Wireless Telecommunications Facilities Siting: The Federal Framework and the FCC’s Role

1. Wireless Telecommunications Facilities Siting:The Federal Framework and the FCC’s Role Jeffrey Steinberg Deputy Chief, Spectrum and Competition Policy Division Federal Communications Commission Washington, DC (202) 418-0896 Jeffrey.steinberg@fcc.gov * The statements and opinions expressed in this presentation are my own, and do not necessarily reflect the views of the FCC, any individual Commissioner, or the Wireless Telecommunications Bureau. Connecticut Siting Council Symposium

2. Division of Federal and State Authority • Exclusive FCC authority over use of spectrum and operation of facilities • Radiofrequency (RF) interference Freeman v. Burlington Broadcasters, 204 F.3d 311 (2d Cir. 2000) • Exposure to RF emissions • State or local authority over placement of physical facilities • Preserved and limited by Section 332(c)(7) of the Communications Act • Limited FCC role: Aircraft navigation safety and federal environmental review Connecticut Siting Council Symposium

3. Aircraft Navigation Safety • Builder then registers tower with FCC before construction • FCC enforces compliance with painting and lighting specifications • Applies to towers over 200 feet high or near airport runways • Tower builder must get painting and/or lighting specifications from FAA Connecticut Siting Council Symposium

4. Federal Environmental Review (NEPA) • Must submit Environmental Assessment for FCC review if in any of 9 categories • Located in wilderness area • Located in wildlife preserve • May affect endangered species/critical habitat • May affect historic properties • May affect Indian religious sites • Located in a flood plain • Significant change in surface features • High intensity white lights in residential area • RF exposures in excess of FCC guidelines Connecticut Siting Council Symposium

5. Overview of Section 332(c)(7) • State/local authority generally preserved • May not unreasonably discriminate among providers of functionally equivalent services • May not prohibit or effectively prohibit provision of service • Must act within a reasonable time • Denial must be in writing, based on substantial evidence in a written record • May not regulate directly or indirectly based on the environmental effect of RF emissions, to the extent facility complies with FCC regulations • Does not constrain relationship between State and local authority Connecticut Siting Council Symposium

6. Scope of Section 332(c)(7) • Applies to personal wireless services • Commercial mobile services • Unlicensed wireless services • Common carrier wireless exchange access services • Does not cover other types of services • Broadcast • Public safety systems • Status of wireless Internet access and IP-enabled services unclear Connecticut Siting Council Symposium

7. Nondiscrimination • May not unreasonably discriminate among functionally equivalent providers • “Reasonable” discrimination is permitted • For example, may apply different standards to similar structures in industrial or residential zone • Courts generally look for reasoned explanation of why different applications were treated differently • Sprint Spectrum v. Willoth, 176 F.3d 630 (2d Cir. 1999) – No unreasonable discrimination where proposals had different aesthetic impacts due to locations Connecticut Siting Council Symposium

8. Effective Prohibition of Service • Regulations may not have effect of prohibiting service in general or in specific case • Denial of single application does not necessarily prohibit service if there are reasonable alternatives • Courts divided on application; highly fact-specific • What if one provider can offer service and another can’t? • How large a dead spot is a “prohibition”? • When does additional expense become “prohibitive”? • Sprint Spectrum v. Willoth – No prohibition where carrier could provide in-vehicle coverage throughout area and in-building coverage in most locations Connecticut Siting Council Symposium

9. Reasonable Time New York SMSA L.P. v. Town of Riverhead, 2002 WL 2008911 (2d Cir. 2002) – Request for full environmental review one year after filing was not unreasonable delay where record showed steady progress during year • Decisions must be reached in a reasonable time • Generally OK to treat like other similar zoning requests • No quantitative standards; depends on the circumstances Connecticut Siting Council Symposium

10. Substantial Evidence Omnipoint v. City of White Plains, 430 F.3d 529 (2d Cir. 2005) – Neighbors’ specific objections to aesthetic impact of 150-foot tree tower were substantial evidence for denial • Familiar legal standard • Does not limit permissible grounds for decision, but reasoning must be supported in record • Highly fact-specific Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) – Generalized citizen concerns were not substantial evidence that collocations on water towers would have negative impact on aesthetics or property values Connecticut Siting Council Symposium

11. Radiofrequency Emissions • May not regulate siting based on effect of emissions if facility complies with FCC regulations • Rules limit cumulative exposure to emissions from all antennas • Large margin of safety beneath known health effects • Rules divide facilities into 3 categories • Many facilities are excluded from routine testing because they are highly unlikely to exceed guidelines based on their height and power • If facility is not excluded, operator must study and certify compliance • If facility exceeds guidelines, Environmental Assessment is required • Local Official’s Guide: http://wireless.fcc.gov/siting/FCC_LSGAC_RF_Guide Connecticut Siting Council Symposium

12. The FCC’s Role Under Section 332(c)(7) • Except where decision is based on effects of RF emissions, FCC has no jurisdiction to resolve disputes under Section 332(c)(7) • Cases must be brought in federal or state court • Claims of regulation based on effects of RF emissions may be brought before court or FCC • Other than RF emissions, FCC role is to educate public and encourage reasonable solutions Connecticut Siting Council Symposium

13. Siting on Government Property • Section 704(c) of the Telecommunications Act of 1996 • Federal agencies directed to make property available for wireless facilities on a fair, reasonable, and nondiscriminatory basis. General Services Administration has provided guidance. • FCC directed to provide support to States in making their property available • Under governing case law in Connecticut, Section 332(c)(7) does not limit local government in its capacity as landowner • Sprint Spectrum v. Mills, 283 F.3d 404 (2d Cir. 2002) – School district could enforce limitation specified in lease on RF emissions from antenna on school property Connecticut Siting Council Symposium

14. Resources • http://wireless.fcc.gov/siting/ • Fact sheets • Commission rulings • Other materials • General contact: towersiting@fcc.gov (202) 418-1310 • RF Safety information: rfsafety@fcc.gov (202) 418-2464 • My contact information: Jeffrey.steinberg@fcc.gov (202) 418-0896 Connecticut Siting Council Symposium