Wireless Technologies and the National Information Infrastructure.
Chapter 8 - Zoning Regulations and Antenna Siting:
Footnotes

* CHAPTER 8 FOOTNOTES *

1. Bob Roche, director of research, Cellular Telecommunications Industry Association, personal communication, May 31, 1995.

2. Examples of reporting on this issue from local communities include: James Rush, "Towering Controversy: Expansion of Cellular Antenna Systems a Local, National Issue," The Seattle Press, vol. 10, No. 3, Apr. 12-26, 1995, pp. 1ff; Sandi Coburn, "Cellular One's Call Waiting," Suburban News (New Jersey), June 15, 1994, pp. 1, 14; Michelle DeBlase and Dina Masarani, "East Brunswick, Old Bridge Vote: Local Officials Urge Cellular Tower Limits," Home News (New Jersey), Sept. 30, 1994, pp. B1, B6; Norman O'Donnell, "Phone Trouble: Everyone Wants Cellular Phones, but Many Don't Want To Live Near the Antennas That Make Them Work," Gannett Suburban Newspapers (New Jersey), Aug. 24, 1994, pp. 1A, 2A; "Cellular Phones: West Hollywood, Cal., Denies Transmission Post," EMF Litigation News, November 1993, p. 535.

3. Cellular Telecommunications Industry Association, "Petition for Rulemaking," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Dec. 22, 1994, and Electromagnetic Energy Association, "Petition for Further Notice of Proposed Rulemaking," before the Federal Communications Commission, In the Matter of Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, Dec. 22, 1994.

4. 47 U.S.C., sec. 332(c)(3)(A).

5. Some leaders in the House of Representatives have already signaled that they now support preemption. See remarks by Rep. Newt Gingrich to Wireless `95 conference, New Orleans, LA, Feb. 1, 1995.

6. Federal Communications Commission, Preemption of Local Zoning or Other Regulation of Receive-Only Satellite Earth Stations, 59 R.R.2d 1073 (1986).

7. Ideally, the transmitter should be located at the center of the cell, but in any case should be located at a distance no more than one-fourth of the cell radius from the center. Cellular Telecommunications Industry Association, "Local Zoning vs. Wireless Communication: A Case for Federal Preemption?" briefing paper, (January 1995), p. 2.

8. Jaymes D. Littlejohn, "The Impact of Land Use Regulation on Cellular Communications: Is Federal Preemption Warranted?" Federal Communications Law Journal, vol. 45, No. 2, April 1993, p. 250.

9. Estimates of the added costs to the wireless industry of local regulatory proceedings are not available.

10. "Hundt Says Local Government Regs Could Slow Competition," Telecommunications Reports, Mar. 13, 1995, p. 24.

11. Cellular Telecommunications Industry Association, "Reinventing Competition: The Wireless Paradigm and the Information Age," (February 1995), p. 13.

12. Due to collocation of antennas, local effective radiated power levels may vary substantially.

13. There are three generally available types of satellite dishes that correspond to different satellite frequencies and services: 1) large 8- to 12- foot diameter dishes, known as C-band antennas; 2) smaller dishes, about 3 feet in diameter, known as Ku-band antennas, used, for example, to receive broadcasts from Primestar; and 3) small dishes, about 18 inches across, known as direct satellite service (DSS) dishes, used to receive broadcasts from DirecTV and United States Satellite Broadcasting (USSB).

14. Federal Communications Commission, "Preemption of Local Zoning or Other Regulation of Receive-Only Satellite Earth Stations," report and order, 47 CFR Part 25, Federal Register 51(31):5519-5527, Mar. 14, 1986.

15. Satellite Broadcasting and Communications Association of America, "Reply Comments," before the Federal Communications Commission, Preemption of Local Zoning Regulation of Satellite Antennas, Report No. DS-1311, July 12, 1993.

16. Ibid., pp. 9-12.

17. United States v. Lopez, No. 93-1260, decided Apr. 26, 1995.

18. Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, 2nd ed., vol. 2, sec. 12.1, pp. 62-63. It should be noted that there is no mention of preemption in the Constitution itself.

