WASHINGTON-Some 116 siting moratoria have taken place or are pending in the United States since the Telecommunications Act of 1996 was enacted in February, impeding the entry of several varieties of wireless service providers into the marketplace, according to the Cellular Telecommunications Industry Association.
A petition for declaratory ruling filed by the association Dec. 16 asked the Federal Communications Commission to pre-empt state and local siting moratoria regulations that it believes violate congressional mandates. “Congress intended to prohibit state and local entry barriers, whether direct or indirect, which have the purpose or effect of barring commercial mobile radio services,” CTIA wrote, adding that the commission was charged by Congress to remove any such barriers it uncovers.
“These moratoria are too often being used as a subterfuge to avoid complying with federal law,” commented CTIA President Tom Wheeler in a written statement. “The FCC must fulfill its obligation to develop and maintain a uniform and consistent national policy that will eliminate such barriers.” Wheeler also called the moratoria “a decision not to make a decision,” and that blanket prohibitions on siting will hamper competition and reduce network capabilities.
Although CTIA admitted that Congress in the past has favored case-by-case zoning adjudication, the group maintained that a blanket pre-emption is needed this time around because most of the issues cited in the current moratoria are similar. “There is every reason to believe that federal and state courts will look to the commission, as the expert federal agency, to construe the Communications Act provisions as they relate to zoning matters,” CTIA wrote. “As the expert, FCC statements in this area are both entirely appropriate and urgently needed for the development of the commercial mobile radio service industry.”
CTIA attached thumbnail sketches of all state and local actions adopted to slow the development of wireless services; some of them include reasons behind such actions and others cite no reason at all. California, Minnesota, New York and Florida appear to have instituted the majority of the holds; and most moratoria are scheduled for 90 days, with several at 45 days and others at 6 months or longer.
Pico River, Calif., was cited as having one of the longest and most expensive of siting holds, prohibiting “the acceptance, processing or issuance of any permit for the siting of antennas that facilitate transmission or operation of enhanced specialized mobile radio services, cellular, personal communications services or similar wireless technology facility” for a year.
Violators of the moratorium are liable for $1,000 in penalties and fines and/or one year in jail.
While pointing out that the commission has a duty to provide technical information to state and local jurisdictions regarding such issues as siting and rights-of-way usage, CTIA also noted that the Broward County (Fla.) Coalition of 25 cities “have adopted moratoria of anywhere from 30 to 150 days while they write regulations for tower siting, use of public rights of way and franchise-fee provisions for cable, telephone and wireless companies. The regulations include land-use controls and attempt to maximize revenue streams to local governments … [this] suggests collusion to effect and fix rates, fees and prices and reduce private competition.”
Some jurisdictions have played the health-and-safety card when instituting siting moratoria, with CTIA stating that the commission and not the courts have jurisdiction over this.
