Wireless Technologies and the National Information Infrastructure.
Chapter 8 - Zoning Regulations and Antenna Siting:
The Case Against Federal Preemption

Opponents of preemption argue that state and local rights, including regulating the power output of facilities in their jurisdictions, must be preserved because they are the appropriate loci for protecting public health, safety, and welfare. (see footnote 32) They object to antennas on several grounds: antennas can be obtrusive and may have unacceptable visual impacts on neighborhoods, which lowers property values; there may be health hazards from electromagnetic radiation emitted from antennas close to residences and schools; and without local regulations tailored to local conditions, antennas may be poorly constructed or unsafe.

Local Control

Preemption opponents argue that there is a limitation to the FCC's power when matters pertain exclusively to local or intrastate matters. (see footnote 33) Under sec. 332 (c) (3) of the Communications Act:

. . . no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.

Opponents argue that this exception permits them to continue to regulate antenna placements under local zoning laws because zoning falls under "other terms and conditions," and is not related to "entry of or the rates charged by" CMRS providers. In their view, while it may be more costly or difficult to establish service quickly, CMRS providers can, nevertheless, establish service. The Cellular Telecommunications Industry Association's (CTIA) position that any regulation is an obstacle to entry is overly narrow, opponents argue. (see footnote 34) Opponents of preemption point to tests of federal preemption involving amateur radio antenna regulations, as decided in Guschke v. City of Oklahoma City. (see footnote 35) This case determined that despite general federal encouragement of amateur radio as socially important, that finding alone was not sufficient to warrant federal preemption of local regulations.

Furthermore, where the relevant market for service is local, as it is with many wireless services, communities argue that they have the right to decide what costs and benefits they are willing to sustain, as long as there are no substantial impacts on other areas. If local costs are raised by local restrictions, and these costs are not borne by other communities, then it could be argued that preemption is an unnecessary intrusion. (see footnote 36)

Communities feel that opening the door to federal preemption of local zoning and land-use restrictions may result in other intrusions:

"This attempt at preemption by the cellular phone industry with the cooperation of the FCC is a blatant attack on our communities that is more of a threat and at a lower level of morality than any neighborhood drug dealer... If this preemption is allowed it will open the door for the federal government to attack any and all zoning regulations in all of our communities whenever a wealthy and powerful industry group with an influential lobby sees those regulations as an obstacle to increased profit... At a time when there is so much talk in Washington, D.C. about taking back our neighborhoods there is a clear example here of us losing those very neighborhoods to big business." (see footnote 37)

Health, Safety and Aesthetic Concerns

In addition to arguments concerning the legality of preemption, opponents further argue that the safety of radio emissions has not been fully established, and that local zoning and other regulations are appropriate measures to take in order to protect public safety (see chapter 11 for more discussion of health issues). Aesthetic concerns undoubtedly lie at the core of many objections to antennas, but these are harder to argue for without running afoul of charges of inconsistency, beauty being in the eye of the beholder. (see footnote 38) As a practical matter, aesthetics is generally formally given as a reason for restricting antenna siting in cases where obvious historical or other design considerations are at stake in a community.

The Natural Resources Defense Council notes that section 332 (a) of the Communications Act (see footnote 39) directs the FCC to take action after considering whether such action will "promote the safety of life and property." It argues that local zoning regulations are designed to protect public health, and that preempting them could harm the public. Communities claim that this language provides them with legitimate grounds for regulating or prohibiting the placement of antennas within their boundaries. Until a consensus on the safety of broadcast antennas is established, they will continue to have the right to limit placements.

The industry counters that health concerns are used arbitrarily and capriciously by communities to delay or prevent antenna installations:

Despite overwhelming and uncontroverted evidence that the extremely low power emissions or radio frequencies from properly designed and constructed antenna sites fall well below every state and federal exposure limitation, (usually by factors of 500 to 3000 percent), the unfounded health and safety concerns of local citizens are most easily appeased by simply rejecting applications and letting the courts overturn the decision--at great expense and costly delay for the commercial mobile service provider.

Health and safety claims are also often a subterfuge for underlying and unreasonable "aesthetic" concerns. In most typical communities telephone poles, water towers, broadcast towers and microwave relay sites proliferate, yet zoning boards often find that mobile antennae poles and towers violate vague "aesthetic" standards included in local zoning codes. Were the same standards to be applied to other forms of communications these communities would have no telephone service, no radio service, no television service and no utilities. (see footnote 40) Regarding the aesthetics of satellite dishes, the FCC has held that local regulations do hold sway in some cases:

State and local zoning regulation or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations (a) have a reasonable and clearly defined health, safety, or aesthetic objective; and (b) do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive- only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment.

Regulation of satellite transmitting antennas is preempted in the same manner except that state and local health and safety regulation is not preempted. (see footnote 41)

These issues will likely continue to be contentious for the foreseeable future, given their pervasive scope, and because they pit national objectives for quick and inexpensive service provision against deeply held beliefs, traditions and laws concerning local land use regulation. Some basis must be given for deciding who will bear the costs of antenna siting; this would seem to be the primary responsibility of the Congress.