Publication Date

1997

Comments

The Center for Economic Development at the University of Massachusetts, in Amherst, is part of the Landscape Architecture and Regional Planning Department, and is funded by the Economic Development Administration of the U.S. Department of Commerce, and the University of Massachusetts.

Abstract

The Federal Communications Commission (FCC) mandates that personal wireless companies develop their systems so that adequate service is provided to the public. Section 704 of the Telecommunications Act of 1996 governs federal, state and local government oversight of siting of "personal wireless service" facilities (Wireless Telecommunications Bureau, 1996). The FCC published a Fact Sheet in April of 1996 which summarizes the key provisions of section 704. The summary is as follows:

Local zoning authority over the placement, construction., and modification of personal wireless service facilities is maintained by the Act. However, zoning may not:

1. discriminate between different personal wireless service providers (i.e. cellular, SMR., and PCS). Communities retain the flexibility to consider the visual, aesthetic, or safety considerations when approving competing applications (Conference Report, Section 704, 1996).

2. altogether ban the construction, modification or placement of these kinds of facilities in a particular area.

3. use health and environmental effects of radio frequency (RF) emissions as a reason for siting denial to the extent that such facilities comply with the FCC's regulations concerning such emissions (see health and safety concerns, section 2.1.2). In all cases of refusal, written documentation based on sound evidence must be provided.

As with other zoning applications, communities must act in a timely fashion to requests for siting of wireless facilities. "If a request for placement of a personal wireless facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances" (Conference Report, Section 704, 1996).

Complete moratoria on wireless facilities siting applications are not congruent with the intent of Section 704, which prohibits policies that "have the effect of banning personal wireless services or facilities ... ". The FCC and the industry prefer that decisions be made on a case-by-case basis, yet some communities have adopted a moratoria despite this (see Section 2.2.2).

Federal agencies owning land are mandated to make property, rights-of-way, and easements under their jurisdiction available for the siting of wireless facilities. A presumption is established that requests for tower and facility siting be summarily granted if not in conflict with the agency's mission or its current and future planned use of the property. Whereas federal agencies are mandated to make federally owned land available for the siting of wireless facilities, state agencies are only "encouraged" to do so. Both are exempt from local zoning regulations.

Pages

Section 8: Pages 1-129