WIRELESS TOWERS Planning for Cellular Towers by Ben Campanelli

Communication Service (PCS) licenses ments, see pages 7-9 of this issue]. Seated in the front row of the have been auctioned-off by the FCC, giv- Complicating things further are court meeting room is a group of ing high bidders the right to build digital rulings in several states which have stern-faced town residents. Sit- wireless phone networks which compete bestowed “utility use” status to wireless ing to the rear is a tightly knit with standard cellular service. They have telecommunication facilities, allowing cadre of business attired people paid substantial sums of money for the them in all land-use zones as if they were armed with display boards, right to operate under these licenses. See the local utility pole, cable junction box, brightly colored transparency “Personal Communication Services,” on page 10. or electric sub-station facility. The “utili- overlays, and stacks of neatly Industry analysts predict that ty” definition is not far off the mark, stapled handouts. Are they the between 122,000 and 250,000 new cell however, when one realizes that the new Wal-Mart group? No, that’s sites will be needed to meet the growing PCS wireless providers are vying not only demand of cellular phone subscribers in next month. It must be those for the mobile communication market- the United States alone. As many as half place, but for serving as a substitute for tower people. of these sites will require new towers, the wired phone lines presently in your Both groups wait patiently as the especially in suburban and rural areas home or place of business. items on the agenda are slowly dis- where few suitable tall structures are pensed. The front row participants TIME IS MONEY available to lease as antenna support perk-up when the tower agenda item platforms. Many wireless providers optimistical- is read: A public hearing will now be ly plan for only a six to eight month time held considering the appli-cation of Did the FCC and Congress know period for acquiring, permitting, and New Age Wireless, a Delaware Limit- what was coming to American towns and building their initial set of transmission ed Partnership request for approval of villages? While the landmark Telecom- a 195 foot wireless communication munications Act of 1996 does indicate an facilities in order to launch new wireless “utility” facility proposed in an R-1 intent to preserve the authority of state service in a community. Often two or residential district. and local governments over decisions more wireless providers compete for the regarding the “placement, construction, same scarce “friendly” sites within the and modifications of personal wireless target market, sometimes driving prices WHY SO MANY TOWERS? services,” Section 704(a) of the Act up for available antenna space. states: With over $20 billion being spent by As a planning commissioner “The regulation of the placement, wireless carriers for the privilege of oper- or zoning board member, if you construction, and modification of per- ating public frequencies, it’s no surprise haven’t already been through a sonal wireless service facilities by any the industry is attempting to gain quick tower request, you probably soon will. In State or local government or instrumen- approvals of their new tower sites to fact, chances are you will get to hear tality thereof shall not unreasonably begin offering service to the public. And quite a few of them. In the early 1980s, discriminate among providers of func- it is understandable when major wireless the Federal Communications Commis- tionally equivalent services and shall not telecommunication companies sue local sion (FCC) granted licenses to two com- prohibit or have the effect of prohibiting the governmental agencies for passing mora- peting cellular phone providers in each provision of personal wireless services.” toria on new tower site applications community. Over the last 15 years, cellu- (emphasis added). while they take a look at their applicable lar telephone firms have installed some The Act also expressly preempts state regulatory codes. 22,000 antenna support structures. They and local governments from regulating What can planning agencies do, have used existing building rooftops, personal wireless communications facili- given the provisions of the 1996 towers, water tanks, and similar struc- ties on the basis of the environmental Telecommunications Act which strongly tures — and occasionally built new tow- effects of radio frequency emissions to favor the growth of the wireless commu- ers when no other alternatives were the extent that such facilities comply nications industry? available. with the FCC’s regulations concerning Many communities, in consultation Starting in late 1995, from three to six such emissions. [Editor’s Note: For more with their legal counsel, are developing additional “next generation” Personal on the Telecommunications Act’s require- or modifying zoning ordinances to

