are some drawbacks, however.
For one thing, co-location cre-
ates larger sites. The more carri-
ers sharing a facility, the bigger
(and potentially more intrusive)
it will be. Also, permit review
time may increase dramatically,
and the extra height of the facil-
ity can push the application into
a more stringent review category.
Finally, established cellular car-
riers may have reasonable con-
cerns about revenue, operations,
and liability when a new carrier
is added to an exist-
ing site.
For local govern-
ments seeking to
make co-location an
attractive option for
wireless providers,
I have three sugges-
tions.
First, provide in-
centives to co-locab
ing parties. Assure
the carriers that the
time needed to re-
view a co-location
request and the rules
involved will not
greatly exceed those
for a single applicant.
Second, consider giv-
ing the co-locators
access to municipal
property, speeding up per-
mit processing, perhaps even
lowering application fees.
Third, take advantage of
the fact that local govern-
ment is the central clearing-
house for all permit applica-
tions. Use your regular annual meeting
with the cellular companies as an oppor-
tunity to register potential permit appli-
cants. Every time a permit is sought, the
registered parties could be informed and
invited to contact the applicant to discuss
sharing the facility.
A final suggestion: Look to the future.
Ask industry representatives to share their
expectations of what's ahead in the way
of services, carriers, and concerns.
William Covington is land-use and environ-
mental policy counsel to AT&T Wireless Ser-
vices in Kirkland, Washington. He was for-
merly director of right-of-way permitting for
King County, Washington.
The answer to the question on page 9.
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S.652
Telecommunications Act of 1996 (Enrolled Bill (Sent to President))
SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION
STANDARDS.
(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section 332(c) (47
U.S.C. 332(c)) is amended by adding at the end the following new paragraph:
'(7) PRESERVATION OF LOCAL ZONING AUTHORITY-
'(A) 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.
'(B) LIMITATIONS-
'(i) The regulation of the placement, construction, and modification of personal wireless
service facilities by any State or local government or instrumentality thereof--
'(I) shall not unreasonably discriminate among providers of functionally equivalent
services; and
'(II) shall not prohibit or have the effect of prohibiting the provision of personal
wireless services.
'(ii) A State or local government or instrumentality thereof shall act on any request for
authorization to place, construct, or modify personal wireless service facilities within a
reasonable period of time after the request is duly filed with such government or
instrumentality, taking into account the nature and scope of such request.
'(iii) Any decision by a State or local government or instrumentality thereof to deny a
request to place, construct, or modify personal wireless service facilities shall be in
writing and supported by substantial evidence contained in a written record.
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'(iv) 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 emissions to the extent that such
facilities comply with the Commission's regulations concerning such emissions.
'(v) Any person adversely affected by any final action or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with this subparagraph
may, within 30 days after such action or failure to act, commence an action in any court
of competent jurisdiction. The court shall hear and decide such action on an expedited
basis. Any person adversely affected by an act or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with clause (iv) may
petition the Commission for relief.
'(C) DEFINITIONS- For purposes of this paragraph--
'(i) the term 'personal wireless services' means commercial mobile services, unlicensed
wireless services, and common carder wireless exchange access services;
'(ii) the term 'personal wireless service facilities' means facilities for the provision of
personal wireless services; and
'(iii) the term 'unlicensed wireless service' means the offering of telecommunications
services using duly authorized devices which do not require individual licenses, but does
not mean the provision of direct-to-home satellite services (as defined in section
303(v)).'.
(b) RADIO FREQUENCY EMISSIONS- Within 180 days after the enactment of this Act, the
Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules
regarding the environmental effects of radio frequency emissions.
(c) AVAILABILITY OF PROPERTY- Within 180 days of the enactment of this Act, the
President or his designee shall prescribe procedures by which Federal departments and agencies
may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way,
and easements under their control for the placement of new telecommunications services that are
dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission
or reception of such services.
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Seveml new wireless communications
technologies have developed in the past
few years. Many are forms of
telecommunications services, such"as
paging service and cellular telephone service.
In the years ahead, personal communications
service ("PCS") will also likely become more
popular. Others are forms of television service
delivery, such as direct broadcast satellite
("DBS") service. Although these technologies
are "wireless," they all require, to varying
degrees, the construction of either transmitting
equipment (placed either on towers or sometimes
on smaller "mono-poles") or receiving equipment
(such as satellite dishes), or both, on public or
private land. Most also require construction in the
rights-of-way to lay wires to connect the towers
with studios, switches, and computer control
points.
The cellular industry estimates that the number
of towers needed will increase from 20,000
currently in use to over 100,000 nationwide over
the next five to ten years.
