Section 704 of the 1996 Telecommunications Act contains several key provisions affecting the authority of municipalities to regulate the placement of towers for cellular telephones, personal communications services, and other similar transmitters. Generally, the act preserves municipal zoning authority as it relates to radio towers and their siting, but it also creates three key protections for firms seeking to erect a tower:
- Local ordinances may not “unreasonably” discriminate among providers of functionally equivalent services. Tower siting policies must not favor one company, or one technology, over another;
- Local government may not impose a blanket prohibition against the placement of telecommunications towers; and
- Local ordinances may not impose more stringent “environmental effects” limits on radio frequency emissions than those adopted by the Federal Communications Commission (FCC).
A municipality would do well to encourage colocation of telecommunications facilities — essentially the sharing of a single tower by multiple telecommunications services. Such practices have the potential to reduce the proliferation of towers. Federal law encourages this practice and gives cities some leverage to assure that legitimate efforts are made to effect colocation. 47 U.S.C. 251(c)(1) and 47 U.S.C. 251(c)(6) discuss the “duty” of telecommunications service to negotiate in good faith for colocation opportunities. Municipal ordinances should reflect this obligation, and final tower approval should depend on an applicant’s demonstration of these efforts.
Federal law allows cities to deny construction permit applications for telecommunications towers. The denial, however, must be based on a reasoned approach, otherwise the FCC is authorized to pre-empt the local decision and grant the construction permit.
Without adopting a telecommunications tower policy, it is doubtful that a municipality’s denial of a construction permit will be seen as resulting from a reasoned approach.