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4 ensure local review consistent with the ters on a single tower). Incentives might requirements of the Telecommunications include tax abatements for “stealth” or Act. Not as often focused on, but in the camouflaged towers, and an expedited long-run even more beneficial, is strong review and approval process for towers county or regional planning for the siting proposed within preferred land use areas, of cellular towers. This is best done using public facilities, or co-locating through a collaborative effort involving with other providers. “Stealth” Towers, p. 6 all parties interested in the issue — pub- 8. Prepare criteria or a checklist for lic and private. new tower approval (which can be used at the county/regional level, or adapted ROLE OF COUNTY & REGIONAL PLANNING for local use). Among items which might be included: County and regional planning agen- • Review of site search ring analysis cies are well-situated to assist communi- reports documenting the scope of the ties in making sure that new cellular applicant’s search for existing structures towers are planned to minimize negative or property owners in preferred land use impacts. Given that cellular providers areas and the rationale for selecting the plan their networks from a regional (and site under consideration.. broader) perspective, it makes sense for • Review of visual impact analysis, the public to plan for the siting of BEN CAMPANELLI including “simulations” or digitally telecommunications facilities at the same Short monopole ~100’ w/split panel array (cellular) reproduced depictions of a “virtual” scale — instead of each locality seeking surplus highway right-of-ways. tower of like size and type viewed from to plan for tower siting independently of 3. Classify and prioritize preferred various locations around the proposed neighboring communities. land use areas for new towers. This step site. See also, “Visual Analysis,” on page 11. Based on my experience, the follow- will require cooperation and input not 9. Provide planning and engineering ing are some actions that county or just from local governments within the assistance to communities, including regional planning agencies can take to county/region, but from the wireless help with review of tower applications. help ensure that the siting of cellular communications providers. towers meshes with local (and industry) 4. Maintain a central data-base and Time to go home. It’s now needs. map of inventoried existing structures, ten-thirty P.M. Everyone’s 1. Provide community educational potentially available public facilities and workshops and forums at which plan- land, and preferred land use areas. patience is wearing a little thin. ners, industry representatives, and local 5. Have wireless service providers The tower applicant’s lawyer didn’t know if the owners of the 440’ FM residents can discuss — and begin to submit, and annually update, a county- radio tower on Harris Hill Rd. in the cooperatively plan for — the develop- wide antenna network plan. town had been asked if it could be ment of cellular networks in their area. 6. Develop criteria for tower siting 2. Conduct a county-wide inventory used as an antenna site. The appli- and design, including preferred con- cant’s radio frequency engineer testi- of existing structures suitable for use as struction materials, types and colors, set- fied that he didn’t believe the site antenna support platforms, such as com- back requirements, height restrictions, would work because it was 1 1/2 munications towers, buildings 70’ or accessory equipment location, fencing, miles from the site search ring and taller, water tanks, and inactive chim- access road criteria, co-location capacity would interfere with a cell site neys. As part of the inventory, also identi- certification, FAA lighting requirements, planned in an adjacent town. He fy existing or planned public facilities and ground screening. didn’t have signal propagation cover- and lands upon which antennas might be 7. Develop incentives to encourage age maps with him to back-up his mounted or towers constructed — e.g., good tower design and co-location of assertion. government centers, public works opera- towers (i.e., having more than one cellu- As the night wore on, it only got tion yards, police and fire stations, lar service provider locate their transmit- continued on page 6

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5 Wireless Planning for Cellular Towers Network Design continued from page 5 worse. The applicant’s site acquisition The communications site consultant admitted he did not con- acquisition process is like right-of-way tact the town’s public works director acquisition work associated with utility to see if the DPW’s 40’ roof-mounted facility build-out projects. Both involve tower stub could be rebuilt to accom- land acquisition before the project can modate both the town’s antennas and proceed. An important difference is that the applicant’s base station equip- the wireless industry does not have the ment. power of eminent domain. As more wire- In response to the neighbors’ con- less carriers “mine” site rings in each com- cern about the health effects from munity, building and land owners are radio signals emitted from the pro- becoming more familiar with the rules of Figure 1—The Perfect Grid posed antennas, the applicant’s expert the game. Even when owners are aware of consultant told them that the high controversial proposed tower sites in their powered TV broadcast towers and region, a willing owner with a suitable site 50,000 watt radio station signals can almost always be found within a typi- emanating from miles away were far cal site ring. more powerful than what the appli- There are various techniques for cant’s signal levels were going to be. designing wireless communications The commission votes to table “grids.” A grid is a set of geographic areas the tower application so that the or “cells” which organize the radio signals