Local Governments Concerned About Federal Mandates for Faster Siting of Wireless Facilities
Local government groups, as expected, are protesting proposed rule changes from the FCC designed to cut red tape on the deployment of distributed antenna systems and small cells (CD Jan 24 p3). The FCC approved an NPRM in September (CD Sept 27 p10) on speeding wireless siting, and comments were due Monday. The FCC asked a battery of questions as it implements a requirement in the 2012 spectrum law, which says “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station."
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The New Jersey State League of Municipalities expressed “grave concern” about some of the changes proposed by the FCC (http://bit.ly/MSnIwa). “The League believes that, by depriving local authorities of any discretion in reviewing land use applications, the proposed rule will not only disturb the necessary balance between federal communication policy and local oversight, but also result in State and local officials being commandeered to enforce a federal zoning program, which would be impermissible under the system of ‘dual sovereignty’ mandated by the Federal Constitution,” the league said. “Local officials, being a part of the local community and politically accountable to it, have the nuanced knowledge and local sensibilities necessary to regulate land. Moreover, local implementation preserves traditional federalism values.”
The Missouri Municipal League objected to an FCC proposal to define nationally when an addition to a wireless facility “substantially” changes its physical dimension and thus requires further local review. “The ’substantiality’ of change in the physical dimensions of a tower or base station can only be reasonably determined on a case-by-case basis and, minimally, with consideration of local laws and existing community standards,” the group said (http://bit.ly/1lxpLF3). “This is because the size and appearance of many wireless support structures are the result of careful balancing, taking into consideration the needs of wireless providers, the surrounding environment, and the desires of community residents and constituents regarding the appearance of their community."
"The FCC should allow local jurisdictions to continue [to take] the lead on zoning and land use matters,” said San Diego County, Calif. (http://bit.ly/1akPAmM). The county’s Planning & Development Services department offered a detailed analysis of potential problems of various proposals in the NPRM, such as streamlining the National Environmental Policy Act review process for DAS and small cells. DAS systems can have a significant environmental effect and should be evaluated on a case-by-case basis, the county said: “It is possible that multiple DAS facilities placed in the same location (i.e. single utility pole), could result in aesthetic and community character impacts. Cumulative impacts could result when multiple DAS facilities are placed in the same viewshed area, particularly if the existing utility poles are located in a scenic area or road.”