19. 312 U.S. 52, at 67 (1941).

20. Rotunda and Nowak, op. cit., footnote 18, sec. 12.3, p. 73.

21. Reagan, R. R., President, United States, "Executive Order No. 12612-- Federalism," (Oct. 26, 1987), secs. 4(a), (c), reprinted in 52 FR 41685 (1987).

22. Rotunda and Nowak, op. cit., footnote 18, sec. 12.4, p. 76.

23. Federal Communications Commission, "Public Mobile Radio Services," final rule, 47 FR 10,018, 10,033 (1982), cited in Littlejohn, op. cit., footnote 8, p. 259.

24. This amendment streamlined all commercial mobile radio services into one regulatory framework. Public Law 103-66, Aug. 10, 1993.

25. 47 U.S.C., sec. 332(c)(3)(A). OTA found no legislative history in this regard.

26. Cellular Telecommunications Industry Association, op. cit., footnote 3, p. 7.

27. Littlejohn, op. cit., footnote 8, pp. 259-261.

28. Ibid., pp. 253-256, citing Puerto Rico Telephone Company v. FCC, 553 F.2d 694, 698 (1st Cir. 1977), which determined that the FCC could prohibit the private branch exchange (PBX) rule as it, in effect, encroached on the FCC's authority over interstate commerce, and relied on Ambassador, Inc. v. United States, 325 U.S. 317 (1945), which affirmed that the FCC's jurisdiction "extends to `interstate wire communication from its inception to its completion.'"

29. National Association of Regulatory Utility Commissions v. FCC, 746 F.2d 1492, 1501 (D.C. Cir. 1984), cited in Littlejohn, op. cit., footnote 8, p. 256.

30. Littlejohn, op. cit., footnote 8, p. 256.

31. For examples of local opposition to cellular antennas that wireless companies say show significant added costs or other burdens, see McCaw Cellular Communications, Inc., "Comments," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Feb. 17, 1995, pp. 10- 19, and Southwestern Bell Mobile Systems, Inc., "Comments," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Feb. 16, 1995, pp. 8-15.

32. "Local Groups Oppose Radio Tower Preemption Request," Telecommunications Reports, Feb. 20, 1995, p. 45.

33. Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986), sec. 2(B), cited in Natural Resources Defense Council, "Comments," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Feb. 16, 1995, p. 5.

34. Natural Resources Defense Council, op. cit., footnote 33, p. 3.

35. 763 F.2d 379 (10th Cir. 1985), cited in Littlejohn, op. cit., footnote 8, p. 260.

36. According to the economic analysis of rights, as articulated by Ronald Coase, for an efficient economic outcome to be achieved, it matters little which party bears the economic burden of ameliorating a noxious or objectionable condition. In the case of antenna siting, either the wireless company or the local residents pay for making antenna siting less objectionable, but in end the cost of service will be the same. The fact that costs can be arbitrarily allocated means that some basis for deciding must be determined. For a discussion of Coase's Theorem, see Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978), pp. 81-107.

37. See George Curtis of Seattle, WA, "Comments," and R. James Pidduck, of Edmonds, WA, "Comments," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Feb. 14, 1995 and Feb. 17, 1995.

38. See, for example, Town of Greenburgh, NY, "Local Law on Temporary Moratorium on the Establishment of New Commercial Antenna," 1995, and Abby Gilbert of Washington, DC, "Comments," before the Federal Communications Commission, In the Matter of Amendment of the Commission's Rule To Preempt State and Local Regulation of Tower Siting For Commercial Mobile Services Providers, RM-8577, Feb. 12, 1995.

39. 47 U.S.C., sec. 332 (a).

40. Cellular Telecommunications Industry Association, op. cit., footnote 7, p. 5.

41. 47 CFR 25.104. 

    Program Ref: Industry, Telecommunications, and Commerce Program