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.
In an out-of-court settlement, Cingular agreed not to renew its lease if Aquinnah had another system up and running that was adequate to meet the carrier's needs, meaning one that provided at least 51percent coverage, Camille Rose, Aquinnah selectman and planning board chairman, explained recently. The company has yet to install equipment in the steeple.
The examination of the DAS alternative began in Aquinnah when voters mounted a multi-pronged effort to take control of the town's wireless future and prevent construction of a tall tower by creating a wireless overlay district that would allow for the installation of DAS equipment at the town landfill.
Aquinnah then sought to cooperate with Chilmark and West Tisbury. Although the towns could potentially earn some income from a DAS, the selectmen said their goal is to provide better wireless service for residents and visitors, improving public safety but being careful to guard against cell towers.
DAS relies on a series of radio access nodes (RAN) connected to antennas set on telephone poles, or poles erected for the purpose, to distribute cellular telephone signals. Although the range is considerably less, the DAS appeals to communities where a high conventional tower is unwelcome but cell coverage is poor.
The results of the Aquinnah legal skirmish with Cingular and nearly a hundred other lawsuits across the country, Mr. Steinberg said, have made it clear that the telecommunications act gives service providers the authority to expand service.
"Usually these court cases take the form of legal challenges. A local community has said 'no' to a carrier and the carrier has challenged that decision in court," Mr. Steinberg explained. And at the same time, Mr. Steinberg said, licensed cell carriers are being pressured to "make available to all people as far as possible rapid, effective wireless service."
The TCA provides that local communities may restrict the location of cell towers and cell service equipment, but they may not implement legal restrictions that ban such technology outright.
Section 704 of the TCA outlines the state and local government zoning issues and the needs of wireless providers in the buildout of a wireless infrastructure.
"The section says that the local governments cannot unreasonably discriminate in their decisions, cannot prohibit the providing of service, must act on permitting applications in a reasonable time, and any decision to deny has to be in writing and supported by evidence," according to Mr. Steinberg.
"And," he added, "local governments cannot regulate on the basis of radio frequency emissions if the level of emissions complies with the FCC safety regulations. ...The FCC does limit the amount of radio frequency emissions that people can be exposed to, based on enormous amounts of scientific research, and there is a large margin for safety." In Aquinnah, the town attempted to bar the use of the steeple by claiming that it would pose a health risk.
A community may set out in its zoning by laws aesthetic preferences for one tower location rather than another, or a town may agree that it will only require an "administrative process" should a carrier wish to put in a tower or DAS in a business district, but require a special zoning permit if the building were planned for a residential area, Mr. Steinberg said.
Federal court rulings
Towns that want to limit wireless carriers as regards planned towers often cite a 2008 ruling by the U.S. Ninth Circuit Court which upheld the right of the county of San Diego to limit the placement, size and design of towers and poles that are needed for companies to provide service. The Ninth Circuit ruling holds that it misinterpreted federal law when it issued the earlier ruling and that local governments may regulate wireless towers and poles, as long as the local rules don't prohibit wireless service within their borders or create a "significant gap in service coverage."
However, in March 2009, the federal court serving the Southern District of New York ruled that the wireless communications zoning ordinance implemented by the town of Clarkstown unconstitutional, because it attempted to regulate the communication technology to be used by Verizon in violation of the Telecommunications Act of 1996.
In that ruling, the New York court held that the local zoning law was unconstitutional "because it was expressly preempted by the TCA, which prohibited local laws from regulating the environmental effects of wireless facilities and barred local acts that effectively interfered with a carrier's ability to provide personal wireless communications services."
DAS or what
Currently, Aquinnah, Chilmark and West Tisbury are cooperating on DAS, under the terms of a memorandum of understanding, to investigate the prospects for improving cell phone service.
"We are trying to regionalize something that should be regionalized," West Tisbury selectman Richard Knabel said. He is a member of the tri-town wireless committee.
Both Mr. Knabel and JB Riggs Parker, Chilmark selectman and a member of the committee, said they believe that the clock is ticking for expanded cell service, and either the towns come up with an alternative system or there will be towers placed in their towns.
"The judge told Cingular that they would have to wait a year after the steeple became operative to apply for another tower...and that is what pushed us," said Ms. Rose, about the drive for a DAS alternative. "We knew then that they would do another tower. They are entitled to protect their investment and cannot be stopped."
The towns have selected American Tower Corporation (ATC) of Boston to construct the up-Island DAS. Simultaneously, ATC is negotiating with NSTAR and Verizon to use existing jointly owned utility poles for the siting of the DAS antennas.
"NSTAR recently signed an agreement to proceed with the project, acknowledging that the job will proceed within NSTAR specifications," according to NSTAR spokesman Mike Durand. The agreement allows ATC the use of NSTAR non-primary poles, those carrying less than 25,000 volts of electricity, where there are no safety or reliability issues.
The document will next go to Verizon for its agreement to the project. With both companies in agreement, the commitment will be forwarded to ATC.
In its original response to the RFP, ATC estimated that it would need to use about 1,200 of the towns' existing utility pole network to hang the fiber optic wire needed for the DAS system. Currently, the modified system design calls for 47 poles to be outfitted with the antennas that transmit and receive wireless signals. ATC anticipates that it will need to install new wooden poles rather than outfit existing utility poles because of existing NSTAR restrictions.
The issue of what is a pole or tower has been the subject of some debate at public hearings. In a written statement issued June 12, ATC said, "While there may not be any legal definition of what constitutes a `tower' or a `pole,' practically speaking what American Tower is proposing is similar to the wooden utility poles that are already in the public right of way. Generally, cell phone towers are large steel structures 120-plus feet in height with multiple antenna arrays on the structure, large shelters and one or more diesel generators at the base. The town's RFP was to prevent such structures from being constructed. In its place, less impactful solutions were sought. American Tower's DAS approach would employ utility poles with minimal equipment, in line with the RFP's goal."
According to ATC and FCC officials, if poles need to be sited on private property ATC would negotiate legally binding easement agreements with private property owners.