The businesses seeking to offer these new
services t primarily the wireless
telecommunications industry and the DBS
industry -- tried very hard to persuade Congress
and the FCC to preempt all local zoning and other
regulatory authority over their facilities. Local
governments responded by pointing out that they
are not delaying industry growth. And industry
claims that local zoning and safety regulations are
major barriers to expansion of
telecommunications competition are greatly
exaggerated. A survey by the American Planning
Association, for example, showed that 92
percent of applications for cellular towers were
approved by local governments, most within 60
days.
Thanks to the efforts of local governments and
organizations, including the National Association
of Counties and the American Planning
Association, the 1996 Act preserves and affirms
local authority over the placement, construction
and modification of cellular telephone facilities
and other "personal wireless telecommunications"
service facilities.
The Act also instructs the FCC to adopt
rules that "prohibit restrictions that impair a
viewer's ability to receive video programming"
using satellite dishes, television antennas, and
multipoint multichannel service antennas.
Unfortunately, the FCC has responded to this
latter directive with rules that greatly limit
local regulation of these types of antennas. The
FCC has also limited non-governmental
restrictions of dishes and antennas, such as
homeowner association rules, condominium
rules and private covenants that affect an
owner's own property, and is considering how
far to go in prohibiting restrictions that are
contained in leases and for common areas of
condominiums, cooperatives and homeowner
associations.
These FCC proposals are vigorously opposed by
local government organizations, including the
National Association of Counties and the
American Planning Association. Efforts will
continue to get the FCC to reconsider and revise
these rules, and if necessary may challenge the
FCC in the courts. In the meantime, the following
paragraphs describe the effect of the Act and the
FCC's current rules on various kinds of
telecommunications facilities, and present some of
the questions that local governments need to
answer.
Personal Wireless Service
Facilities
Personal wireless services include cellular
telephone, personal communications services,
other mobile radio services, and any other FCC-
licensed wireless common carriers. Although
these services are classed together, each service
works with a somewhat different technology and
requires a different type of antenna and
transmission facility.
Cellular telephone service works by
transmitting signals from relatively low-power
transmitters on tall towers. Each transmitter
covers an area called a "cell." As the user travels
through one cell to another, the signal is "handed
off" from one transmitter to another in the
adjacent cell.
Cellular transmitters are on towers of varying
height, usually ranging from 40 to 300 feet and
higher. Cellular transmitters also can be located
on top of tall buildings. The number of towers
needed to serve a particular area depends on the
terrain and the population density-- more users
may mean more and smaller cells, and therefore,
additional facilities, with varying heights required
for clear transmission.
Personal communications service, or "PCS", is
A COUNTY AND [.OC, AL OFFIC, IAL$ GUII~. TO IH£ ~'£L~¢OMMUPlICAIIOPI~ AC, T OF 1~6 i~
a newer technology just starting to be constructed
that uses even smaller "cells" than the traditional
cellular service. It will compete with cellular
telephone service and may become the service of
the future if it provides better quality and
reception, transmits data and offers paging. Since
PCS transmitters cover an even smaller
geographic area than cellular service, more.
transmitters and towers will be needed, and
towers will be placed much closer together.
Specialized mobile radio (SMR) services
typically consist of one or more base station
transmitters and a mobile radio unit in the vehicle
or premises of the user. Communications are
transmitted through the base station by telephone
wires or by low-power radio signals. Users of SMR
include fleet-dispatched taxicabs and delivew
services and "closed system" mobile telephone
Licenses to use specific portions of the airwaves
in specific geographic areas for cellular telephone,
PCS, and SMR services are issued by the FCC.
SMR licenses have been around a long time,
cellular licenses were first issued about 15 years
ago, and PCS licenses are brand new. The FCC
has allocated new licenses to increase the number
of service providers. A particular geographic area
can now have two cellular providers, six
broadband PCS providers, 26 narrow-band PCS
providers, and an undetermined number of SMR
licensees-- all looking for sites for their facilities.
The provision of the new Act concerning
personal wireless communications facilities
generally preserves local zoning authority over the
siting, construction, modification, and use of these
facilities, but requires zoning and related local
laws to satisfi/new requirements. The provision
re ads:
Sec. 704 Facilities Siting; Radio
Frequency Emission Standards
a) National Wireless Telecommunications
Siting Policy
Section 332(c) (47 U.S.C. 332(c)) is
amended by adding at the end the following new
paragraph:
"(7) Preservat/on of Loca/Zoning Authority.
"(A) General Authori~
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.
"(B)' Limitations
"(i) The regulation of the placement,
construction, and modification of personal
wireless service facilities by any State or
local government or instrumentality
thereof.
