DAS debate - federal rules give wireless carriers the upper hand dealing with towns
The discussion and debate at recent public hearings on a tri-town proposal to create a distributed antenna system (DAS) to support up-Island cell service has focused on the pros and cons of cell phone service, possible health risks, and the visual impact of towers.
What is a wireless tower has even become a debatable point. For some, it is a metal frame structure reaching above the skyline. For others, it is a telephone pole with an antenna on top.
In an effort to be clear about one issue, namely the latitude available under federal law for towns such as Aquinnah, Chilmark, and West Tisbury to regulate, or even prohibit facilities that are used to create cell service, the selectmen of the three towns agreed to ask the law firm of Reynolds, Rappaport & Kaplan for an analysis of the law and its application in the three towns.
An attorney from that firm, Michael Goldsmith, in a June 16 letter addressed to the Chilmark selectmen, advised that the lay view that towns have very limited authority to control or prohibit service providers from building facilities, including towers, in their towns, is accurate.
"In summary," Mr. Goldsmith writes, "if a significant gap in coverage exists, a town may: a.) reasonably regulate the location of a cell facility; b.) require a provider to explore alternative sites; and c.) impose reasonable conditions to mitigate the impact of the facility. However, the [federal Telecommunications Act] precludes a town from effectively prohibiting the construction of a facility."
The federal government determined that improved wireless service, however it is delivered to the public, is a good thing. And the federal law - through precedents established in the courts - overrides local views including objections to or unreasonable attempts to modify cell tower installations, according to Jeff Steinberg, Federal Communication Commission (FCC) deputy chief of the spectrum and competition policy division.
The US Telecommunications Act (TCA) of 1996 makes clear that the universal availability of wireless cell phone services is, in the federal government's view, in the public interest and critical to public safety. Further, the legislation puts restrictions on what towns such as the three up-Island towns now considering the DAS system may write into their zoning bylaws in order to prohibit the construction of wireless systems.
A community's zoning bylaws may give preference to one tower location rather than another for aesthetic reasons or create an administrative process for a carrier that wishes to erect a tower or DAS in a business district, and require more onerous special zoning permits in residential areas, Mr. Steinberg said.
In 2005, the wireless carrier Cingular, now AT&T, signed a five-year lease with the Gay Head Baptist Church to place a wireless antenna in the church steeple. The town planning board opposed the carrier's plan, and the matter ended up in federal court.