Cell Towers, Small Cells and DAS

Cell Tower Siting

Federal law limits local government authority over personal wireless service providers, equipment used to receive broadcast signals and amateur radio equipment.  Despite these limitations, the Communications Act of 1934, as amended, does allow most local governments to control the construction, modification and placement of personal wireless service facilities, although there are certain broad restrictions that must be followed.  For instance, local governments cannot:  (i) unreasonably discriminate among providers of functionally equivalent services; (ii) enact laws or regulations that prohibit or have the effect of prohibiting the provision of personal wireless services; or (iii) regulate service providers on the basis of the environmental effects of radio frequency emissions, to the extent that personal wireless service facilities are in compliance with FCC emission standards.  The law firm of Bradley Berkland Hagen & Herbst, LLC (the “Firm”) has helped many local governments successfully exercise their tower siting authority within the parameters of federal law.  As a result, our municipal clients have been able to protect public safety and community aesthetics, while promoting the rollout of new telecommunications technologies.

In drafting a tower siting scheme, there are three primary factors that must be considered.  First, a municipality must consider the federal limitations discussed above, and the numerous court decisions interpreting those limitations.  The Firm has carefully analyzed applicable case law, and is acutely aware of how far local authority extends.  Accordingly, we have been able to help our clients avoid common (but easily avoidable) legal pitfalls.

The second factor that should be considered is the scope of local zoning authority and the content of a municipality’s existing zoning code.  In many cases, a local government’s zoning regulations do not address personal wireless facilities, so new provisions will have to be drafted from scratch.  However, where tower siting provisions do exist, a local government (with the assistance of an engineer) should ensure that they do not:  (i) discriminate between functionally equivalent providers of service; or (ii) prohibit or have the effect of prohibiting the provision of personal wireless services.  In addition, a local government should determine whether existing provisions will promote public safety and aesthetic goals, given the nature and number of personal wireless towers that may be needed by personal wireless service providers.  Local government officials should also consider how areas are currently zoned.  If there are numerous industrial zones, a municipality may want to encourage personal wireless service companies to locate their facilities in those zones.  Conversely, if a municipality is primarily zoned residential, it might want to place limitations and restrictions on the number, size and appearance of tower facilities.  By way of example, a local government could require co-location (to the extent feasible) as a means of limiting the proliferation of personal wireless service towers and facilities.

The third factor that must be considered is a municipality’s priorities.  Depending on the location and nature of a community, the preservation of aesthetics and/or historic districts may be important.  Alternatively, a community may want to encourage personal wireless service providers to locate their facilities on public property and buildings, instead of private property.  The elimination and/or clean-up of graffiti on tower structures may also be an important issue.

By working cooperatively with the telecommunications industry and our clients, we have been able to apply the foregoing factors in a manner that promotes municipal land development objectives and the development and availability of personal wireless services.  We should stress that tower siting ordinances must be carefully drafted, based on state law, a community’s needs and the restrictions set forth in 47 U.S.C. § 332(c)(7).  Communities should not take a “cookie cutter” approach to developing zoning scheme, since doing so increases the likelihood of a lawsuit.

If you have any questions concerning tower siting, please feel free to call Mike Bradley at (651) 379-0900.

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