Pending Ruling By Congress May Subvert Local Zoning Authority

The telecommunications industry is pressuring Congress to add language to upcoming bill that would preempt local zoning authority if they 'take too long' to approve cell phone towers or sites.

"Given all the other moving targets out there, and the high priority issues we see grabbing headlines, we need to be careful that the CTIA doesn't sneak language into the pending Broadband Bill that will strip localities of their ability to control manner and placement of this infrastructure.

The way the CTIA's request stands, they would seek federal pre-emption if a locality took more than 75 days to issue and approval or denial for a proposed project.

CTIA's Largent also said the broadband stimulus will be impeded unless Congress takes steps to speed up antenna sting approvals. "A guarantee that siting requests would be acted upon quickly will ensure that grant funds can be spent quickly and assist carriers and tower construction companies in efforts to maximize activity during the rapidly approaching 2009 construction season," stated the CTIA president."

Full Story: CTIA pursues 'shot clock' again

Comments

Comments

FCC and Local Zoning Authority

While I agree that local jursidictions should be able to use reasonable means to create and sustain livable and aesthetically pleasing communities, the fact is they often hold hostage any and all applications for wireless facilities. This sad fact supports the notion that a maximum processing time does hold merit. While 75 days is probably too short a timeline for proper noticing, due process, and hearings, etc., it would be a step in the right direction to establish some sort of outside limitation so that NIMBYS and BANANAS do not hijack what should be a fairly reasonable and rational process.

Peter J. Blied
Planner at Large

I'd have to disagree with the CTIA's approach

There is strong legal basis to support the locality's ability to issue land use control, and a long legal history to establish "reasonable" schedules and permit streamlining. I can't think of another private industry that's been provided with federal pre-emption of local laws based on an arbitrary time limits for local permitting.

For a great summary of why this industry sought pre-emption is a bad idea with no legal basis, see the comments filed by local governments in opposition to the CTIA's efforts to get the FCC to do this dirty deed -- a great set of comments can be found here -

http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_doc...

- written by Jonathan Kramer, JD, for NATOAA. There were some errata, and they were filed here -

http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_doc...

I also have links and some commentary at my blog -- http://anvilpartners.us/blog/#BlgAnchr4010

RES

Robert E. Smith, AICP
Anvil Partners, LLC
www.anvilpartners.us
http://www.linkedin.com/in/robertesmith

Bad form but right play?

Robert,

I definitely agree with you that a federal pre-emption specific to a certain private industry is not the correct way to go, but I would also agree with the poster above that many localities clearly fail a reasonableness test when it comes to the permitting process and local land use control. I've been to rural China (I'm talking dirt roads and mud huts rural here), and never once did I not have crystal clear cell phone reception and full service. Yet I often can't get cell service at all around Memorial Stadium in Berkeley... or at my folks' house in eastern San Diego County. I've heard that sub-saharan Africa has better cell phone coverage than the US. Clearly something is wrong, no?

I wonder what the answer is then..? I'd favor loosening local land use controls (as they are abusive and inequitable in so many other ways), but assuming that doesn't work, what else is to be done? Just curious about your thoughts.

Shot clock would run into problems...

...at least in California. If a particular tower doesn't qualify for an exemption under CEQA (most likely due to archaeological/historical, aesthetic, or biologic issues), it would be nearly impossible to meet a 75-day deadline, particularly when appeals are factored in.

I agree that many jurisdictions hold up applications unnecessarily, but that's the messy nature of participatory government - you send out a public hearing notice, and gosh, some people actually show up and ask questions that can't be answered on the spot, which results in the planning commission requesting additional information, studies, or simulations, which then necessitates another meeting, and then the people who showed up at the first meeting show up again and still aren't happy and file an appeal of the commission's approval, and then... I think you get the idea.

California made some progress with SB 1627, which mandates ministerial approvals for collocations, but we still have a long way to go.

Never underestimate the ability of educated professionals in the citizenry to delay a project, particularly if they're retired and can devote a lot of time to fighting city hall.

There's hope -- but it takes work

There are a few rays of hope out there -- and the Stimulus Bill, may help. Provisions in the Senate Bill contained a reservation of funds to focus on rural areas, and open access for broadband is still in there at the moment.