"(I) shall not unreasonably
discriminate among providers of
functionally equivalent services; and
"(II) shall not prohibit or have the
effect of prohibiting the provision of
personal wireless services.
"(ii) a State or local government or
instrumentality thereof shall act on any
request for authorization to place,
construct, or mod/fy personal wireless
service facilities within a reasonable
period of time after the request is duly
filed with such government or
instrumentality, taking into account the
nature and scope of such request.
"(iii) Any decision by a State or local
government or instrumentality thereof to
deny a request to place, construct, or
modi~ personal wireless service facilities
shall be in writing and supported by
substantial evidence contained in a
written record.
"(iv) 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 emissions to the extent
that such facilities comply with the
Commission's regulations concerning such
emissions.
"(v) Any person adversely affected by any
final action or failure to act by a State or
local government or any instrumentali~
thereof that is inconsistent with this
subparagraph may, within 30 days after
'such action or failure to act, commence an
action in any court of competent jurisdiction.
e, A COUNIY AND LOCAL OFFICIAL5 GUIDE TO THE TELECOMMUNICATIOI~ ACT oF 1996
The court shall hear and decide such
action on an expedited basis. Any person
adversely affected by an act or failure to
act Irff a State or local government or an:~
instrumentality thereof that is inconsistent
with clause (iv) may pe£ition the
Commission for relief.
"(C) Definltions.-For purposes of this paragraph°
"(i) the term 'personal wireless services'
means commercial mobile services, ~tnlicensed
wireless services, and common carrier wireless
exchange access services;
"(ii) the term 'personal wireless service
facility, means facilities for the provision of
personal wireless services, and
"(iii) the term 'unlicensed wireless service'
means the offering of telecommunications
services using duly authorized devices which do
not require individual licenses, but does no~
mean the provision of direct.to*home sa£elli~e
services (as defined in section 303 (v)).".
What should a local government do to
implement this language?
This language applies certain tests to decisions
on locating wireless facilities, the grant of
permission for locating wireless facilities, and the
timing of approval or denial of requests for siting
facilities.
A county or other local government normally
has in place a general zoning ordinance. The
ordinance should be reviewed and, where
necessary, amended to deal with where, and under
what conditions, cellular towers and other wireless
facilities may be located.
Step one is to review the current zoning
ordinance and any proposed cellular siting
language to determine if the ordinance
"unreasonably discriminates among providers
of functionally equivalent services." It would be
wise to revise the ordinance as soon as possible if
the analysis reveals a need to do so.
The federal Act's requirement that a local
zoning law not "unreasonably discriminate"
means that local authorities should treat similar
facilities in the same manner. It does not mean
that all applicants for all uses must be treated the
same, even if they are competitors. For example, a
zoning ordinance that permits towers of a certain
height to be located in industrial zones but does
not permit them in residential zones is likely to
meet the test of reasonableness. On the other
hand, a zoning regulation that allows one wireless
provider to locate a tower in an industrial zone
but prohibits a second provider from locating a
similar-sized tower in the same industrial zone is
likely to attract a challenge as discriminatorg.
Different treatment based on good reasons such
as year of entry into the market, or first- come,
first-served, for a limited capacity tower site
should be more defensible. Different treatment of
similar providers with the same characteristics
and no rational distinguishing characteristics is
not.
Step two is to review your local zoning
ordinance to determine if it totally "prohibits or
has the effect of prohibiting" the provision of
personal wireless services, and make changes if
the analysis reveals a need for change. An
example of a provision that might be viewed as
"prohibiting" the provision of personal wireless
services might be an ordinance that prohibits
transmitters anywhere within the county. An
example of a provision that might be viewed as
having "the effect of prohibiting" the provision of
personal wireless services might be a limitation on
the number and location of tower sites that has
the effect of making it physically impossible for
the provider to deliver service due to the nature of
the terrain, such as large hills between the
transmitter site and the customer location, that
prevents reception of the signals.
Since each community's geography is
different, however, determinations on whether
an ordinance prohibits or has the effect of
prohibiting the provision of personal wireless
communications services will ultimately be made
on a cSse-by-case basis, hence the need for local
review.
Does the ban on prohibiting service
mean that every locality must allow a
cellular tower?
Not n~cessarily. The number and kinds of
antenna locations needed to provide adequate
personal wireless service signal coverage to a
community will vary depending on terrain and the
density of population and buildings. For example,
a community that is very small geographically and
completely residential might be able to show that
A COUNTY AND LOCAL OFFtClAL5 GU~D~. TO THE. TELECOt~MUNICATION5 ACT OF 1996
its residents will be able to receive satisfactory
service from cellular towers located in a
neighboring jurisdiction. So prohibiting the
siting of the towers in the town may not have
the effect of prohibiting the provision of the
service to town residents. It is the "provision of
the service" that must be allowed, not the
siting of the facility.
