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Action Alert — Industry Group Seeks to Further Erode Local Control of Wireless Antenna and Tower Siting.Send Comments to the Federal Communications Commission (FCC) by September 29, 2008
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Action Alert

Updated September 26, 2008
Contact: Virginia Hines
info@EMRNetwork.org

Subject: Wireless Industry Association (CTIA) Seeks to Pre-empt Local Control of Wireless Antenna and Tower Siting.

Action: Urge the Federal Communications Commission (FCC) to deny CTIA’s petition

New Deadline For Comments: September 29, 2008 (Extended from September 15)

The CTIA’s proposed changes:
On July 11, 2008, CTIA, the trade association of the cellular telephone industry, petitioned the FCC to declare new limitations on local zoning authority as it affects cell tower and antenna siting, which, if approved, would pre-empt local ordinances and state laws. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-1913A1.pdf

Specifically, CTIA requests the FCC to:

  • Force municipalities to act on wireless antenna or tower zoning applications within 45 or 75 days;
  • Rule that applications are automatically “deemed granted” if a local government misses these deadlines;
  • Prevent municipalities from considering the presence of service by other carriers in evaluating an additional carrier’s application for an antenna site; and
  • Preempt any local ordinance that would automatically require a variance for cell tower applications. (It appears that this would in effect preempt local wireless overlay districts, setbacks and height restrictions, thereby gutting existing local wireless bylaws.)

What could happen if the proposed changes were approved:
If our interpretation is accurate, these proposed changes could lead to situations where wireless companies would be allowed to approach private individuals, including our neighbors, to site antennas on their property – without restriction. Given that these companies offer sizeable, yearly compensation for antenna space, many people would not be in a position to reject their offers. Property valuations would likely drop near such installations, and neighbor-to-neighbor acrimony would rise. Moreover, this would pave the way to increased exposure to microwave radiation where we live, work and play.

Exposure to electromagnetic radiation has been shown to cause biological disruption which can lead to a variety adverse health effects, including but not limited to childhood leukemia, adult brain tumors, childhood brain tumors, genotoxic effects (DNA damage and micronucleation), neurological effects and neurodegenerative disease, immune system disregulation, allergic and inflammatoryresponses, breast cancer in men and women, miscarriage and some cardiovascular effects. http://www.bioinitiative.org/report/index.htm

How the changes could make a bad situation worse:
Twelve years ago, the industry-driven 1996 Telecommunications Act (Section 704) had already struck a grave blow to local governing authority, resulting in the widespread build-out of the “seamless” network of cell phone towers and antennas nationwide that we see today. The ’96 Telecom Act accomplished this by:

  • Forcing towns to do business with any comparable wireless carriers that submit applications; to do otherwise is considered to be “discriminatory” practice, with legal consequences.
  • Prohibiting towns and cities from banning wireless communication facilities (cell phone towers and antennas) in their communities; to do so is considered to be in violation of federal law.
  • Reducing local governing authority to the comparatively marginal area of regulating antenna and tower placement through such means as overlay districts, setbacks, and tower height restrictions, etc.

Following the ’96 Telecom Act, many towns and cities, though not all, crafted tower and antenna siting bylaws within these severe strictures. But the curtailments didn’t end there. No bylaw, according to the Act, could be based on environmental impact, which is interpreted by the telecom industry to include human health effects. Even so, these local bylaws have been the last line of defense that communities could look toward for protection of their health, environment, and properties.

And now, even this last remnant of local authority may be pre-empted, if the CTIA’s petition is approved!

What You Can Do:
Send a letter to the FCC by September 29, 2008, urging it to deny the CTIA’s petition.

Click here for directions on mailing and emailing your letter.
Click here for recomended Talking Points when writing to the FCC Secretary.

If possible, please send a copy to the following to maximize the impact of your letter:

· Your local governing boards – so they will notify their colleagues in other towns and cities
· Your state representative & senator
· Your Congressmen
· Your City and local papers
· The EMR Network – so we can track the effect of your letters. Email: info@emrnetwork.org

Legal Actions Taken To Date:
On August 22, Montgomery County, Maryland, and NATOA et al. filed motions to extend these deadlines. http://www.millervaneaton.com/00141415.PDF

On September 10, 2008 the FCC granted an extension. The new comment deadline is September 29, 2008. (Extended from September 15, 2008)

________________________________________________________________________________

Click here for Health Effects of exposure to microwave radiation from wireless technology.
http://www.bioinitiative.org/report/index.htm

Click here for the FCC Public Notice of CTIA’s petition:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-1913A1.pdf

Click here for Legal Analysis of CTIA’s petition by Miller & Van Eaton (MVE):
http://www.millervaneaton.com/content.agent?page_name=HT%3A++CTIA+Petition+for+Declaratory+Ruling Scroll to “Documents pertaining to the FCC proceeding” at bottom, then click on “MVE’s analysis of the CTIA petition.”

