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December 5, 2013

RE: FCC Cell Tower Rule Could Threaten Local Land Use and Construction Controls

Dear Mayor:

The Federal Communications Commission (FCC) has commenced a Notice of Proposed Rulemaking (NPRM) which could result in new regulations that expedite regulatory reviews by limiting the kinds of issues local governments can consider, and in some cases preempt any local government review of siting applications for collocation of wireless transmission devices. This proposal needs to be clarified, and whatever rules the FCC comes up with need to be narrowly tailored to avoid the preemption of local land use authority. Otherwise, rules adopted by FCC could lead to litigation by either local governments or the wireless industry, leading to their interpretation by the courts.

You can access the Rule Proposal, as it appears in today’s Federal Register, at http://www.gpo.gov/fdsys/pkg/FR-2013-12-05/html/2013-28349.htm 
An excellent article on this issue appears on page 38 of the December, 2013, edition of our magazine, New Jersey Municipalities. We thank Ken Fellman, Esq., Legal Advisor to the Jersey Access Group and a member of the FCC intergovernmental Advisory Committee for sharing his expertise with our subscribers.

With the publication of the proposal in the Federal Register, a 60 day period for submission of comments has been opened. Comments from any interested parties must be sent to the FCC by February 3. Interested parties will then have an opportunity to file reply comments by March 5.

Please bring this matter to the attention of your Land Use professionals, your Construction Code officials and your professional staff. We urge you to consider sending comments on this rule proposal to the FCC.

These rules could allow the wireless industry to build on to existing towers, with little or no regard to local planning, zoning or building codes. It could also require unconditional local approval of industry plans to append wireless facilities to utility poles, light poles and road signs.  It has the potential to go as far as considering any structure capable of holding a wireless antenna (like a water tank, office building or even a single family home) to be a “wireless tower” and would apply the new FCC rules to all of these structures.

On Tuesday, the National League of Cities (NLC), the National Association of Counties (NACo), and the National Association of Telecommunications Officers and Advisors (NATOA) conducted a webinar on the FCC proposal. You can access the archived webinar at https://www2.gotomeeting.com/register/492450170.

Key concerns relate to:

  • The definition of “existing wireless tower or base station;”
  • The definition of “substantial change to physical dimensions;”
  • The ability of municipalities to impose conditions (based on local plans and codes) to approval of a planned expansion;
  • Whether existing facilities that are legal non-conforming uses can be expanded without regard to requirements of local land use laws;
  • Whether an application for expansion should be “deemed granted” if the municipality does not act within a specific period of time;
  • Whether the FCC should adopt rules that exempt these applications from compliance with state and local environmental and historic preservation laws;
  • The treatment of proposals to expand facilities on municipal property; and
  • The Constitutionality, pursuant to the Tenth Amendment, of the requirement that, under certain conditions, a municipality “shall approve” an application.

Local governments nationwide are encouraged to file comments in this proceeding.  Even if one cannot file detailed comments, a short letter in the record supporting local control and urging the Commission to respect local zoning authority would be helpful.  For more information on this matter, please contact the Jersey Access Group’s legal advisor, Ken Fellman, kfellman@kandf.com, or 303-320-6100.

Very truly yours,

Hon. Brian C. Wahler,                                                            William G. Dressel, Jr.
Mayor, Piscataway                                                                  Executive Director
Chair, NJLM Telecommunications
Study Committee and
3rd Vice President, NJLM

 

 

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