The Telecommunications Act of 1996, sections 253(a) and 332(c)(7), say that a state or local government cannot regulate the placement, construction or modification of cell antenna / tower facilities in a way that prohibits or effectively prohibits the company from providing service. This is key.
Cities have broad regulatory powers preserved by the Telecommunications Act of 1996 (TCA) (47 U.S.C.§332. (c)(7)(A)) The City can regulate cell antenna placement as long as such regulation does not “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” (47 U.S.C.§253.(a)), “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” (47 U.S.C.§332. (c)(7)(B)(i)(II)) The City has the power to make fact finding determinations as to whether the proposal for a cell antenna complies with the requirements set forth in the local zoning code, whether there is a significant gap in coverage and whether denying an application for a proposed cell antenna would prohibit cell phone service. The City can also state what kinds of substantial evidence it will use and require to prove these things. Elk Grove has failed to amend its zoning code to keep cell antennas away from homes and schools.
The one section of the TCA 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)).”.