Miller & Van Eaton, is a law firm in Washington DC that specializes in representing municipalities across the US on telecommunications issues. Their analysis concludes:

“If the FCC grants the CTIA petition, the careful balance in federal law respecting local zoning authority will be destroyed. Opposing this erroneous and disruptive attack by CTIA is essential to the welfare of local government zoning authority.”

INVITATION FROM MILLER & VAN EATON TO LOCAL GOVERNMENT OFFICIALS responsible for zoning policies and decisions for antenna sites:

Miller & Van Eaton is currently seeking participation from local government officials in preparation for their response to the CTIA’s petition. They would especially like to hear from local governments with experiences that contradict the CTIA’s assertions of rampant or unreasonable municipal delays, etc., in the application process, as CTIA is using this argument to push for the proposed changes. Local officials are encouraged to contact MVE, even after the FCC public comment due date of September 29, 2008.

Please contact Jim Hobson at jhobson@millervaneaton.com or Rick Ellrod at fellrod@millervaneaton.com at MVE if you can provide any information.

Visit their Web site at:
http://www.millervaneaton.com/content.agent?page_name=HT%3A++CTIA+Petition+for+Declaratory+Ruling

From the Miller & Van Eaton web site:
As you know, the petition filed by CTIA to preempt local zoning authority over wireless sites is based on numerous undocumented claims about delays by local governments. We need information about specific cases going the other way, showing

  • that local communities process claims at a reasonable pace, considering the number of applications they have before them and the issues raised;
  • that delays can be caused by tower applicants, either by failing to take local zoning into account in planning in the first place, or in the process itself;
  • that zoning procedures and negotiations lead to changes in the applicant’s original proposal resulting in a mutually acceptable plan.

We are also seeing some interest from the press in finding a “compelling example” or two where local zoning is important – for example, where localities are being pressured by applicants to accept unreasonable plans. In other words, we are looking for good examples of local conflicts over antenna or tower siting that illustrate what this issue is about – especially where the fight is currently under way.

It would help us if you could provide us with the following information:

  • If you post your ordinances or practices for wireless siting to a Web site, please send us the link(s).
  • Are requests to site towers handled through your normal zoning processes?
  • Who considers the applications – a zoning board or similar entity?
  • Do you have any special procedures that allow wireless applicants to avoid zoning procedures that would otherwise apply if they meet certain standards? What are those procedures?
  • How many applications/zoning matters overall did the board address in 2008, through June 30? In 2007? (We’re looking here to get an idea of how busy these boards are as a whole, and not just focusing on wireless. If you can provide the same information for each year 2002-2007, that would be helpful.)
  • How many wireless site applications have been filed in the same periods?
  • How many wireless site applications are now pending with you? How old is the oldest, and how old the newest?
  • If the oldest is more than 45 days (for collocations) or 75 days (other than collocations), please explain why it has not yet been resolved.
  • How long does it usually take to process an application?
  • What are some examples where the local application process resulted in agreement on a different plan from the one originally proposed?
  • Can you give examples of cases where the process was particularly controversial, why it was controversial, and how it was resolved?
  • What are some cases where the applicant itself caused delays in the process?
  • Do you ever resolve an application within 45 or 75 days, as described above? If not, why not? If not all applications are resolved in those time frames, can you explain why it may take more time?

If we need to file initial comments on Sept. 15, based on the FCC’s current schedule, it would be useful to have such information in time to get it into those comments. But we are interested even if the specifics cant be assembled until after Sept. 15, because the reply comments and follow-up ex parte meetings will allow us to continue broadening the record. We understand that you may not be able to collect all this information easily, and some information may not be available. But it would be useful to receive it even in piecemeal form. Your responses don’t need to be long – as a practical matter, we cannot put too much detail into the pleading. But we want to be sure that the Commission has information that would permit it to question the claims made by CTIA.

If you have any additional facts that you think might be useful, feel free to send them to us, even if they are not captured by our questions. Jim Hobson at jhobson@millervaneaton.com or Rick Ellrod at fellrod@millervaneaton.com.

Miller & Van Eaton, P.L.L.C. Suite 1000 1155 Connecticut Avenue. N.W. Washington, D.C. 20036-4320 phone (202) 785-0600 fax

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