Post by Jm Herbst on Jan 29, 2014 17:42:17 GMT -5
Among the changes to our covenants proposed by the SLohA rulebook committee is a proposal to amend Covenant No.6. Specifically, it is proposed to drop “freestanding radio or television antennas” from the list of prohibited structures on individual owner sites. The reason given for the proposed change is that it is no longer enforceable as a result of the passage of the federal Telecommunications Act. Supposedly, this law takes away the power of local governments and homeowners associations to regulate the construction of these towers. It is argued that that power now rests exclusively with the Federal Communications Commission.
That explanation didn’t sound quite right to me so I contacted a former colleague of mine, Sct Post the City Attorney for West Allis, Wisconsin. Sct directed me to a number of federal court decisions which, in fact, limited the FCC’s power to overrule the zoning powers of local governments. I decided to go further and retained Orlando Attorney Frd O’Neal, who specializes in condominium and homeowner association law. As it turns out, there have been over 100 federal court decisions which limit the FCC’s power in such matters. Perhaps the most relevant case, however, was that of American Towers, Inc. vs City of Washington D C. In that case, the City’s building inspection department revoked the building permit of American Towers for the construction a “Personal Wireless Service” communications tower based upon the City’s allegation had misrepresented the purpose of this tower in its application for a building permit. American Towers then sued, stating that the City had overstepped its powers and that only the FCC had regulatory authority. Federal District Judge Paul Friedman, however, disagreed. In his decision, he stated:
Both parties acknowledge that, if built, plaintiff's tower would provide both HDTV services and personal wireless services. The parties also agree that while an antenna or antennas will be added to the tower to provide personal wireless services, the primary purpose of the tower — and, more importantly, the reason for its height — is to provide HDTV services. What the parties dispute is whether the existence of even a single personal wireless services antenna on a structure such as plaintiff's, regardless of the structure's other purpose or purposes, automatically subjects that structure to the statutory zoning limitations of the Telecommunications Act and therefore brings it outside the regulatory authority of the District. The answer to that question in light of the facts presented here is clearly no.
Congress simply could not have intended that any structure that has personal wireless communications as a secondary purpose is beyond the zoning authority of the state or local government. The reason for the excessive height of the tower in this case is the fact that it must be tall enough to provide HDTV services, not personal wireless communications services. The District's concerns with the construction of plaintiff's tower stem from its proposed height and thus from the fact that it is primarily an HDTV tower, not a personal wireless service facility. The District's actions with respect to plaintiff's tower do not prevent it from constructing a "personal wireless service facility" on American Tower's site or from providing "personal wireless services." Unfortunately for plaintiff's claim of federal jurisdiction, the zoning limitations set forth in Section 332(c)(7)(B) of Telecommunications Act do not apply in this case; plaintiff simply is not entitled to the protections from local regulation that the Act may provide in other contexts.
Even if the limitations of the Telecommunications Act did apply, it does not appear that the District violated any of those provisions. As discussed previously with respect to plaintiff's equal protection claim, defendants' actions neither "unreasonably discriminated among the providers of functionally equivalent services" nor had "the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). It also is clear that since the factual and legal reasoning behind the District's decision to rescind the permit was explained to plaintiff in writing, see Amended Complaint, Exs. 9 & 11, and since that explanation indicates that the District's actions were supported by substantial evidence in the record before it, the requirements of Section 332(c)(7)(B)(iii) were satisfied. Finally, while Section 332(c)(7)(B)(iv) of the Act prohibits any regulation on the placement of wireless facilities based upon environmental effects, the restriction by its explicit terms applies only to regulations on facilities based on concerns over radio frequency emissions. Because the District's expressed concern was over falling ice and the resulting safety risk, the District's action would appear to fall outside of Section 332(c)(7)(B)(iv)'s prohibition. The Court therefore will dismiss Count Four of plaintiff's amended complaint.
