The Siting of Wireless Communications Facilities: An Overview of Federal, State, and Local Law

The Siting of Wireless Communications
Facilities: An Overview of Federal, State, and
Local Law
Kathleen Ruane
Legislative Attorney
American Law Division
The siting of wireless communications facilities has been a topic of controversy in
communities all over the United States. Telecommunications carriers need to place
towers in areas where coverage is insufficient or lacking to provide better service to
consumers, while local governing boards and community groups often oppose the siting
of towers in residential neighborhoods and scenic areas. The Telecommunications Act
of 1996 governs federal, state, and local regulation of the siting of communications
towers by placing certain limitations on local zoning authority without totally
preempting state and local law. This report provides an overview of the federal, state,1
and local laws governing the siting of wireless communications facilities.
Federal Law Governing the Placement
of Wireless Telecommunications Facilities
Section 704 of the Telecommunications Act of 1996 governs federal, state, and local
regulation of the siting of “personal wireless service facilities” or cellular communication
towers.2 Under the 1996 Act, state and local governments are prohibited from
unreasonably discriminating among “providers of functionally equivalent services.”3
This prohibition has been interpreted to provide state and local governments with the
“flexibility to treat facilities that create different visual, aesthetic, or safety concerns
differently to the extent permitted under generally applicable zoning requirements even

1 This report was originally written by Angie Welborn, formerly a Legislative Attorney,
American Law Division.
2 Codified at 47 U.S.C. 332(c)(7).
3 47 U.S.C. 332(c)(7)(B)(i)(I).

if those facilities provide functionally equivalent services.”4 However, state and local
governments cannot adopt policies that prohibit or have the effect of prohibiting the
provision of personal wireless services.5 This provision not only applies to outright bans
on tower siting, but also to situations where a state or local government’s “criteria or their
administration effectively preclude towers no matter what the carrier does.”6 In these
cases, the carrier must show “not just that this application has been rejected but that
further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.”7
The act also prescribes certain procedures that a state or local government must
follow when reviewing a request to place, construct, or modify personal wireless service
facilities. The state or local government must “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.”8 If the state or local government denies the request,
the denial must be in writing and supported by “substantial evidence contained in a
written record.”9 Substantial evidence has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”10
Courts have found that aesthetics may constitute a valid basis for the denial of a
wireless permit so long as there is substantial evidence of the adverse visual impact of the
proposed tower.11 In fact, according to one court, “nothing in the Telecommunications
Act forbids local authorities from applying general and nondiscriminatory standards
derived from their zoning codes, and ... aesthetic harmony is a prominent goal underlying
almost every such code.”12 Federal courts therefore have routinely upheld the denials of
applications to construct wireless towers where the decisions of local entities were in
writing and based on evidence that the tower would diminish property values, reduce the
ability of property owners in the vicinity of the proposed tower to enjoy their property, or
damage the scenic qualities of the proposed location.13 However, generalized aesthetic

4 Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2nd Cir. 1999).
5 47 U.S.C. 332(c)(7)(B)(i)(II).
6 Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F.3d

9, 14 (1st Cir. 1999).

7 Id.
8 47 U.S.C. 332(c)(7)(B)(ii).
9 47 U.S.C. 332(c)(7)(B)(iii).
10 Nextel Partners of Upstate New York, Inc. v. Town of Canaan, 62 F.Supp.2d 691, 695 (N.D.
N.Y. 1999), citing Universal Camera v. NLRB, 340 U.S. 474, 477 (1951).
11 See e.g., Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002), Southwestern
Bell Mobile Sys. v. Todd, 244 F.3d 51 (1st Cir. 2001), Omnipoint Corp. v. Zoning Board, 181
F.3d 403 (3d Cir. 1999), AT&T Wireless PCS, Inc. v. Winston-Salem Bd. of Adjustment, 172
F.3d 307 (4th Cir. 1999).
12 Aegerter v. City of Delafield, 174 F.3d 886, 891 (7th Cir. 1999).
13 See USCOC of Greater Iowa, Inc. V. Zoning Bd. of Adjustment, 465 F.3d 817 (8th Cir. 2006)
(upholding the denial of a permit to construct a tower based in part upon the fact that the tower
would obstruct the view from the window of nearby residential property), Omnipoint Commc’n

concerns will not be considered “substantial evidence” to support the denial of a permit.14
For example, the Seventh Circuit upheld the reversal of a denial of a petition based on
aesthetic concerns where the only evidence that the proposed tower would be unsightly
was the testimony of a few residents that they did not like poles in general, and those
residents admitted that they had no objection to flagpoles, the proposed disguise for the
wireless tower.15 Blanket opposition to poles could not constitute “substantial evidence,”
in the opinion of the court.16
Many community groups also oppose the siting of towers based on health and
environmental concerns.17 However, the Telecommunications Act of 1996 prohibits state
and local governments from regulating the placement of personal wireless service
facilities on the basis of the effects of radio frequency emissions if the facility in question
complies with the Federal Communications Commission’s regulations concerning such
emissions.18 “As written, the purpose of the requirement is to prevent
telecommunications siting decisions from being based upon unscientific or irrational fears
that emissions from the telecommunications sites may cause undesirable health effects.”19
Courts have enforced this provision of the act and have noted that “concerns of health
risks due to the emissions may not constitute substantial evidence in support of denial.”20
The act also provides for the appeal of a state or local government’s denial of a
request to place, construct, or modify a facility.21
Section 704(c) of the Telecommunications Act provided that within 180 days of the
enactment of the act, “the President or his designee shall prescribe procedures by which
Federal departments and agencies may make available on a fair, reasonable, and
nondiscriminatory basis, property, rights-of-way, and easements under their control for