applicant can do more homework for the specific wireless service so that and answer all the questions put for- needs of prospective users operating cellu- ward at the meeting. The neighbor- lar phones in the system are met. hood folks are outside in the parking 1. The Perfect Grid. A “perfect grid” lot discussing whether they should wireless network plan looks like a honey- hire their own lawyer to fight the comb with each propagation “ring,” or Figure 2—Site Rings proposed tower. Someone’s cellular cell, having a hexagonal shape which phone rings. It’s one of their kids ask- interlocks with adjoining cells forming a ing his dad to pick-up a pizza they’ve seamless grid. See Figure 1. “Stealth” ordered for a sleep-over party. It’s 2. The Grid-in-Progress. The construc- time to go home. tion program is rolled-out in phases with Towers emphasis on providing coverage first to No, they’re not part of a secret the most lucrative areas within a market. Defense Department program. “Stealth” Ben Campanelli heads Targeted areas include downtowns, subur- towers are simply towers which are cam- CommQuest, a communi- ban commercial zones, industrial parks, ouflaged in ways to minimize their visibili- cations site acquisition entertainment districts, shipping facilities, ty. For service providers, the often triple consulting firm which inter-state highways, marinas, and air- costs of building such towers must be emphasizes working close- ports. weighed against the potential legal and ly with government plan- 3. Site Rings. A coverage ring is the intangible public relations costs associated ning and zoning agencies total contiguous land area which is intend- with an all-out brawl with local govern- when siting towers for ed to be served by a cell site base station ment approval agencies, impacted proper- industry clients. He has facility. A site search ring is the area inside ty owners, and neighborhood associations been involved with telecommunications issues the a coverage ring within which a suitable — as well as the lost potential revenue past eleven years. Prior to that, he served in vari- “friendly” structure or land-lease parcel generated by each site during the delayed ous positions with the City of Rochester, New must be acquired for use as a base station months it’s not on the air. See also “Cam- York, including Deputy Commissioner of Build- facility. See Figure 2. ouflaging” on page 11. ings and Property Conservation. Campanelli is author of the Cellular Tower Guide, a resource manual for local officials, land- use planners and legal professionals on the wire- less communication business and site acquisition process. For ordering information, contact Cam- panelli at: 20 Shaftsbury Rd., Rochester, NY 14610; phone & fax: 716-482-4063; e-mail: [email protected].

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6 WIRELESS TOWERS Sticks in the Air, Stakes in the Sand by R. Todd Hunt, Esq. Not since the advent of fund- effectively eliminate the provision of collocation of antennas on existing tall ing for the interstate highway wireless services in the community or, at structures as “permitted uses” in local system, has federal legislation the other end of the spectrum, be overly codes will often provide the wireless permissive causing proliferation of such telecommunication companies sufficient had such a visual impact upon the land- facilities in the community. adequate options for siting tower facili- scape as has a very small section of the ties without facing a long, drawn-out federal Telecommunications Act of 1996. review by a local planning or zoning Unless a community’s municipal offi- PINPOINT SPECIFIC LAND board. cials, by rare circumstance, have not AREAS IN THE Furthermore, designating certain received a tower facility application from COMMUNITY THAT ARE large tracts of vacant land in residential- a personal wireless telecommunication ly-zoned areas, other more sensitive service provider, they most likely have MORE ACCEPTABLE THAN commercial areas, or certain public facili- bumped up against [section 704] of the OTHERS FOR TOWER ty use areas as areas for “conditionally- 1996 Act that deals with personal wire- FACILITIES. permitted uses” with stricter standards of less service facilities and their relation to review by a local planning or zoning local land use regulation. board has proven effective. An effective It is imperative that local govern- ments update their local zoning and land A much more effective method of condition to be placed on such a condi- use regulations to accommodate the pro- developing zoning and land use regula- tional use permit is to require the compa- visions of Section 704 if they hope to tions has been to seek the assistance of ny to provide proof that it is unable to have much say in the siting of communi- both planning and wireless telecommu- locate its tower facility within one of the cation tower facilities. As one of the tech- nication experts to perform a compre- “permitted use” areas in the local code. nical consultants I have worked with hensive study of the community, its This hierarchy of land use areas and over the past year continually reminds topography, its land uses and its pro- levels of administrative review of permits me, once “an engineering stake is driven posed land uses in order to pinpoint spe- has already worked effectively in some in the sand” for a tower (analogous to the cific land areas in the community that are communities. For example, the new PCS proverbial “drawing