WASHINGTON-Local government representatives and the wireless industry appear to be close to announcing procedures for local governments and industry to resolve disputes about siting wireless facilities.
The Federal Communications Commission’s Local and State Government Advisory Committee hopes to announce a completed alternative dispute resolution at its July 24 meeting in Las Vegas. The Cellular Telecommunications Industry Association is reviewing a draft proposal.
LSGAC was created last year by then-FCC Chairman Reed Hundt to give local government officials a voice in FCC decisions impacting them. Local government complained it was not being heard by the FCC because it did not have high-priced lobbyists to advocate its views before the agency.
LSGAC has issued several recommendations on various telecommunications issues. Most of the recommendations suggest issues be handled at the local level.
The LSGAC/industry agreement will contain general guidelines on how LSGAC thinks local governments should use moratoriums and a voluntary informal dispute resolution procedure for carriers to use if they think localities are abusing the moratorium process. The purpose is to assist carriers and local governments to come to terms on where and how wireless facilities should be located in particular areas without going to court. The document is not expected to address what happens if a carrier believes that a locality’s specific zoning ordinance is too burdensome.
The local level
The LSGAC/industry informal dispute process comes at a time that many in the industry believe the only way to get an antenna sited is to go to court. The industry’s efforts in this regard have been mixed. For example, Bell Atlantic Mobile lost a case June 24 in North Carolina. Another case involving BAM and AT&T Wireless Services Inc. in Fairfax County, Va., has been postponed until September.
Judge Lacy H. Thornburg told BAM it must submit an application fully complying with a new antenna-siting ordinance in Haywood County, N.C. The application must then be rejected before the court will determine whether the ordinance violates the Telecommunications Act of 1996.
BAM had filed a lawsuit in January claiming a moratorium on wireless facilities put in place by Haywood County violated the telecom act because the moratorium was enacted 16 months after the law was passed. However, the judge ruled the moratorium did not violate the law.
Thornburg also said the timing of BAM’s lawsuit showed the company was not willing to comply with the new ordinance because it wanted its application considered under the pre-moratorium rules.
BAM has said it expects to win on appeal. The company has filed a notice of intent to appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
Many rural and scenic areas are not proactively establishing antenna siting rules because they are unaware of the potential problems of multiple wireless facilities until they start getting a multitude of applications.
The state level
When litigation seems unattractive, carriers are going to state legislatures.
A decision in the Fairfax County case has been postponed until September. In this case, BAM and AT&T Wireless made an agreement with the Virginia Department of Transportation to site wireless facilities in Fairfax County on state property. For this reason, the carriers did not believe they had to comply with the county’s zoning rules regarding these facilities. VDOT approved the facilities as part of its plan to create an intelligent highway system.
Fairfax County does not agree the sites are necessary to the state’s efforts to create an intelligent highway system.
In New York, for example, efforts to introduce legislation to override local rules were squashed when those opposed to the legislation mounted a campaign against it.
The Wireless Facility Siting Act would have allowed antennas outside a 500-foot radius of all scenic and historic areas. Jeff Anezevino of Scenic Hudson said that scenic and historic areas should be protected. “We want protection within site of all parks, scenic roads and historic sites. If you can see it, it should be camouflaged,” Anezevino said.
When the New York State Legislature adjourned for the year, the bill died, but the majority leader has vowed to introduce it next session, Anezevino said.
The federal level
In addition to working with LSGAC on the informal dispute resolution process, the wireless industry also has been working to get antenna siting-friendly rules established at the federal level.
Last week, the General Services Administration announced it has signed leases with carriers to place antennas on the top of 67 government-owned buildings, which could generate more than $1 million per year in receipts for the federal treasury. The program to site antennas was launched in 1989 to give carriers access to more than 1,900 government-owned facilities nationwide. These facilities are located in nearly every metropolitan area and most have 24-hour security.
CTIA President Tom Wheeler said GSA has been one of the leaders in antenna sitings on federal lands. Other federal agencies, such as the National Park Service, have not been as helpful, Wheeler said. “The park service is still back in the [pre-historic] era. The park service has not evolved very far,” he said.
The guidelines and policy statement on antenna sitings on NPS lands are expected sometime in July.
CTIA has been working with NPS since 1996, and before that with the Department of the Interior to establish rules for efficient and least-intrusive methods for siting antennas on federal lands. NPS issued a revised guidelines proposal in March. The proposed guidelines call for carriers to submit propagation maps showing their coverage area within a 15-mile radius and proposed buildout plans for that area within the next five years. CTIA claims NPS has not given a rationale for why it needs this information.
