Wireless Industry
Seeks to Limit Local Zoning Authority
by Gail A. Karish About Legal Notes
The wireless industry in the United States provides mobile telephone and data services (Internet and/or broadband access) and leads the world in network investment. Yet industry lobbyists continue to advocate before Congress, state legislators and the Federal Communications Commission (FCC) that a barrier to upgrading and expanding the industry’s wireless infrastructure exists and must be cleared away — and that barrier is local zoning requirements. As Western City goes to press, the FCC is considering rules to implement federal legislation designed to limit local authority over the siting of wireless facilities, such as placing new antennas and equipment on existing sites and towers or otherwise modifying or expanding existing wireless facilities. If the FCC adopts the proposed version of these rules, generally referred to as the “proposed rules,” the wireless industry will gain more authority to demand or influence local changes to the visual character of communities throughout
California and the nation. The proposed rules may also allow for: • Potentially unsafe installations of the new antennas and equipment on existing sites and towers; and
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
• Other modifications or expansions to existing wireless facilities. This article provides background on the sources of applicable law and current wireless issues at the federal, state and local government levels. It also explains why whenever changes are proposed it is important for local officials to express their views about how to improve the rules to preserve and protect local authority and discretion over issues of public safety and aesthetics related to wireless facility siting and maintenance in California cities.
Background Cities must comply with various federal laws, FCC regulations and orders, California statutes and their own local ordinances as they consider the private
installation and maintenance of wireless antennas and equipment on existing sites and towers. In 2012 Congress adopted the Middle Class Tax Relief and Job Creation Act, a statute best known for extending tax cuts and unemployment benefits. Buried in the law is Section 6409(a), which requires local government approval of certain wireless facilities installations even if local zoning laws or policies would otherwise preclude or limit their particular placement or location. Section 6409(a) is the first federal law passed in nearly two decades that directly affects a city’s zoning authority over wireless facilities. Some would argue that Section 6409(a) was added to the tax relief and job creation continued
Gail A. Karish is an attorney with the law firm of Best Best & Krieger LLP. She can be reached at Gail.Karish@bbklaw.com.
www.westerncity.com
Western City, April 2014
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