of a line in the more acceptable than others for tower companies which are actively building sand”), the wireless tower technology facilities. out their systems have greater flexibility dictates that the options for the siting of The next step is to create a hierarchy in the siting of such facilities and have surrounding towers is necessarily of those acceptable land areas that have readily sought those areas where the use reduced. been identified in the study. The concept is “permitted” rather than “conditionally In assisting various communities of an overlay zoning district works well permitted.” over the past year on these issues, I have in this situation. The overlay district With the multitude of personal wire- seen several trends develop. Some com- retains the underlying zoning regula- less service providers entering the mar- munities attempt to deal with the 1996 tions, where not specifically superseded ket-place, municipal officials must direct Act by using traditional zoning methods by the new regulations, and does not the tower facility’s engineering stake to of confining tower facilities to certain necessarily track existing zoning district be driven in a place in the sand which is zoning districts, such as industrial and lines. most desirable to the community and its commercial districts, and imposing very For example, certain large tracts of residents. restrictive height, setback and aesthetic governmentally-owned land, large indus- R. Todd Hunt, a partner with Walter & Haver- requirements, such as substantial land- trial sites, limited access highway loca- field, P.L.L. in Cleveland, Ohio, is an experienced scaping, painting of facilities certain col- tions, and high tension electric power trial and appellate lawyer and legal counselor on ors, or even camouflaging towers to line areas may be more acceptable for municipal law, land use, and constitutional issues. make them appear to be trees in the towers than certain general commercial The above article is reprinted with permission of neighborhood. areas or residentially-zoned areas. Desig- the publisher from the May/June1997 edition of Depending upon the size and charac- nating some of those more acceptable Municipal Lawyer, published by the International teristics of the municipality, these tradi- areas as “permitted use” areas for tower Municipal Lawyers Association (1100 Vermont tional zoning methods can either facilities and designating the location or Ave., N.W., Suite 200, Washington, DC 20005).

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7 WIRELESS TOWERS The Telecommunications Act of 1996 by Brian J. Sullivan, Esq. Through the Telecommunica- PCS sites — regarding RFR. As long as obtain required permits for towers than it tions Act of 1996 (TCA), Con- the operators of those facilities comply was some years ago. However, cases gress and the President placed with the applicable FCC regulations, decided under the TCA demonstrate that state and local land use authorities are state and local governments cannot treat the United States squarely on the infor- preempted from taking action based on providers who “got there first” differently mation “superhighway.” At its core, the RFR. In contrast, zoning boards and than those who follow. Such treatment TCA seeks to ensure that American con- planning commissions may continue to would give an unfair competitive advan- sumers and businesses will have access regulate RFR levels for other facilities, tage to the early market entrants. to increasingly sophisticated communi- such as television and radio stations. For example, a court has ruled that a cations technologies at competitive rates. zoning board’s denial of a permit for a During the decade preceding enact- PCS provider because two cellular ment of the TCA, the demand for cellular STATE AND LOCAL providers were already providing service communications services grew at an GOVERNMENTS CANNOT in the same area constituted unreason- annual rate of 30 to 35 percent. In order TREAT PROVIDERS WHO able discrimination. Similarly, under the to meet this demand, the companies TCA a municipality may not simply licensed by the Federal Communications “GOT THERE FIRST” decide that it already has enough towers Commission (FCC) to provide these ser- DIFFERENTLY THAN THOSE and, on that basis, deny an application . vices sought to construct “cell sites” on WHO FOLLOW. While the TCA makes clear that no buildings and existing communications municipality may flatly exclude personal towers. Despite their efforts, no suitable wireless service facilities from within its structures existed in many areas, and the borders, the law also invalidates local providers sought permission from zon- As the FCC has observed, most regulations and decisions that have the ing boards and planning commissions to tower-mounted cell sites emit RFR at lev- effect of preventing a personal wireless erect new communications towers. Many els that are hundreds to thousands of service provider from offering effective of these applications faced opposition times below the applicable exposure lim- from nearby residents who voiced fears its. Therefore, where the tower-mounted service. of this seemingly new technology. antennas are more than 10 meters (about Thus a court has found that a munic- ipality’s denial of permission to construct New Technology or Old? 33 feet) above ground level, the FCC The TCA attempts to address the “categorically excludes” cellular a PCS site in an area necessary to serve a localized