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Client Alert From the Municipal Law Group - September 2008

TELECOMMUNICATIONS LAW UPDATE FOR LOCAL GOVERNMENTS

This Update includes information on an urgent and time-sensitive Federal Communications Commission (FCC) proceeding with the potential to seriously undermine local zoning authority over cell towers; an important new decision from the Ninth Circuit Court of Appeals; and pending Ohio cell tower legislation.

Wireless Phone Industry Threatens Local Authority to Regulate Cell Towers

On the heels of cable/video industry’s successful assault on municipal franchise authority last year in the form of S.B. 117, the wireless telephone industry is now attacking local regulatory authority. Like the cable industry and AT&T last year, the attack is supposedly aimed at "promoting competition."  Specifically, a petition has been filed with the FCC seeking to significantly curtail the zoning authority of local governments to review applications for cell tower facilities. The petition was filed by the CTIA, a cellular telephone industry lobbying group formerly known as the "Cellular Telephone Industries Association" but now called "The Wireless Association."

CTIA Petition Specifics

In its petition, CTIA argues that existing law is ambiguous and has been interpreted by courts to permit local zoning authorities to impose unduly burdensome requirements on wireless tower facilities through zoning regulations. The law at issue is 47 USC  §332(c)(7), which addresses state and local review of wireless facility siting applications. This provision was enacted by the Telecommunications Act of 1996. CTIA asks the FCC to preempt local ordinances and state laws that it claims are overly burdensome.

CTIA's petition asks the FCC to:

1. clarify how much time a state or local zoning authority has before it is deemed to have failed to act on a wireless facility siting application (CTIA proposes a “shot clock” of 45 days for collocation requests and 75 days for any other wireless tower zoning applications);
   
   
2. implement rules to deem that an application is granted if the zoning authority fails to act within the proposed shot clock period, or to create a presumption that entitles the applicant to a court-ordered injunction granting the application unless the zoning authority justifies the delay;
   
   
3. clarify that the provision prohibits local governments from considering the presence of wireless service by other carriers in evaluating an additional carrier’s application for a tower site; and
   
   
4. preempt any local regulation that effectively requires a variance for every tower application.

CTIA’s petition is a blatant attempt to capitalize on the telephone industry’s recent success in convincing the FCC to limit local authority and create new cable franchise regulations favorable to the industry.[1] This filing is another aggressive, industry-backed attempt to upset the balance between local authority and the federal goals of increasing competition established by the Telecommunications Act of 1996. Section 332(c)(7) specifically affirmed the traditional roles of local zoning in cell tower siting decisions and includes procedural requirements for fair and prompt decision-making by local governments. Because courts have repeatedly recognized that section 332(c)(7) permits reasonable local discretion in zoning if procedures are followed, the industry has now turned to the FCC to effectively preempt local discretion.

FCC Seeks Comments on the CTIA Petition

The FCC issued a public notice seeking comments on CTIA’s petition. Though the initial September 15th comment deadline has passed, the FCC has now agreed to extend the deadline to file comments until September 29, 2008. The deadline for filing reply comments is now October 14, 2008.

Filing Comments Is Easy

NATOA (the National Association of Telecommunications Officers and Advisors) has created a template for filing comments which can be accessed at NATOA’s website or by clicking here. Please note that as of the date of this alert, the instructions on NATOA’s template do not include the extension of time to file comments until September 29, 2008. Instructions and a link to filing comments electronically with the FCC can be found at the FCC Electronic Comment Filing System or by clicking here.

Ninth Circuit Reverses 7-Year Old Decision That Improperly Limited Local Zoning Authority Under § 253 of the Telecommunications Act

In a stunning reversal favorable to municipal authority to regulate telecommunications facilities, the U.S. Court of Appeals for the Ninth Circuit has reversed itself and admitted that its interpretation of the preemption of local authority to regulate telecommunications facilities under § 253 of the Telecommunication Act of 1996 was overly expansive and based on an inaccurate quotation of the statute. In Sprint Telephony PCS v. County of San Diego, 2008 U.S. App. LEXIS 19316 (9th Cir. September 11, 2008), the Ninth Circuit voted unanimously to overrule a standard it established seven years ago in City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001) that prohibited local governments from adopting any regulations that “may have the effect of prohibiting” telecommunications services.

The Telecommunications Act of 1996 included two provisions directly related to municipal authority to regulate telecommunications facilities. Section 253 is a general preemption of state and local regulations that “may prohibit or have the effect of prohibiting” telecommunications service, while § 332(c)(7) relates specifically to wireless facilities and services, providing that local regulations “shall not prohibit or have the effect of prohibiting” wireless services. Although the relevant provisions have “nearly identical text”, Id. at *10, in Auburn the Ninth Circuit interpreted § 253 as preempting any local regulation that may have the effect of prohibiting service instead of regulations that actually prohibit or have the effect of prohibiting service - the standard it uses to evaluate § 332(c)(7) claims.

Because Auburn was one of the first appellate cases to interpret § 253, it has had far-reaching consequences, as binding and persuasive authority, over cases in which the telecommunications industry challenged local authority to regulate telecommunications facilities. Id. at *10, *12. Following the Ninth Circuit’s lead, federal courts in the Ninth, First and Tenth Circuits “have invalidated local regulations in tens of cases across this nation’s towns and cities."  Id. Recognizing its flawed analysis in Auburn, the Ninth Circuit reversed its earlier ruling and adopted the Eighth Circuit’s holding that in order to preempt a local regulation under § 253 a plaintiff must show actual or effective prohibition, rather than the mere possibility of prohibition. Id. at **14-15, quoting Level 3 Communications v. St. Louis, 477 F.3d 528, 532-33 (8th Cir. 2007).

At issue in the Sprint case was the wireless service provider’s attempt to use § 253 to invalidate San Diego County’s ordinance regulating cell tower placement because the Auburn standard for preempting local regulations under § 253 was far more expansive - and the service provider’s challenge more likely to succeed - than the Ninth Circuit’s standard for succeeding under a § 332(c)(7) challenge. By reversing its decision in Auburn, the Ninth Circuit has effectively made the standard that a wireless carrier must show to invalidate a local ordinance the same under § 253 and § 332(c)(7).

New Ohio Legislation Would Expand Township and County Cell Tower Zoning Authority

Although the CTIA petition discussed above represents a real danger to local zoning authority, two pending bills here in Ohio (H.B. 84 and H.B 174) would actually somewhat expand the limited authority of counties and townships to regulate telecommunications towers. Currently, cell towers in counties and townships are subject to zoning authority only in areas zoned for residential use. H.B. 84 would subject cell towers to zoning authority on land used for agricultural purposes as well as residential purposes. H.B. 174 would require carriers to make reasonable efforts to collocate their facilities on existing towers and would also increase the notice required to the county, the board of township trustees and affected property owners. Both bills have been in committee since their introduction in February and April 2007, respectively.

For more information on these issues, please contact:

[1] These FCC cable franchising regulations limiting local franchising authority are not an issue in Ohio because S.B. 117 (R.C. Chapter 4939) has effectively removed local cable regulatory authority altogether.

Walter & Haverfield LLP
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