This is about the local zoning authority of a city, county, town, etc., over the placement of cell antennas. aka “close proximity microwave radiation antennas”, aka 4G and 5G.
City council members and attorneys can be the biggest problem (and hold the keys to a solution)
Telecommunications law is complicated. The biggest problem I have seen in California and other states is that the city council members and city attorney fail to understand the full extent of the city’s regulatory power (aka zoning authority) over cell antennas, don’t listen to the local “safe tech” residents group that is trying to educate them, are scared by threats of telecom lawsuits if they don’t knuckle under, and so they take the incorrect position that the only thing the city can really do is knuckle under, give telecom what they want, and screw all the residents.
It happens way too often. The city council and attorney become an even bigger problem that telecom.
This is 100% avoidable. This page will give you some of the tools to succeed in your city.
The author of this page is not an attorney and this is not legal advice. It’s advocacy advice. Do your own fact checking and don’t believe the telecom hype. Be encouraged that the facts are on our side, the People’s side, and if you look for them you will find them. The law is on our side too.
City of Portland v United States did not overturn or rewrite the TCA sections 253(a) or 332(c)
The U.S. Court of Appeals for the Ninth Circuit opinion in City of Portland v United States does not, in my opinion (and according to attorneys whom I respect, so continue reading) overturn the precedent in the Ninth Circuit. That precedent, from MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715, was that the city could require the applicant to prove there was a significant gap in coverage and they were proposing the least intrusive means of closing it.
If you read the City of Portland Decision, the Court did not directly address the effective prohibition issue, but kind of glossed past it. This page has an attorney opinion letter pertaining to the Second Circuit, and I would maintain the same position in the 9th Circuit.
City regulatory power over cell antennas
This next document is the table of contents from a 2018 presentation by a very experienced attorney who practices in this area of law (telecommunications). It is a public record and I share it for the sole purpose of helping people to oppose and defeat telecom. For a copy of the full presentation email me at the contact information shown on this site.
Also by that same attorney is an Analysis of FCC 18-133 and its Effect Upon the General Authority of State and Local Governments to Regulate the Placement of Wireless Facilities as was Explicitly Preserved to Them Under 47 U.S.C. sec. 332(c)(7)(A) from the Telecommunications Act of 1996. For a copy of that analysis contact me.
This page has an excellent video and information on the subject of local zoning authority.
See also the video of this presentation by an experienced telecommunications attorney.
City of Malibu, California
The City of Malibu, California recently (December, 2020 and April, 2021) adopted a couple of ordinances to regulate the placement of cell antennas in the public right of way. There is an excellent discussion of the cities’ regulatory power over cell antennas including advice to the Council by attorney Gail Karish from Best, Best and Krieger, who is advising the city, and attorney Scott McCollough, for whom I have a TON of respect. On the first video on this page turn the volume up. My comments here are informed by what I have learned from my research. Again, I am not an attorney.
What Malibu did in April was say that telecom would have to prove that the city’s denial was an effective prohibition of the provision of personal wireless service, quoting from the TCA. They did not require telecom to prove that there was a significant gap in coverage and they were proving the least intrusive means. The council and Ms. Karish glossed over and did not address what I said about creating an appeal process for telecom.
That page also contains the Malibu resolution and their urgency ordinance from December, 2020.
ITW v Haddad (a case you can use in your city)
A related case is (Indus. Tower & Wireless, LLC v. Haddad (D.Mass. 2015) 109 F. Supp. 3d 284, 296.)
ITW v Haddad illustrates the city’s regulatory power; it must create its own process. This is directly related to the above quotation You Decide or the Federal Court Will Do It For You.
A couple of key quotations from that case are:
B. Judicial Review Under the Federal Telecommunications Act
The TCA has been described as a “deliberate compromise between two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.” Town of Amherst, N.H. v. Omnipoint Commc’ns Enterprises, Inc., 173 F.3d 9, 13 (1st Cir. 1999). Accordingly, the TCA generally preserves all state and local authority over the placement and construction of wireless cell towers, subject to five key limitations. See 47 U.S.C. § 332(c)(7); Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 19 (1st Cir. 2002). Two of those limitations are applicable to this case.
- Substantial Evidence Standard
First, the TCA requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). This substantial evidence requirement preserves the decision-making authority of local zoning [28] boards, “while protecting wireless service providers from unsupported decisions that stymie the expansion of telecommunication technology.” Town of Kingston, N.H., 303 F.3d at 94. Requiring a denial to be supported by substantial evidence is “a procedural safeguard which is centrally directed at whether the local zoning authority’s decision is consistent with the applicable zoning requirements.” Id. (quoting Omnipoint Commc’ns MB Operations, LLC v. Town of Lincoln, 107 F.Supp.2d 108, 115 (D. Mass. 2000)).
When evaluating whether a local board’s decision is supported by substantial evidence, the court is confined to the administrative record before the board, Plainville Zoning Bd. of Appeals, 297 F.3d at 22, and it must review that written record as a whole. Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 49-50 (1st Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotations and citation omitted). Although this test is “fairly deferential” to the opinion of the local zoning board, and a reviewing court “is not free to substitute its own judgment for that of the local authority,” T-Mobile Northeast LLC v. City of Lowell, No. 11-11551-NMG, 2012 U.S. Dist. LEXIS 180210, 2012 WL 6681890, *7 (D. Mass. Nov. 27, 2012) (quoting Town of Lincoln, 107 F.Supp.2d at 115), courts have also warned that “substantial evidence review is not a rubber stamp.” Green Mountain Realty Corp., 688 F.3d at 50 (internal quotations and citation omitted). A local board “is not free to prescribe what inferences [29] from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Id. (internal quotations and citation omitted).