13 (...continued)
v. City of White Plains, 430 F.3d 529 (2nd Cir. 2005) (concluding that the zoning board was
entitled to rely on aesthetic objections raised by members of the community that are familiar with
the area); Voicestream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818 (7th Cir. 2003)
(holding that the county’s denial of a wireless tower permit was supported by substantial
evidence that the proposed tower would mar an especially scenic stretch of land).
14 New Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir. 2002).
15 Prime Co Personal Commc’n v. City of Mequon, 352 F.3d 1147, 1151 (7th Cir. 2003).
16 Id.
17 Malcolm J. Tuesley, Not in My Back Yard: The Siting of Wireless Communications Facilities,

51 Fed. Comm. L. J. 887, 902.

18 47 U.S.C. 332(c)(7)(B)(iv). Cellular Phone Task Force challenged the FCC’s RF radiation
guidelines. Cellular Phone Task Force v. FCC, 205 F.3d 82 (2nd Cir. 2000). The Court upheld
the FCC’s radiation guidelines, finding that they were not arbitrary and capricious under the
circumstances. Id. at 96.
19 51 Fed. Comm. L. J. at 902.
20 Telespectrum, Inc. v. Public Service Commission of Kentucky, 227 F.3d 414 (6th Cir. 2000).
See also Illinois RSA No. 3, Inc. v. County of Peoria, 963 F.Supp. 732, 745 (C.D. Ill. 1997).
21 47 U.S.C. 332(c)(7)(B)(v).

the placement of new telecommunications services.”22 President Clinton issued a
memorandum on August 10, 1995, directing the Administrator of General Services, “in
consultation with the Secretaries of Agriculture, Interior, Defense, and the heads of such
other agencies as the Administrator may determine, to develop procedures necessary to
facilitate appropriate access to Federal property for the siting of mobile services
antennas.”23 The General Services Administration published procedures for the
placement of commercial antennas on federal property in the Federal Register on March
29, 1996.24 On March 14, 2007, the General Services Administration published updated
procedures for the placement of commercial antennas on federal property in the Federal
Register.25 These replacement procedures shall remain in effect indefinitely.26
State Statutory Provisions
Apart from the specific limitations set forth in the Telecommunications Act of 1996,
federal law does not appear to affect state or local zoning authority with regard to the
placement of wireless communications towers.27 Most states delegate zoning authority
to local bodies. However, some states offer guidance on what factors should be
considered by the local entities when considering applications for permits to construct
wireless communications facilities. For example, the State of New Hampshire has
enacted a law concerning the visual effects of tall wireless antennas.28 The law does not
alter any municipal zoning ordinance or preempt the Telecommunications Act of 1996.29
It does, however, recognize that the visual effects of tall antennas “may go well beyond
the physical borders between municipalities,” and in doing so it encourages local
governing bodies to address the issue “so as to require that all affected parties have the
opportunity to be heard.”30 The statute also provides that carriers, wishing to build
personal wireless service facilities, should consider commercially available alternatives
to the tall towers, such as lower antenna mounts, disguised or camouflaged towers, and
custom designed facilities to minimize the visual impact on the surrounding area.31
An Illinois law sets forth guidelines for telecommunications carriers to consider
when choosing a location for and designing a facility.32 The law specifically states that
it does “not abridge any rights created by or authority confirmed in the federal

22 P.L. 104-104, § 704(c).
23 Facilitating Access to Federal Property for the Siting of Mobile Services Antennas, 31 Weekly
Comp. Pres. Doc. 1424 (August 10, 1995).
24 61 Fed. Reg. 14,100 (1996).
25 72 Fed. Reg. 11,881 (2007).
26 72 Fed. Reg. 11,881 (2007).
27 47 U.S.C. 332(c)(7)(A).
28 R.S.A. 12-K:1, effective August 7, 2000.
29 R.S.A. 12-K:1(I) and (VI).
30 R.S.A. 12-K:1(II).
31 R.S.A. 12-K:1(III).
32 55 ILCS 5/5-12001.1.

