LOCAL ZONING CHALLENGES REMAIN FOR WIRELESS TOWER BUILD-OUTS

In what he called “mission creep,” SprintSites Senior Attorney Roger Sherman said local zoning issues were starting to meld increasingly with policy areas of state historic preservation officers (SHPOs). “There’s increasing overlap between the 2 processes, even though they do different things,” he said. Several panelists cited overlap between local zoning regulations and federal Sec. 106 historic preservation siting requirements under National Historic Preservation Act. FCC Wireless Bureau recently hired Amos Loveday, who had been SHPO in Ohio, as cultural resource specialist to address siting issues. Asked what that means when carrier needs to cope with situation in which it has approval from local board but not SHPO, Jeff Steinberg, FCC deputy bureau chief of Commercial Wireless Div., said operators could approach agency “more or less informally on a case-by-case basis… One of the key things we brought in Amos to do is to allow us to deal more effectively with these kinds of situations.”

Consolidation in tower industry and increasing colocation have created confusion in policy areas such as who’s responsible for registration and other requirements, several attendees said. Colocation agreement crafted by FCC, Advisory Council on Historic Preservation, SHPOs and others means certain older structures don’t have to go through as extensive environmental and historic review as newer ones if colocation doesn’t create significant change, said Washington attorney John Clark. “There’s no clear legal answer,” he said in response to audience question: “The responsibilities under FCC practice and rules go to both tower owners and carriers and it can cause a bit of a traffic jam sometimes.” In another area where Sec. 106 and other siting restrictions intersect, Sherman said SHPOs had 30 days to respond to application but enforcement of that timeline hadn’t been clear. That issue is expected to be handled under pending program agreement, Steinberg said. That agreement, expected to be finalized by year-end for comment, would streamline siting of new and replacement antennas under Sec. 106 requirements. But even with new cultural resources officer, he said agency still had limited resources in making decisions on potentially large numbers of matters: “We have to make our reasonable judgments but we have to do it in conjunction with everybody.” Along with PCIA, conference was sponsored by law firm of Cole, Raywid & Braverman.

Different outcomes in federal and state courts, as well as at local regulatory levels, point to continued “vagaries of process” on siting, Washington attorney Edward Donohue said. “The rules of the game don’t necessarily apply evenly, particularly here in the 4th Circuit,” he said. In case of tower erected at Mt. Vernon, agreement was reached between state and federal regulators to construct monopole that resembled tree, he said. In more mundane setting of Dulles Toll Road in Fairfax County, Va., litigation sent proposed tower back to zoning board, which mandated its height be cut 25 ft., he said. Part of uncertainty on such outcomes involves interpretation of Telecom Act’s limitations on local authority, Donohue said. Act requires that local rules not “unreasonably discriminate” among providers of functionally equivalent services and not prohibit provision of wireless services. Courts have different interpretations on “unreasonable discrimination,” he said. Donohue cited 9th U.S. Appeals Court, San Francisco, decision that it wasn’t discriminatory for water tower to let Nextel locate antenna while rejecting request for colocation by another carrier, he said. “If those folks can survive discrimination claims on water towers and discrimination on rooftops, imagine how tough its going to be to prove discrimination, particularly if you're a tower provider,” he said. “I would suggest to you it’s going to be very, very difficult.”

Similar range of interpretations exists for what it means for locality to prohibit provision of wireless service, he said. “It depends on where you are,” he said. “The courts can’t seem to decide whether prohibition of service must effectively be a ban that means no towers in our town” or more limited restriction that doesn’t let carrier fill in gap in coverage, he said.

Another issue that emerged repeatedly was tension between communities wanting fewer taller towers versus shorter towers that must be greater in number to provide coverage. One drawback of shorter towers is that they often mean that few or no other carriers could colocate, experts said. “Height versus colocation is a big debate,” said Thomas Murray, pres. of consulting firm Community Wireless Structures. Loudon County, Va., has released wireless infrastructure planning report that recommended building 20 towers that are close to 200 ft. instead of 200 towers that are 80 feet to meet coverage needs, he said.

While attendees acknowledged new tower construction has slowed amid current telecom downturn, several panelists anticipated new capacity demand driven by factors such as wireless data. Kitchen said several issues were likely to drive need for more capacity: (1) NextWave will survive pending U.S. Supreme Court challenge by FCC, so spectrum will be freed whether NextWave decides to build out or ultimately sell its licenses. “That spectrum will prompt additional network buildout.” (2) Wireless local number portability mandates “will have a huge impact” on infrastructure plans because focus on buckets of min. will be less important than service quality and reliability.

While Sept. 11 attacks pointed to importance of wireless communications, several experts said that hadn’t necessarily made zoning easier. Donohue cited Fauquier County, Va., ordinance that restricted height of new commercial towers to 80 ft. He said county also had plans to upgrade 800 MHz public safety system in way that would require much taller structures. In that case, there may be opportunity for carriers to colocate with county, he said. AT&T Wireless Vp- Land Use Catherine Blue said while it was important to mention public safety aspects such as Enhanced 911 in zoning process, “sometimes it’s seen as self-serving.”

Loveday said that while Sec. 106 and local zoning requirements were separate, they often involved similar kinds of material for carrier to develop. Citing his experience in Ohio, he stressed need for communication among carriers, SHPO and local regulators. “Don’t assume that if there are no local [historic] sites in an area that Sec. 106 doesn’t apply,” he said. Local rules don’t necessarily recognize impact on same sites as state rules do. He also cautioned industry against assuming that SHPO necessarily would agree with what local zoning board wanted to do on siting application: “The SHPO should be engaged early in the process.”