Simply put, Judge Friedman interpreted the extent of the FCCs authority under the Telecommunications Act only applies to things like amateur radio (i.e. ham) towers. He did not believe that Congress intended to extend the FCC’s authority to commercial broadcast towers – in this case, an HDTV tower.
Given these facts, I strongly urge members of the SLohA to reject the proposed change to Covenant No.6.
That explanation didn’t sound quite right to me so I contacted a former colleague of mine, Sct Post the City Attorney for West Allis, Wisconsin. Sct directed me to a number of federal court decisions which, in fact, limited the FCC’s power to overrule the zoning powers of local governments. I decided to go further and retained Orlando Attorney Frd O’Neal, who specializes in condominium and homeowner association law. As it turns out, there have been over 100 federal court decisions which limit the FCC’s power in such matters. Perhaps the most relevant case, however, was that of American Towers, Inc. vs City of Washington D C. In that case, the City’s building inspection department revoked the building permit of American Towers for the construction a “Personal Wireless Service” communications tower based upon the City’s allegation had misrepresented the purpose of this tower in its application for a building permit. American Towers then sued, stating that the City had overstepped its powers and that only the FCC had regulatory authority. Federal District Judge Paul Friedman, however, disagreed. In his decision, he stated:
Both parties acknowledge that, if built, plaintiff's tower would provide both HDTV services and personal wireless services. The parties also agree that while an antenna or antennas will be added to the tower to provide personal wireless services, the primary purpose of the tower — and, more importantly, the reason for its height — is to provide HDTV services. What the parties dispute is whether the existence of even a single personal wireless services antenna on a structure such as plaintiff's, regardless of the structure's other purpose or purposes, automatically subjects that structure to the statutory zoning limitations of the Telecommunications Act and therefore brings it outside the regulatory authority of the District. The answer to that question in light of the facts presented here is clearly no.
Congress simply could not have intended that any structure that has personal wireless communications as a secondary purpose is beyond the zoning authority of the state or local government. The reason for the excessive height of the tower in this case is the fact that it must be tall enough to provide HDTV services, not personal wireless communications services. The District's concerns with the construction of plaintiff's tower stem from its proposed height and thus from the fact that it is primarily an HDTV tower, not a personal wireless service facility. The District's actions with respect to plaintiff's tower do not prevent it from constructing a "personal wireless service facility" on American Tower's site or from providing "personal wireless services." Unfortunately for plaintiff's claim of federal jurisdiction, the zoning limitations set forth in Section 332(c)(7)(B) of Telecommunications Act do not apply in this case; plaintiff simply is not entitled to the protections from local regulation that the Act may provide in other contexts.
Even if the limitations of the Telecommunications Act did apply, it does not appear that the District violated any of those provisions. As discussed previously with respect to plaintiff's equal protection claim, defendants' actions neither "unreasonably discriminated among the providers of functionally equivalent services" nor had "the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). It also is clear that since the factual and legal reasoning behind the District's decision to rescind the permit was explained to plaintiff in writing, see Amended Complaint, Exs. 9 & 11, and since that explanation indicates that the District's actions were supported by substantial evidence in the record before it, the requirements of Section 332(c)(7)(B)(iii) were satisfied. Finally, while Section 332(c)(7)(B)(iv) of the Act prohibits any regulation on the placement of wireless facilities based upon environmental effects, the restriction by its explicit terms applies only to regulations on facilities based on concerns over radio frequency emissions. Because the District's expressed concern was over falling ice and the resulting safety risk, the District's action would appear to fall outside of Section 332(c)(7)(B)(iv)'s prohibition. The Court therefore will dismiss Count Four of plaintiff's amended complaint.
Simply put, Judge Friedman interpreted the extent of the FCCs authority under the Telecommunications Act only applies to things like amateur radio (i.e. ham) towers. He did not believe that Congress intended to extend the FCC’s authority to commercial broadcast towers – in this case, an HDTV tower.
Given these facts, I strongly urge members of the SLohA to reject the proposed change to Covenant No.6.