Telecommunications Act of 1996.”33 Rather, the law offers a list of locations - from
“most desirable” to ‘least desirable” - for the siting of telecommunications facilities, with
non-residentially zoned lots as the most desirable and residentially zoned lots that are less
than 2 acres in size and used for residential purposes as the least desirable.34 The
guidelines set forth for designing a facility include preserving trees in the area or replacing
trees removed during construction, landscaping around the facility, and designing
facilities that are compatible with the residential character of the area.35
In addition to the alternatives listed above, states can encourage the use of existing
infrastructure as opposed to the construction of new facilities in order to reduce the total
number of towers in an area. For example, in Kentucky, state law allows the local
planning commission to require the company applying for the construction permit “to
make a reasonable attempt to co-locate” their equipment on existing towers if space is
available and the co-location does not interfere with the structural integrity of the tower
or require substantial alterations to the tower.36 The statute gives the planning
commission the authority to deny an application for construction based on the company’s
unwillingness to attempt to co-locate.37 Connecticut has also enacted a law which allows
local entities to require the sharing of towers whenever it is “technically, legally,
environmentally and economically feasible, and whenever such sharing meets public
safety concerns.”38
Local (Municipal or County) Law
Many local governments, through the use of their zoning authority, attempt to limit
the impact cellular towers have on the surrounding environment. One county in Georgia,
enacted a “Telecommunications Tower and Antenna Ordinance,” which set up a new
permit system for the construction of cellular towers in an effort to encourage construction
in nonresidential areas.39 In commercial or light industrial areas, a wireless service
provider can build a tower without review by the County Board of Commissioners as long
as a certain set of specifications are met.40 However, if a service provider wanted to
construct a tower in a residential area, a hearing is held on the matter, and construction

33 55 ILCS 5/5-12001.1(b).
34 55 ILCS 5/5-12001.1(d).
35 55 ILCS 5/5-12001.1(e).
36 K.R.S. § 100.987(6). Under federal law, utilities are required to provide telecommunications
carriers “with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or
controlled by [the utility].” 47 U.S.C. 224(f)(1).
37 K.R.S. § 100.987(7).
38 Conn. Gen. Stat. § 16-50aa.
39 Robert Long, Allocating the Aesthetic Costs of Cellular Tower Expansion: A Workable
Regulatory Regime, 19 Stan. Envtl. L. J. 373, 378. The full text of the ordinance is available at
[ h t t p : / / www.gwi nnet t c ount y. com/ depar t me nt s/ pl anni ng/ pdf / t o wer .pdf ] .
40 Id.

permits are subject to denial if a set of nine criteria are not met.41 In an effort to reduce
the number of facilities in the area, the City of Bloomington, Minnesota, enacted an
ordinance that requires wireless facilities to be designed to accommodate multiple users.42
In direct response to the limitations set forth in the Telecommunications Act of 1996,
several communities enacted moratoria on permits for cellular towers in an effort to
prevent or delay the construction of cellular communications towers.43 Under the act,
local governments cannot act to prohibit or have the effect of prohibiting wireless
communication services in their communities.44 Local governments justify the imposition
of moratoria by claiming that they need time to study the problems with tower siting and
how they should change their zoning ordinances to accommodate construction.45 Courts
have upheld moratoria that have a fixed length, such as six months.46 However, they are
less likely to uphold those that are for long periods of time or indefinite.47
Recent Developments
The FCC’s Wireless Telecommunications Bureau is seeking comment on a petition
for a declaratory ruling filed by CTIA - The Wireless Association in July of 2008.48 In
its petition, CTIA expressed concerns about the delays many wireless providers face when
applying to local and state zoning authorities to site wireless facilities. As a result, CTIA
has asked the FCC (1) to clarify the time period in which a state or local zoning authority
must act on a wireless facility siting request; (2) to declare that a failure by a state or local
zoning authority to act on a siting request within that time shall result in the application
being “deemed granted,” or, alternatively, that the applicant is entitled to a court-ordered
injunction granting the application, unless the zoning authority can justify the delay; (3)
to clarify that Section 332(c)(7)(B)(i) prohibits zoning decisions that have the effect of
prohibiting additional entrants from offering service in a given area (in other words, to
declare that Section 332(c)(7)(B)(i) is not satisfied by the presence of a single wireless
provider in an area); and (4) to preempt all ordinances and regulations that automatically
require all wireless siting applications to obtain a variance.49 Comments are due on
September 15, 2008.

41 Id. The ordinance states that towers built in residential areas must comply with certain
requirements, such as topography, height, setback, access driveways or easements, parking,
fencing, landscaping, and adjacent uses. Id. at n. 35.
42 51 Fed. Comm. L. J. at 909, citing Bloomington, Mn., Code 19.63.05(a)(1)-(4)(1996).
43 David W. Hughes, When NIMBY’s Attack: The Heights to Which Communities Will Climb to
Prevent the Siting of Wireless Towers, 23 Iowa J. Corp. L. 469, 488.
44 47 U.S.C. 332(c)(7)(B)(i).
45 23 Iowa J. Corp. L. at 488.
46 See Sprint Spectrum L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996).
47 See e.g. Spring Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457 (N.D. Ala. 1997).
48 Public Notice, Wireless Telecommunications Bureau Seeks Comment on Petition for
Declaratory Ruling by CTIA, (released August 14, 2008).
49 In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B),
WT Docket No. 08-165, July 11 2008.