What should the locality do?
In addition to examining its current zoning and
land use ordinances, a county or other local
govermnent should undertake the same kind of
review -- and revision if necessary m of the
permitting and other processes that it uses to
grant permission to construct towers and similar
facilities in the community. Is there a standard,
written procedure for processing siting permits
and other approvals? Are similar services treated
similarly? If there are differences in fees,
processing time, bonding requirements or other
regulations, are the differences reasonably related
to the differences between facilities?
The following techniques have allowed various
local governments to accommodate facilities and
still maintain community attractiveness and quality:
Co.location
Co-location means that a number of different
providers locate their transmitting facilities
together in the same place or on the same towers
or mono-poles. Co-location also can include the
use of the same tower or pole for a number of
different kinds of telecommunications services.
Although competitors may balk, most
communications towers can -- and typically do
-- carry several transmitters of several different
providers. The illustration at the right shows the
range of services that can be accommodated at
different heights on one tower. The television
transmitting antenna, which serves ranges of 30 or
more miles, needs a very tall tower -- 750 to 1000
feet is common -- and is located on the top of
that tower. Several paging service antennas
occupy different 1 ~ocations, and FM radio, SMR
and cellular transmitters occupy lower leveh.
A local government that wants to encourage
co-location should keep in mind that it cannot
"unreasonably discriminate" among personal wireless
communications service providers. To protect a
policy of co-location from charges of unreasonable
discrimination, a local government might:
Antenna Farm .
Television
(c~mmerdal),
FU
Pagin~
Sma~ FM
Ce~ular
{un~ aM ~
Enact the policy into an ordinance.
Provide for incentives for co-location-- such
as a shorter processing time for applicants
who want to locate on a tower that has
already been approved, based on a
reasonable conclusion that such a site
requires less additional evaluation compared
to the legitimate evaluation and review
needed for a new site.
· Set ou{ in writing the application process
/~ COUNt' AND LOCAL OFr/ClAL~ GUIDe ro THC TELECOm~IUN/CATION& ACT OI= 1996
and other procedures for use of public
property.
· Offer the use of public structures and
property, if made available to one provider,
to other providers on reasonably similar
terms and conditions - no exclusive
contracts.
Advance planning
Local governments can require or encourage
companies to lay out their expected needs for
multiple tower sites over a reasonable time into
the future, rather than applying for one tower site
at a time. Localities might proyide incentives for
applicants to submit long-range plans and
multiple site applications. The application fee
structure can be used to that end, as can a
commitment to expedite processing time.
As with co-location, intergovernmental
cooperation is a key to success in sharing
limited resources across multiple jurisdictions.
Pre-determination and identification
Identifi/ing and "mapping" of appropriate
facility sites in a community can be useful. The
public works director, county engineer or an
outside engineering firm could determine
appropriate sites for cellular towers and other
personal wireless communications facilities. Small
communities might pool resources to prepare an
area-wide list of appropriate sites. This kind of
information will be very useful when a jurisdiction
evaluates a particular application. It will also help
when the county reviews and revises its zoning
ordinance. With such a survey in hand, the local
government will also be in a better position to
approach the cellular industry for its cooperation
in agreeing to the siting plan.
Some help is also available from the FCC to
assist localities in implementing this kind of
advanced planning. The FCC maintains a general
database that lists the location and owner of all
towers over 200 feet, towers over 20 feet on
existing structures, such as on a building or water
tower, and towers that are close to airports. The
FCC also maintains a database of cellular and
SMR licensees that contains some, but not all,
information on their existing tower locations.
Joint ventures with the local government
Some local governments have invited private
telecommunications providers to bid on the
construction of towers to be shared by the local
government for public safety communications and
by the private sector for its own needs. The
private sector gets a tower site on public property,
and the local government gets a facility built at
little or no cost. Other examples of joint ventures
include:
· Leasing space to telecommunications
providers on an existing or new public safety
tower.
Leasing space to telecommunications
providers on public structures that are not
otherwise used for telecommunications M
on a water tower, for example, or on top of a
county office building.
· Leasing street light stations and publicly-
owned utility poles.
Leasing publicly-owned land for
construction of wireless communications
facilities.
Another caveat: .the local government may
assume added liabilities as a tower owner.