Regarding zoning processes -- we could say the same thing about almost any land use -- from hotels to shopping malls to public facilities. There's a public process for the local land use control and although not perfect, it's one of the best systems you can find for vetting and shaping projects to fit the local controls ie the desires of the community.

The wireless industry has a mandate from the FCC and the telecom act to provide nationwide coverage as quickly as possible. This industry is time sensitive and built for speed -- time=money for them. But the Fed allowed localities to retain manner and placement of this infrastructure, knowing that there would be compteting objectives...the controversey is built into the telecom act on purpose -- and the Fed intended for that controversy to take place at the local level, presumably so that those folks directly affected by the proposed development would have the ability to regulate the impacts of that development. The ultimate resolution of that controversey, if it doesn't happen at the local government level, already has a mechanism for final determinations -- and that's through the court system. There are already precedents set through law related to reasonable timelines and rational nexus between impacts and exactions/mitigations. The problem is that the industry doesn't like them -- that could result in some markets not being served as well as other, more receptive markets (after all, they are a private venture) -- and the answer there is that the market, if it wanted the services and wasn't getting them because of too much local regulation, would then cause the local codes to be amended so more services would flourish.

It's the same for every private land use out there, and the Fed decided that the provision of wireless communications across the US would be a private venture, to foster competition and lower prices. If we take exception here, and federally pre-empt local controls just so a private venture can do more business faster, what then do we say to the other private ventures out there that would want the same competitive edge?

The way I see it, the wireless communications industry enjoyed a brief intial hayday when at the outset of their initial deployment, few localities had zoning controls to regulate the land use. The initial wave of deployment was fast, and most localities didn't understand that this infrastructure was private, and susceptible to local zoning regulation. That changed as the planning and building officials became more aware...and zoning ordinances began to appear to manage the impacts. Now the pendulum is swinging in the direction of local regulation and the industry has attempted several different strategies to change the local regulatory landscape -- however, their attempts have not been as effective as they might have, and there's still much dialogue to occur before planners and local staff really understand this infrastructure and the industry.

As you alluded -- there are benefits to having this infrastructure and the services that it provides...and research is showing that this infrastructure is highly correlated with successful economic development. We also see how this infrastructure is empowering the development of better health care, education, public safety and even public services. The planning and management professionals at localities need to understand the far-raching impacts (both positive and negative) that this infrastructure brings, and they need to engage it in the same planning fashion that they engage other infrastructures. However, this is a relatively new idea, and it will be some time before the concept is recognized and accepted.

That being said, the industry was handed a heavy blow last year when Sprint v. San Diego County fell in the locality's favor. This legal decision will have wide ranging results in the federal circuits, empowering localities to create land use controls that can approach the draconian. The trick is to find a balance -- you need the infrastructure and the services - and - you need to manage the impacts the infrastructure creates...the best tool to strike this balance is planning and zoning controls, and that's why Anvil Partners was created (www.anvilpartners.us).

We help localities get a handle on these issues, create codes and processes to facilitate appropriate control, and then monitor compliance to ensure that the controls are followed.

Robert E. Smith, AICP
Anvil Partners, LLC
www.anvilpartners.us
http://www.linkedin.com/in/robertesmith

Value of Cell Phones

The claim that cell phones will improve health and education is not credible.

Cell phones are often a convenience, and they can be invaluable in emergencies.

They are also often a nuisance, and the distraction increases auto accidents.

Haven't you even been bothered by a cell phone yapper talking in an extremely loud voice next to you, or by a cell phone yapper who almost walks right into you because he doesn't notice what is going on right next to them? I find that they usually sit right behind me on public transit and yap right into my ear while I am trying to read the New York Times.

It would be good if we could keep the conveniences and control the nuisances: eg, cell-phone-free zones in public places, banning cell phones while driving.

As is, my own experience is that the convenience value and nuisance value are about equal. Like many technologies, they create as many problems as benefits.

Charles Siegel

Wireless Communications helps health care and education

The health industry is using wireless infrastructure to allow people to recover from procedures at home -- using wireless telemetry that keeps the doctor up to date on the patient's status 24/7 via wireless data and a handheld unit for the Dr... This technology is also being used in hospitals to keep medical staff better up-to-date on patients under their care at the hospital.