resistance to this evolving tech- providers from having to prove compli- busy Interstate highway corridor (where nology by instituting a national standard ance with the FCC’s RFR regulations. In competing companies were providing for the consideration of cellular and per- other words, the FCC presumes such uninterrupted service) violated the TCA. sonal communications service (PCS) compliance. The court reasoned that the denial would References: 47 U.S.C. 332(c)(7)(B)(iv); In the have increased the PCS provider’s costs facility applications. See “Personal Communica- Matter of Guidelines for Evaluating the Environ- — by requiring it to find a less desirable, tions Services”, page 10. That standard contains mental Effects of Radiofrequency Radiation, ET alternative site — and thereby reduced three main components: (1) regulation Docket No. 93-62, Report and Order (FCC, Aug. its ability to compete throughout its of radio frequency radiation (RFR); (2) 1, 1996); Second Memorandum Opinion and prohibitions against activities that effec- Order (FCC, Aug. 25, 1997). entire network. tively prohibit the provision of wireless In another recent example, a state service or discriminate among providers; 2. Activities that Effectively Prohibit land use court invalidated the zoning and (3) mandates to conduct the local the Provision of Wireless Service, or regulations of a Vermont town that effec- hearing process in a manner that ensures Discriminate Among Providers. tively excluded cell sites from all of the due process and timely decision making. The FCC typically licenses two cellu- high ground in that town and limited lar providers and up to six PCS providers sites to valleys and floodplains. In mak- 1. Radio Frequency Radiation (RFR) in each “market.” The TCA mandates ing this ruling, the Court held that: “In Only the Federal Communications Com- that competition between these providers mountainous and forested terrain, and mission (FCC) may regulate personal be open and free. In the land use climate especially in relatively steep and narrow wireless service facilities — cellular and that exists today, it is more difficult to valleys, cellular phone technology

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8 demands a site that is relatively high in permit applications in that locality. Brian J. Sullivan, Esq. comparison to the surrounding topogra- • Denials Must Be in Writing and Be is a member of the Burling- phy.” Hence, in such areas, municipali- Supported by Substantial Evidence. If there ton, Vermont law firm of ties must make reasonable provision for is an appeal from a denial of an applica- Burak Anderson & Mel- personal wireless service providers to tion for a personal wireless service facili- loni, PLC. He graduated from the University of have access to the high ground. ty, the state or local government bears the Chicago with General and References: 47 U.S.C. 332(c)(7)(B)(I)(i); West- burden of proof to show that it based its Special Honors and from ern PCS II Corp. v. Extraterritorial Zoning decision on substantial evidence con- Harvard Law School cum Authority of the City and County of Santa Fe, et tained in a written record. The courts al., 957 F.Supp. 1230 (D.N.M. Feb. 27, 1997); laude. Sullivan’s areas of practice include environ- have made clear that substantial evidence mental and land use law and telecommunications Sprint Spectrum, L.P. v. Jefferson County, 968 means more than “conclusory statements F.Supp. 1457 (N.D. Ala. July 31, 1997); United issues. He has represented communications States Cellular Corp. v. Board of Adjustment of the for which no explanations are provided.” providers, as well as municipalities, in a variety of City of Des Moines, Iowa, LACL NO. CL 000 Further, the mere existence of opposi- environmental and land use matters. 70195 (Iowa District Court for Polk County Dec. tion, even numerous and outspoken, 31, 1996); In re Appeals of Vermont RSA Ltd. does not constitute substantial evidence Partnership d/b/a Bell Atlantic NYNEX Mobile, and, by itself, does not suffice to support New Technology Docket Nos. E96-192 and E96-205 (Vt. Env. Ct. a decision to deny an application for a July 18, 1997). or Old? personal wireless service facility. The basic technology Instead, substantial evidence re- 3. Affirmative Obligations on State employed at cell sites has existed for quires reliance on specific, concrete evi- and Local Decisionmakers decades. A cell site consists of radio equip- dence presented to the state or local • Decision Within a Reasonable Peri- ment and antennas that transmit and boards. The state or local board must od of Time. Congress, concerned that receive radio signals at the upper end of “provide written findings of fact which opposition to applications for cell sites the ultra high frequency portion of the indicate their evidentiary basis.” would result in delays in the local hear- electromagnetic spectrum. Due to lack of ing process, mandated that zoning and References: 47 U.S.C. 332(c)(7)(B)(ii); Bell use by television broadcasters, the FCC, in South Mobility, Inc. v. Gwinnett County, et al., the early 1980s, reallocated these frequen- planning authorities act on such applica- 944 F.Supp 923 (N.D. Ga. 1996); United States tions within a reasonable period of time. Cellular Corp. v. Des Moines, supra; Illinois RSA cies to be used for cellular service. Courts determine reasonableness with No. 3, Inc. v. County of Peoria, 963 F. Supp. 732 Recent technological advances have reference