Leasing public structures requires compatibility
reviews. For example, if a single water tower
serves the entire community, the risks of damage
or water contamination may outweigh the benefits
of co-location. Any structure that has a radio
antenna on it that extends more than 20 feet
above the structure is also subject to FCC and
FAA aeronautical limitations and requirements
and must be registered with the FCC by the
owner. Recently amended federal law makes the
tower owner, not just the wireless service provider,
responsible for safety, compliance with FCC and
FAA rules, and other regulations, including
painting and lighting. In this context, the term
"tower" includes any structure to which an
antenna is attached, including buildings.
In implementing a joint-venture with private-
sector providers, a local government should:
· Consider conducting a study of the local
government's telecommunications needs;
Consider a lease-purchase arrangement that
transfers the facility to government
ownership after a certain time; a mm-key
arrangement whereby the private provider
builds to suit; or a long-term lease where
ownership of the facility stays in private hands;
A Co~Nn~ aNo locat Omclat~ Guioe ro~ TeteCO~A~UNICar~O~ Act or 1996
Provide for non-discriminatory use of the
facility by all eligible telecommunications
providers;
· Conduct a survey of potential sites for
construction;
· Develop a set of specifications for joint
venture proposals;
· Issue a request for joint venture proposals
that is publicly circulated; and
· Accept Competitive bids and evaluate them
through regular contract procedures.
To implement a public land and structures
leasing program, consider the following:
· A survey of appropriate sites and
structures that might be made. available;
Standard terms and conditions for leased use
of public space and structures, including
fees, indemnity, quality of construction,
inspection and code compliance
requirements;
· Standard procedures for applications,
negotiations and awards of leases;
· An ordinance or regulation;
· Public disclosure of known leasing
opportunities and terms and conditions; and
· Publicly documenting decisions.
The-management responsibilities involving
multiple user antenna sites are not trivial, and the
local government may wish to hire a consultant to
manage the interference problem for the local
government, or lease the site to a manager for a
percentage of the rental revenue. This latter
approach, properly handled, obviates the problem
of determining what an appropriate rental fee will
be, which will vary from location to location and
among the different radio services at each
location.
What about the Act's procedural
requirements?
A locality should also review the local zoning
ordinance and other regulations to ensure
compliance with the procedural requirements of
Section 704.
A decision on an application for the
placement, construction, or modification of a
wireless facility site ~ l~blic or private ~ must
be made "within a reasonable period of time."
What is a reasonable time?
The Best Answer:
The amount of time required for you to reach a
reasonable decision.
A Good Answer:
Roughly the same time as it takes to review and
approve or deny applications of a similar nature
and scope for non.telecommunications facilities
-- no more and no less.
A decision deny/ag a request for
permission to install or construct wireless
telecommunications facilities must be in
s~elting and must be based on evidence in a
written record. Most zoning boards and
planning commissions do this already. Some
public works departments, however, may have
· to change their procedure. Be sure you have:
· written applications;
· written materials documenting the review of
the application by the staff or officials;
· written transcripts of any hearings on the
application;.
· written copies of testimony presented at
any hearing;
· a written denial; and
references in the written denial to the
evidence in the record that formed the
basis for the denial.
Some additional questions a local
government may face:
Citizens are concerned that cellular towers
may emit harm~l radiation. Can we deny
an application because of this concern?
As long as the tower meets the radiation
emission standards that have been set by the FCC,
OA COUI'IIY Al'lO [OCAt OFFICtAI.$ GUlD~ l'O ri'lC T~tI~COMMUNtCATICP5 Act or 1996
a local government cannot deny a permit based
on concern about radiation. You can, however,
require that the applicant provide evidence that
the tower meets the FCC standards. -
We need time to review and rev/se our
ord/nances. Can we ho/d off making any dec/s/ohs
or taking any al~plications until we do so?
The cellular industry will argue that any delay
or moratorium in processing applications in effect
prohibits their ability to provide service. The U.S.
District Court for the Western District of
Washington (State), however, in Sprint Spectrum,
L.P.v. City_ of Medina, 1996 U.S. Dist. LEXIS
6469, has recently ruled that a city that placed a
six-month moratorium on applications for towers
while it revised its zoning ordinance did not
violate the Telecommunications Act. The court
said that the city clearly intended to process and
approve applications once the ordinance was
revised, and that a temporary moratorium was,
under that State's law, an appropriate zoning tool.
Who derides if a local government body has
vlo/at~d the Telecommunkations Act provisions
on wireless communications facilities?
Claims that a local government has violated
this section of the Telecommunications Act will
be adjudicated by the appropriate state or federal
court. '~Any person adversely affected" by the
action of the local government may bring in an
action in either state or federal court. The only
issue that can be appealed to the FCC is a claim
that the local government improperly denied an
application based on the harmful effects of radio
frequency emissions.
