WASHINGTON-In late spring, as federal regulators, wireless carriers and state and local officials neared the end of nearly one year of negotiations-culminating earlier this month with a highly publicized antenna-siting agreement that included the withdrawal of a controversial industry pre-emption petition-President Clinton quietly signed an executive order that could have expanded federal powers at the expense of states rights and possibly made a mockery of the new siting accord.
Had the executive order remained in effect, Clinton, with a stroke of the pen, would have given a huge victory to a wireless industry that has desperately tried, but failed, to get Congress and the Federal Communications Commission to pre-empt state and local regulation of antenna siting over the past few years.
Clinton’s move provoked an instant backlash in Congress, where Rep. Tom Davis (R-Va.) and a bipartisan group of lawmakers-most ex-local and state government officials-introduced legislation to protect cities and communities against unwanted interference from the federal government. The future of the bill is uncertain.
Indeed, the executive order fiasco has appeared to energize cities and states on a related front.
The National League of Cities is urging members to oppose the E911-federal land antenna-siting bill that sailed through the House Commerce Committee Aug. 5, the same day Kennard, Commissioners Susan Ness and Gloria Tristani, wireless industry association leaders and Ken Fellman, chairman of the FCC’s Local State Government Advisory Committee on antenna siting, triumphantly hailed the new antenna-siting agreement.
“It is essential to let your members know that they should not support this legislation [E911-siting] unless the concerns of local governments and their residents about potential intrusion on local authorities are appropriately addressed,” said National League of Cities President Brian J. O’Neill in the organizations’s weekly newspaper.
The NLC is said to have sent a letter to the House Commerce Committee shortly before the E911-siting bill’s Aug. 5 markup, outlining its concerns. But legislators apparently declined to act on the letter at that late hour.
David Aylward, a lobbyist whose firm represents the Cellular Telecommunications Industry Association and health professionals on the E911-siting bill, said local and state officials were informed early on about the bill and did not object.
The federalism order (13083), which Clinton signed May 14 in Birmingham, England, and withdrew Aug. 5 under heavy pressure from cities and states, would have repealed a 1987 executive order signed by President Reagan and 1993 executive order signed previously by Clinton that was specifically intended to shield municipalities from federal pre-emption and unfunded mandates.
How, then, did it come to pass that the White House nearly sabotaged a pre-emption-as-a-last-resort policy that FCC Chairman Bill Kennard first voiced at his Senate confirmation hearing last year and has enforced unwaveringly during his first year in office? What is a simple disconnect that is inevitable from time to time in a sprawling federal bureaucracy? Or is there more to it?
FCC officials, wireless lobbyists and even LSAC head Fellman reacted with surprise upon learning that Clinton signed the now-defunct federalism order at the same time talks were winding down on a cooperative arrangement between wireless operators and municipalities that would help avoid prolonged antenna-siting moratoria that industry says are hindering the buildout of new personal communications services and the expansion of cellular telephone networks around the country.
Meribeth McCarrick, a spokeswoman for the FCC Wireless Telecommunications Bureau, said Rosalind Allen, FCC liaison to the LSAC, was unaware the administration’s expanded federalism order and antenna-siting negotiations were on parallel tracks.
Top advisers to FCC Chairman Kennard said the agency was in the dark about Clinton’s expanded federalism order, too, but downplayed any potential impact it might have had on antenna siting had it not been derailed earlier this month by state and local leaders.
John Nakahata, Kennard’s chief of staff, said it would be a big leap to make a strong connection between the federal-state jurisdiction policy at the core of Clinton’s executive order and antenna-siting disputes.
State and local officials apparently felt otherwise, however. Once on their radar screen, they mounted an aggressive lobbying effort to overturn it. And succeeded, prompting an embarrassing retreat by the White House.
“Unquestionably, this was a step to reduce the authority and power of state and city governments,” said Frank Safroth, a policy analyst for the NLC. Safroth said it is unclear who is responsible for the Clinton administration’s short-lived move to veer so far off course from the White House’s previous federal-state policy.
Likewise, Philadelphia Mayor Edward Rendell told the Associated Press, “We’ve had a great working relationship with the administration, so this is a complete aberration. But the new balance of power in the order was totally unacceptable. The way this whole thing was handled is a mystery to us.”
Specifically, Rendell told AP, Clinton’s executive order might have created friction between federal and state officials on the siting of cellular towers and power lines and upset the federal-state balance on environmental regulation enforcement.
Barry Toiv, a White House spokesman, told the wire service Clinton takes state and local issues seriously. He said the now-rescinded federalism executive order “just slipped through the cracks.”
An administration source said it is likely Clinton was trying to bring the now-torpedoed federalism executive order in compliance with Supreme Court rulings and congressional unfunded-mandate legislation.
Ironically, the source said, state and local officials were not briefed before Clinton signed the executive order because the White House assumed they would support it.