to the type of application (C.D. Ill. Apr. 28, 1997); Sprint Spectrum v. Jef- reduced the price of cellular services and involved. For example, the time typically ferson County, supra; Seattle SMSA Limited Part- have made more sophisticated options — nership, et al. v. San Juan County, No. C96-15212 such as voice mail and alphanumeric mes- needed to rule on a conditional use (W.D. Wash. Apr. 11, 1997). application for a personal wireless ser- sages — available. Nonetheless, cellular service constitutes a natural evolution of vice facility should be no different than SUMMING UP: an older method of communication rather the time needed to rule on any other con- The thrust of Section 704 of the than a dramatic shift in technology. Since ditional use application. Telecommunications Act is on fostering the 1920s, first broadcasters, then two- In the first months after enactment of the growth of cellular and PCS technolo- way radio and paging companies, have the TCA, the delays that Congress feared gies. To help achieve this, the TCA bars been constructing towers on which they did materialize in some communities. local regulations that have the effect of have mounted antennas that emit radio Because of these delays (and concerns prohibiting the siting of cellular and PCS waves. Most of those broadcast towers are that remanding an overturned denial to a towers, or discriminating among service far taller and emit signals of much greater local zoning board would simply result providers. Given the continuing surge in power than those used at cell sites. in more delays or another denial), courts demand for personal wireless services have issued writs of mandamus, com- and the corresponding increase in local pelling boards to issue permits as soon as permit applications for personal wireless possible. Very recently, a court has invali- service facilities, it behooves local zoning dated a moratorium that prevented per- and planning officials to follow these sonal wireless providers from filing any developments closely.

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9 WIRELESS TOWERS A Wireless Miscellany

Editor’s Note: Thanks to those Unlike cellular services, lular industry petition, it hint- full antenna capacity, but in no of you who provided us with infor- PCS providers are issued a ed at its position by “tentative- event fewer than two addition- mation about your community’s blanket license by the Com- ly concluding” in a July 28, al antennas from two addition- approach to dealing with wireless mission for their entire geo- 1997 Public Notice (FCC 97- al providers.” The owner/ towers. Much of the material in graphic area, and are not 264) that “moratoria of a fixed operator is also required “to this “Miscellany” comes from your required to individually license duration, which permit local sign a statement that all dis- input. Our apologies if you sent in with the FCC each transmitter officials the opportunity to putes with future providers information we were unable to site within the market area. study and develop a process concerning co-location and the include. Another distinction is that the for handling siting requests terms and conditions of co- FCC uses different geographic would be a legitimate exercise location shall be submitted to Cellular Growth market areas for licensing pur- of local land use authority ... commercial arbitration ... .” Booms poses. Instead of using MSAs moratoria of a relatively short Given the City’s strong prefer- and RSAs as in the case of cel- and fixed duration may serve ence for co-location, tower Telecommunications com- lular, for broadband PCS the the public interest.” heights up to 199 feet are panies continue to report steep Commission adopted Rand The documents cited above allowed (in order to accommo- growth in wireless customers. McNally’s definitions to divide are available on the FCC’s Web date the extra height usually During 1995, Ameritech saw the United States and its Pos- site: http://www.fcc.gov/wtb/ needed for locating additional its number of cellular cus- sessions and Territories into 51 — which is also an excellent antennas on a tower). tomers rise 45.6 percent to major trading areas (MTA) and place to keep up-to-date on Daly City, California’s, new almost 1.9 million. Bell 493 basic trading areas (BTA). FCC policies and rulings. wireless communications ordi- Atlantic NYNEX Mobile nance similarly encourages co- reported a 43.4 percent Moratoria Co-Location location. When applying for a increase in customers over the permit, “the applicant shall same period. The BellSouth The FCC is currently con- Co-location (sometimes specifically state the reasons Corporation saw its revenues sidering a petition filed by the spelled “collocation”) is when for not co-locating on any of from wireless communications Cellular Telecommunications more than one antenna or the existing monopoles and increase nearly 70 percent Industry seeking to prohibit all transmitter is located on a sin- lattice towers within a 3,000 between the end of 1993 and local zoning moratoria affect- gle tower. The principal bene- foot radius. ... the applicant 1995, compared to a 13 per- ing the siting of wireless fit from co-location is that may also be asked to provide a cent increase from its overall telecommunications facilities. fewer towers are needed to letter from the telecommunica- operations. The FCC’s Local and State serve a given area. This Government Advisory Com- reduces the overall visual tions carrier owning