Are there any federal requirements applicable
to a wireless provider? Can a laoxl
government require that these be met before
issuing a zoning or other permit to construct
or modlf~ a cellular tower or other ~reless
service facili~ ?
Yes. All antenna structures used for
communications must be approved by the FCC in
accordance with its regulations. In general, towers
over 200 feet and antennas that extend more than
20 feet above a supporting structure must meet
Federal Aviation Administration requirements for
marking and lighting, and towers in cri6c~_l
airspace near airports need other FAA clearances.
In addition, towers must meet the requirements of
the National Environmental Policy Act (NEPA).
The FCC requires applicants to show that a new
tower will comply with federal rules affecting
wilderness areas, wildlife preserves, endangered
species, historical sites, American Indian religious
sites, flood plains, wetlands, high-intensity white
lights in residential neighborhoods, and excessive
radio-frequency radiation exposure. Applications
for towers that may have a significant
environmental impact must go on public notice
for comment.
A court is likely to find a local government
acted reasonably if it first required that an
applicant demonstrate that the tower has met
these federal requirements as a condition of local
site, construction, or modification approval.
Does the FCC offer any ms/stance to local
governments in siting and modibing wireless
facilities?
Yes. The FCC has several databases available
with information on licenses granted by area and
by service. The FCC also has designated a specific
person to answer local governments' technical
questions. For information contact Steve
Markendorff, Chief of the Broadband Branch in
the Wireless Telecommunications Bureau, at
(202) 418-0620 (e-mail: smarkend@fcc.gov). To
access the databases .on-line, call Interactive
Systems,/nc., 1601 North Kent Street, Suite
1103, Arlington, Virginia, (703) 812-8270, or visit
the FCC Wireless Bureau's Public Reference
Room, 2025 M Street, N.W., Washington, D.C.
20554, (202) 3418-1350.
Satellite "Dishes"
The Act deals with satellite service reception
antennas differently than it does with wireless
telecommunications towers and antennas. And
the FCC has interpreted the Act's provisions
relating to satellite dishes as being far more
restrictive of local regulations.
Satellite programming services involve the
transmission of signals from a satellite to a
receiver, usually a round "dish" that can vary in
size from 18 inches to 10 or more feet in diameter.
The size of the dish varies with the nature and
strength of the satellite transmissions. The
familiar, large bacio/ard dishes are known as
Band" Satellite dishes. These dishes are used to
receive lower powered transmissions. More
recently, direct broadcast satellite, or "DIBS," service
has appeared. DBS uses higher power transmissions,
A Coutnv ~u'~D Loc. at Orrlctats GuiD~ TO rl4c Tetecotatau~lcarlo~ ACT o1' ~996
enabling subscribers to use small 3-foot or even
18-inch dishes. A small, 18-inch flat receiver has
also been developed primarily for home use.
Satellite dishes are anchored to the ground or
to the top of buildings or terraces. Not all "dishes",
however, are used for video programming. Businesses
use dishes called Very Small Aperture Terminals,
or VSATs, for two-way data communications.
These tend to be 5 to 6 feet in diameter.
Section 207 of the Act provides that:
Within 180 days after the date of enactment of
the Act, the Commission shall, pursuant to section
303 of the Communications Act of 1934,
promulgate regulations to prohibit restrictions that
impair a viewer's ability to receive video
programming services through devices designed for
over. the.air reception of television broadcast
signals, multichannel multi.point distribution
service, or direct broadcast satellite services.
To implement this section, the FCC has issued
rules, effective in August 1996, that prohibit most
state and local restrictions on satellite dishes,
MMDS antennas, and television reception
antennas. The rules are in two parts. The first part
covers small dishes and MMDS antennas and all
television antennas. It reads as follows:
· 1.4000. Restrictions impairing reception of
Tele~,~sion Broadcast Signals, Direct Broadcast
Signals, Direct Broadcast Satellite Services or
Multichannel Multipoint Distribution Services
(a) Any restriction, including but not limited to
any state or local law or regulation, including zoning,
laM.use, or building regulation, or any private
covenant, homeowners' association rule or similar
restriction on property within the exclusive use or
control of the antenna user where the user has a direct'
or indirect ownership interest in the property, that
impairs the installation, maintenance, or use of:
(I) an antenna that is designed to receive
direct broadcast satellite service, including
or less in diameter or is bcated in Ahska: or
(2) an antenna that is designed to receive
video programming services via multipoint
distribution services, including multichannel
multipoint distribution services, instructional
television ~xed services, and local multipoint
distribution services, and that is one meter or
less in diameter or diagonal measurement: or
(3) an antenna that is designed to receive
television bi'oadcast signals,
is prohibited, to the extent it so impairs, subject
to paragraph (b). For purposes of this rule, a law,
regulation, or restriction impairs installation,
maintenance or use of an antenna/fit: (1)
unreasonably delays or prevents installation,
maintenance, or use, (2) unreasonably increases
the cost of installation, maintenance, or use, or (3)
precludes reception of an acceptable quality signal.
