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Section 704 of TCA

The one section of the Telecommunications Act of 1996 that causes the most difficulty for local government and for residents is section 704. It is deliberately vague so that local governments will not really know what it means and they will create their own interpretation of it that restricts their regulatory power even more than section 704 does. As I said this is by design. The local governments should have some courage and sense and should not jump to the conclusion that it means something other than what it says. Usually they interpret it very broadly, something like, “The city cannot regulate health effects.” Nonsense. That’s not what it says.
Here it is isolated.
Section 47 U.S.C. 332(c)(7)(B)(iv) says, “No State or local government or  instrumentality thereof may regulate the  placement, construction, and modification of  personal wireless service facilities on the basis  of the environmental effects of radio frequency  emissions to the extent that such facilities  comply with the Commission’s regulations  concerning such emissions.”

Equally important for residents and city council members to understand is the section of the TCA that preserves local zoning authority. It is part of the larger quotation following on this page and here it is:

” (7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”

Here is 47 U.S.C. section 332 from the Government Publish Office website.

Here it is from the Cornell University Law School website.


Here are both of these key provisions in context. They are copied and pasted from Congress’ website. Pardon the wide margins.

https://www.congress.gov/bill/104th-congress/senate-bill/652/text

SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

    (a) National Wireless Telecommunications Siting Policy.–Section

332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following

new paragraph:

            “(7) Preservation of local zoning authority.–

                    “(A) General authority.–Except as provided in this

                paragraph, nothing in this Act shall limit or affect the

                authority of a State or local government or

                instrumentality thereof over decisions regarding the

                placement, construction, and modification of personal

                wireless service facilities.

                    “(B) Limitations.–

                          “(i) The regulation of the placement,

                      construction, and modification of personal

                      wireless service facilities by any State or local

                      government or instrumentality thereof–

                                    “(I) shall not unreasonably

                                discriminate among providers of

                                functionally equivalent services; and

                                    “(II) shall not prohibit or have

                                the effect of prohibiting the provision

                                of personal wireless services.

                          “(ii) A State or local government or

                      instrumentality thereof shall act on any request

                      for authorization to place, construct, or modify

                      personal wireless service facilities within a

                      reasonable period of time after the request is

                      duly filed with such government or

                      instrumentality, taking into account the nature

                      and scope of such request.

                          “(iii) <<NOTE: Records.>>  Any 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.

[[Page 110 STAT. 152]]

                          “(iv) No State or local government or

                      instrumentality thereof may regulate the

                      placement, construction, and modification of

                      personal wireless service facilities on the basis

                      of the environmental effects of radio frequency

                      emissions to the extent that such facilities

                      comply with the Commission’s regulations

                      concerning such emissions.

                          “(v) Any person adversely affected by any

                      final action or failure to act by a State or local

                      government or any instrumentality thereof that is

                      inconsistent with this subparagraph may, within 30

                      days after such action or failure to act, commence

                      an action in any court of competent

                      jurisdiction. <<NOTE: Courts.>>  The court shall

                      hear and decide such action on an expedited basis.

                      Any person adversely affected by an act or failure

                      to act by a State or local government or any

                      instrumentality thereof that is inconsistent with

                      clause (iv) may petition the Commission for

                      relief.

                    “(C) Definitions.–For purposes of this paragraph–

                          “(i) the term `personal wireless services’

                      means commercial mobile services, unlicensed

                      wireless services, and common carrier wireless

                      exchange access services;

                          “(ii) the term `personal wireless service

                      facilities’ means facilities for the provision of

                      personal wireless services; and

                          “(iii) the term `unlicensed wireless service’

                      means the offering of telecommunications services

                      using duly authorized devices which do not require

                      individual licenses, but does not mean the

                      provision of direct-to-home satellite services (as

                      defined in section 303(v)).”.