WASHINGTON-Cellular Telecommunications Industry Association President Thomas Wheeler said last week that antenna siting disputes will be tied up in litigation for years if federal regulators fail to break the moratoria logjam undermining the congressional mandate for facilities-based wireless competition.
CTIA is one of several parties with petitions pending before the Federal Communications Commission-one dating back two years-seeking relief from antenna siting moratoria and excessive taxation at the state and local level.
“The problem is, the commission needs to act,” Wheeler told reporters at a briefing last Tuesday.
FCC Chairman Reed Hundt recently told Senate Commerce Committee Chairman John McCain (R-Ariz.) decisions are nearing on state-federal pre-emption petitions. However, one agency staffer described that timetable as overly ambitious.
McCain abruptly canceled a hearing on antenna siting after loud protests from consumer advocates. The issue now is said to be off McCain’s plate for the year.
Wheeler said that without federal direction, antenna siting policy will likely evolve as case law develops in litigation during the next few years. He called an FCC delay “benign neglect.”
Indeed, Sprint Spectrum L.P. recently filed a lawsuit in New York State Supreme Court in Albany after being required by Guilderland, N.Y., officials to submit a report on health and safety, environmental impact and property values.
Given legal costs and the patchwork of law that would ensue, Wheeler said federal policy with teeth is preferable.
“Whoever finally gets this into the courts is going to win it,” said Kathy Hawk, a communications consultant and head of Residents Against the Towers, or RATT.
Hawk helped the borough of Brookhaven, in Delaware County, adopt a June 2 resolution calling for Congress to fund long-term research on human exposure to low-level radiation from pocket phones and to repeal the RF standard siting restriction in the telecom act.
Hawk said she may press Pennsylvania lawmakers in Congress to investigate health concerns related to antenna siting.
Lawsuits have alleged that pocket phones cause cancer, but federal regulators have determined that existing RF bioeffects data does not justify recalling phones. Meanwhile, there are increasing calls for more RF bioeffects research. The 1996 telecom act bans local and state regulators from barring antenna siting for health and safety reasons if wireless carriers meet FCC radio-frequency radiation emission guidelines. Yet, that has not stopped the imposition of nearly 300 moratoria and related siting delays throughout the country.
The FCC is expected to rule on challenges to a new, stricter RF emission standard soon. At that time, the agency also will propose rules governing antenna siting disputes between wireless carriers and local zoning boards.
In Congress, House telecommunications subcommittee Chairman Billy Tauzin (R-La.) will offer legislation in mid-July to address antenna siting moratoria.
Getting pre-emption policy through the FCC and Congress could be a tricky proposition, though.
From a legal standpoint, it is unclear whether a federal policy that significantly curtails local and state rights regarding antenna siting could face constitutional scrutiny.
The wireless industry claims siting moratoria is at odds with 1993 legislation, which pre-empted state regulation of commercial wireless carriers, and, in so doing, created a national wireless policy. Hence, the industry considers moratoria barriers to entry.
However, Republicans, who wrestled control of Congress away from Democrats two years ago on a New Federalism platform aimed at devolving power back to the states, could find it hard telling states they have little or no say on where antennas are erected.
House Speaker Newt Gingrich (R-Ga.), whose daughter has worked for BellSouth Corp., suggested in the past that pre-emption is warranted to promote buildout of mobile telephone networks.
However, beyond the rhetoric, it is another question whether Gingrich would actually support pre-emption legislation.