No civil, criminal, administrative, or other legal action
of any kind shall be taken to enforce any restriction or
regulation prohibited by this rule except pursuant to
paragraph (c) or (d). No fine or other penakies shall
accrue against an antenna user while a proceeding
is pending to determine the validity of any restriction.
In an attempt to provide guidance on
implementing this part of its rules, the FCC has
given several examples of local govemment
restrictions that would not be prohibited. The
FCC has indicated that a requirement that dishes
be placed in rear yards whenever possible or that
they be screened from sight would not be
prohibited, as long as the result was not to prevent
reception of a signal or to impose "unreasonable"
delay or unreasonable costs. The FCC has not said
what it means by ."unreasonable delay." It does say
that if costs are imposed to screen other similar
devices in the neighborhood, such as air
conditioning units or trash receptacles, similar
requirements imposed on antennas may be
considered reasonable.
This new FCC rule provides certain exceptions
to the general prohibition on restrictions on small
satellite dishes and antennas. A restriction is
permitted, even if it impairs or prevents reception,
or imposes unreasonable cost or delay, under the
following circumstances:
(1) it is necessary to accomplish a clearly
defined safety objective that is either stated
in the text, preamble or legislative histor2t of
the restriction or.described as applying to
that restriction in a document that is readil~y
available to antenna users, and would be
". applied to the extent practicable in a non.
discriminatory manner to other
appurtenances, devices, or fixtures that are
COUNTY AND LOCAL OFFICIALS GUIDE TO THE. TELE. COt¥1MVNICATtON3 ACT OI· 1996
comparable in size, weight and appearance
to these antennas and to which local
regulation would normally apply; or
(2) is necessary to preserve an historic
district listed or eligible for listing in ~
National Re, stet of Historic Places, as set
forth in the National Historic Preserua~
Act of 1966, as amended, 16 U.$.C. §
470a, and imposes no greater restrictions on
antennas covered by this nde than are bnl~u~
on the installation, maintenance or use o~
other modern appurtenances, devices, or
£uctures that are comparable in size, weight
and appearance to these antennas; aM
(3) it is no more burdensome to affected
antennas users than is necessary to achieve
the objective described above.
The FCC has given several examples of safety
restrictions on small satellite dishes, MMDS
antennas and television antennas that it considers
acceptable. These include restrictions on the
closeness of antennas to high voltage power lines,
requirements to keep a clear line of sight at
intersections, requirements for adequate bolting
or use of guy wires, prohibitions on blocking fire
exits, requirements that antennas be a dismn~
from the lot line, and, in general, provisions of the
National Fire Association's model code anti the
BOCA Code of the Building Officials & Code
Administrators International, Inc.
Note that the exception in the rule for
restrictions in historic districts applies tnb/to
federally recognized or eligible sites or areas. To
enforce a restriction in a state or local historic
district that is not on or eligible for the National
Register, a local government would have to obtain
a waiver from the FCC.
Local governments that wish to enforce
restrictions that do not meet these exceptions will
have to apply to the FCC for a waiver. Disputes
about whether a restriction for which a waiver has
not been issued can be enforced can be taken to
court or to the FCC.
The second part of the rule applies to medium
size satellite earth stations that are between one
and two meters in diameter and are located in
commercial or industrial areas. That rule is much
broader-- it preempts any regulation that merely
"affects" these dishes, not just regulations that
impair reception. It reads as follows:
25.104 Preemption of Local Zoning of Earth
Stations
(b) ( l ) Any state or local zoning, land-use,
building, or similar regulation that affects the
installation, maintenance, or use of a satellite earth
station antenna that is two meters or less in
diameter and is located or proposed to be located in
an:~ area where commercial or industrial uses are
generally permitted by non-federal land.use
regulation shall be presumed unreasonable and is
therefore preempted subject to paragraph (b) (2 ).
No civil, criminal, administrative, or other legal
action of an:~ kind shall be taken to enforce any
regulation covered by this presumption unless the
promulgating authority has obtained a waiver from
the Commission pursuant to paragraph (e), or a
final declaration from the Commission or a court of
competent jurisdiction that the presumption has
been rebutted pursuant to paragraph (b) (2).
