Local Preemption "Bigger than Unfunded Mandates" in U.S.; Issue Hits New Jersey

Under heavy fire from local governments, New Jersey Governor Christine Todd Whitman has dropped plans to help cellular tower construction companies to bypass local permitting authorities in hostile communities, and conceded permitting jurisdiction to local governments that oppose towers in their boundaries. Meanwhile, local communities nationwide are putting up a fight against "preemption" as federal and state courts move to erode local authority over the telecommunications industry.

Until Early August, Governor Whitman had approved state contracts with cellular operators as a state revenue source which would have allowed them to evade the permitting authorities of hostile communities by building wireless telephone towers on state highways that run through their towns. According to Don Ferguson, Planner of Wayne Township, approximately ten town governments voted in separate resolutions to oppose the deal. "The newspapers picked up on it, and the Governor backed off," he said. "New Jersey is a local control state."

The debate over local control of cell site permitting has grown increasingly hot since an Iowa court ruled earlier this year that the 1996 Telecommunications Act forced the city of Des Moines to permit an unwanted cell tower unless it can prove that the tower would have an adverse impact on the community, a burden that previously fell on developers. Currently, 176 local governments nationally have moratorium ordinances in place on telecommunications tower permits. "We're finding that local governments being preempted is a bigger issue now than unfunded mandates," said Laurie Saroff, Legislative Counsel for the National League of Cities, who warned that the preemptive measures contained in the 1996 Telecommunications Act may resurface in the electric industry deregulation debate.

At the local level, preemption means that federally licenced corporations have the prerogative to build towers against the wishes of local communities. "These companies are putting heavy pressure on local governments to get their towers permitted before federal licensing deadlines pass, but many communities do not want the towers," said Ferguson, who said the towns refuse permits on aesthetic grounds because the Telecommunications Act prohibits local governments from refusing permits on the basis on health concerns about transmitter radiation. According to real estate lawyer Michael Grossman, state and federal courts increasingly interpret the 1996 law to erode local authority, favoring developers over local governments.

Recently, a federal court in Georgia said that Gwinnett County could not lawfully "frustrate the Telecommunications Act's intent to provide [resolution]...on an expedited basis," and ordered the county to issue a permit to BellSouth.

A U.S. District Court ruled in July that Jefferson County, Alabama's three back-to-back moratoria against Sprint Spectrum LP and Dial Call Inc. violated Section 704 of the Telecommunications Act, which prohibits communities from banning cell cites "directly or indirectly."

As federal and state governments erode local community authority over permitting, local governments nationwide are employing guerilla tactics to reassert local control. The Cellular Telecommunications Industry Association (CTIA) reports that many local governments ban tower sites from residential areas but allow them on public property from which towns can collect needed lease fees (the Chicago Housing Authority and Howard County, Maryland recently contracted with a property management company as a cellular lease agent for publicly owned sites). Local governments put pressure on companies to "co-locate" transceivers on the same pole by requiring minimim distances between poles, "fall zones" around poles and documentation proving that competitors have refused to co-locate. Cincinatti has required that carriers annually meet with the city to publicly explain their system build-out plans, against which developers have threatened to sue as a "violation of anti-trust laws." In Des Moines, the local government has appealed its case to the Iowa Supreme Court following local protests and city council hearings. The Company, U.S. Cellular, vowed to do whatever it takes to make sure the city obeys the judge's order. END

Copyright 1997 by the American Local Power News