Educational systems are using wireless infrastructure to promote distance learning and training -- and can offer learning applications/experiences to individuals using wireless technology off-site and also in their homes.

It is very true that many users of this technology have not figured out how to use it in public without disrupting others, and some are downright inconsiderate. Just as when new issues are socially encountered, we as a culture have to figure out how to act and show decent manners...and some are better at that than others.

When you look at the benefits in terms of economic development, the above mentioned, as well as public safety and efficiencies experienced (ie -- trips saved due to enhanced communications) I think the usefulness of the infrastructure far outweighs the vagrancies we experience from unthoughtful users.

RES

Robert E. Smith, AICP
Anvil Partners, LLC
www.anvilpartners.us
http://www.linkedin.com/in/robertesmith

Wireless And Education

I can see that it is handy for a doctor, who has to keep track of patients 24/7; that is one case where it is convenient to carry a wireless device with you. But for home education, a computer plugged into a DSL connection is just a effective as a wireless computer.

And consider this: Thirty years ago, reading was the primary passtime of people riding on public transportation. Now fewer of those people are reading and more are yapping on their cellphones or listening to their ipods. Is that good for education?

You focus narrowly on the efficiencies to systems that provide health care and education, and you ignore the larger social changes involved.

I am sure that there were people in the 1950s who said that television was good for education, because there were some educational programs.

Charles Siegel

It's more than that I think

I can't imagine that (1) better access to more information, (2) the ability to perform some tasks without having to physically travel somewhere and (3) the ability to communicate with others, anytime, anyplace would be a negative thing from a social or experiential perspective. There's certainly also a green benefit in the trips this technology can eliminate.

I'd also say that television has been both a positive and negative vector for educaiton. Certainly the educational films and materials produced on TV and used by the media and the educational institutions are a benefit, but the abuse of TV watching in the home has not been a positive -- and there you would look to the parents to, well, parent their children...

Cell phones in particular, and wireless communications infrastructure in general have much more power, in that they offer a portal to a much larger pool of information, AND that portal is user directed. Further, those devices and infrastructure also support two way communication, again user directed.

From an educational standpoint, institutional distance learning and training also benefit from this infrastructure -- colleges, and in particular community colleges and online universities are reaching far more students, at tuition rates that people can actually afford, by using this infrastructure.

Many mass transit systems, airports, and train stations are now offering wifi connections to commuters (BART just upgraded their lines), so they are able to access whatever they want, whenever they want.

Police, fire, first responders, ambulance and security personnel are using it for communications backup. NY police just installed a system where citizens can dial 911 from a cell phone and send a picture to the emergency switchboad -- and that picture can be relayed to responding personnel so they know more about the situation they are entering.

This infrastructure is being used for emergency and amber alerts...reaching more people faster.

Businesses are taking advantage of people being able to work while waiting for a flight at the airport, and in some cases they are cutting down on travel by using teleconferencing with video. Many of these services also have a wireless component in the data chain.

Individuals are now using mobile divices to handle their music, watch streaming video, surf the internet, find things (on a map) and even do their banking on line. Beta tests using the cell phone as a payment device have also been launched in the US -- after successful trials in the east.

The sports industry is using wireless infrastructure to offer additional information to viewers as well as to augment coaching and in-field play.

Local governments are using it to transmit meter readings, coordinate workforces, make on-the-fly adjustments to projects from the field (saving time ad $$$) and to compliment/supplement emergency response communications.

When you get down to it, the infrastructure provides immediate access to information, AND the ability to communicate any time, any where. It's hard to see a down side to that since folks can switch it off whenever they want.

All introductions of pivotal developments have societal ripples. Thank goodness people are able to adapt and overcome. I think history will reveal that the ability for humans to communicate and access information is one of the most important things across time. It got us out of the dark ages with a thing called 'the book'. It was far more limited in function and impact, and look what it achieved.

Robert E. Smith, AICP
Anvil Partners, LLC
www.anvilpartners.us
http://www.linkedin.com/in/robertesmith

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