Counties and all other local governments that
believe their building code, zoning, and other
regulations pertaining to satellite dishes between
one and two meters in size in commercial and
industrial areas are reasonable and want to
enforce them must apply to the FCC for a waiver.
To obtain a waiver, the local governing body
must file an original petition and two copies by
mail or hand delivery (faxes are not accepted)
with the Secretary, Federal Communications
Commission, 1919 M Street, N.W., Washington,
D.C. 20554. The petition is a legal document in a
form prescribed by the FCC that should identifi/
the specific regulation for which the local
government wants a waiver, and discuss in
convincing detail the reasons why the regulation
meets the criteria for a waiver. The FCC will
assign the petition a number and issue a public
notice that the petition has been filed. Anyone
opposed to the petition may file comments with
the FCC within 30 days after the Notice is
published, and replies to the opposition may be filed
by interested parties, including the local
government, within 15 days from the date the
oppositions are due. All the comments and replies
are public documents. The FCC has not established
any deadlines for itself to make a decision on
petitions from local governments for waivers. The
burden of proof is on the local government to
demonstrate that the restriction is reasonable.
A CouNlY AHD tocAt OFFiCiALS I~UiDE TO THE TELECOMMUNICATIONS ACT OF IDg6
Finally, for satellite dishes more than two
meters in diameter, the FCC has kept in place
previous rules. The FCC did not immediately
prohibit the enforcement of local regulation of
these larger dishes, but provided that a citizen
could petition the FCC for a declaration that the
local or state regulation affecting larger dishes is
preempted. If a local regulation of larger dishes is
challenged, the burden is again put on the local
government to prove that its regulation is not
unreasonable. A citizen or business that believes
it has been aggrieved by the application or
potential application of a state or local zoning or
other regulation affecting the larger dishes must
file a petition with the FCC asking that the
regulation be declared unreasonable. The
petitioner must show that it has exhausted all
local administrative remedies before asking the
FCC to get involved. The petitioner must show,
for example, the normal zoning .or other appeal
process has been completed.
A county or other local govemment will know
when someone has appealed to the FCC because
the petitioner must serve a copy on the
appropriate local officials, and the FCC will send a
copy of its notice that the petition has been filed
to affected parties by certified mail. After public
notice the local government and others will have
30 days to comment, and an additional 15 days for
replies. Again, the FCC has not established any
deadlines for its own decision making.
In filing a petition to enforce its regulations or
to defend itself against a petition to bar
enforcement, a local government will want to
consult its attorney or an attorney specializing in
FCC matters.
Television Antennas
and MMDS Antennas
Common television antennas range from small
roof-top extensions to large free-standing
reception towers used by businesses and
homeowners in outlying areas. MMDS, also
known as "wireless cable," is a service involving
the transmission of multiple channels of television
programming through earth-bound (rather than
.satellite) transmitters. To receive MMDS, a
subscriber must have a special antenna installed.
The FCC has adopted the same rules and
procedures for MMDS and television antennas as
for small satellite dishes.
Private Covenants
and Restrictions
In many jurisdictions, restrictions on the use or
plac,',~,-,xt of television antennas and satellite
dish~ am contained in restrictive covenants in
private developments rather than in any local law
or zoning ordinances. The FCC's rules on small
satellite d'ushes and antennas discussed above
apply to these private rules and covenants if the
pmpert~ question is owned or controlled by the
antenna use~ The FCC has not yet made a
decision on how to treat restrictions that apply to
rental property, such as provisions in a tenant's
lease that forbid putting an antenna on the roof,
or restrictions that apply to common areas of
condominiums, cooperatives and similar property.
Telecommunications Facilities
on Federal and State Property
Finally, local governments that have federal
buildings or federally owned lands such as
national parks and forests within their borders will
be interested in new section 704(c) of the
Telecommunications Act. This provision should
be a model for local governments considering
adopting siting policies. Ideally, this policy could
be adopted by the FCC as the standard for all
government entities engaged in cellular tower
siting. The provision encourages federal agencies
to make federal property, rights-of-way, and
easements available for a broad range of private
sector telecommunications facilities, including
television broadcast towers, cellular telephone
towers, and microwave transmitters.
The General Services Administration has
established policy guidelines for federal agencies to
carry out this provision. In contrast to the proposals
of the FCC, the GSA policy is respectful of
governmental interests m both federal, state and
local. It requires federal agencies to act on requests
for siting commercial facilities "in accordance with.
.. State and local laws and regulations, and
consistent with.., public health and safety
concerns, environmental and aesthetic concerns,
preservation of historic buildings and monuments,
protection of natural and cultural resources .... "
Local governments may want to contact the local
or regidhal office of federal agencies that have
buildings or land in the community to ensure that
this coordination takes place.