or operat- Personal mittee has opposed this impact of towers on a commu- ing the existing facility stating Communications request noting that: “Moratoria nity. Co-location, however, can reasons for not permitting co- have permitted communities, necessitate taller towers in location.” The Daly City ordi- Services often in close consultation order to accommodate multi- nance also provides that “as a PCS stands for “personal with industry representatives, ple transmission devices. It condition of approval for all communications services,” a to modify out-of-date regula- can also raise tricky issues freestanding monopoles, all method of communication tions and facilitate the place- involving “good faith” negotia- telecommunications carriers similar to cellular. One of the ment of facilities. In many tions between the company proposing a monopole shall attractions of PCS is that it communities, the adoption of owning the tower and poten- provide a written commitment provides higher quality recep- a moratorium has been fol- tial competitors seeking to to the Director [of Economic tion and allows for the trans- lowed by the adoption of clear share space. & Community Development] mission of data, as well as siting policies and procedures Co-location has become a that they shall allow other voice (though cellular that properly balance local favored policy in many com- wireless carriers to co-locate providers are developing com- safety and aesthetic concerns munities and regions. For antennas on the monopoles parable capabilities). PCS uses with the desire of many local example, the City of Solon, where technically and eco- higher frequencies than cellu- residents to have access to reli- Ohio’s ordinance provides that nomically feasible.” lar, which results in PCS sig- able personal wireless “as a condition of issuing a In Vermont, the Windham nals traveling shorter distances services.” Advisory Recommen- permit to construct or operate Regional Plan includes a policy than cellular signals. For this dation Number 4 (June 27, a tower in the City, the to “discourage the develop- reason, a typical PCS system 1997). owner/operator of the tower is ment of new sites for transmis- will require more sites than a While the FCC has not (as required to allow co-location sion and receiving stations in typical cellular system. of October 1) ruled on the cel- until said tower has reached favor of utilizing existing

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10 facilities.” This policy was recently applied by the state Environmental Board in deny- ing a land use permit for a 110 foot communications tower. The Environmental Board con- cluded that the applicant failed to adequately identify and assess existing facilities and failed to negotiate in good faith with the owners of other existing facilities. Gary Savoie, #2W0991-EB (Aug. 27, 1997) [Note: The Board’s decision contains an interesting analysis of some of the issues that can come up in determining whether an applicant has been negotiating in “good faith” to existing buildings, by provid- ly or wholly conceals the like Date Palm or Lodge Pine co-locate on another carrier’s ing a simpler review process antenna or minimizes its trees. Similarly, Stealth Net- tower]. for those applications. appearance in relation to the work Technologies of North The City of Overland Park, According to city planner principal use of the stealth Charleston, South Carolina, Kansas, communications tow- Bonnie Johnson: “The plan structure.” designs and installs antenna ers ordinance contains several adopted by the City Council Planning Director Kathi sites concealed in bell towers, provisions designed to encour- takes the approach of being Ingrish notes that “Duke false chimneys, and other cus- age co-location. One limits ini- flexible on location but strict Power Company has begun tom-made structures. tial special use permits for on design. The ordinance offering their transmission towers to five years. “At the allows wireless communica- towers as antenna locations, so Visual Analysis time of renewal the applicant tion facilities in any zoning we specifically wrote in shall demonstrate to the satis- As Ben Campanelli suggests district as long as it fits its sur- allowances to exceed height faction of the City that a good- in his article in this issue (see roundings. The hope is that by limits when on existing faith effort has been made to page 5), planners can require being lenient on location and ‘stealth’ structures.” Ingrish cooperate with other providers tower applicants to provide a creating a relatively simple also observes that “for to establish co-location at the visual analysis or simulation of approval process — for exam- Matthews, what I see as the tower site.” The ordinance what the tower will look like ple, antennas placed on exist- ‘saving grace’ is the local defines “good-faith effort” as in its surroundings. A number ing buildings can be approved power company’s participation including “timely response to of communities have incorpo- administratively — telecom- in the communications game. co-location inquiries from rated this type of requirement munication providers will They are marketing themselves other providers and sharing of into their telecommunications choose the path of least resis- as a host for antennas. Since technical information to evalu- tower ordinances. tance which are camouflaged there are four transmission ate the feasibility of establish- The City of Overland Park, facilities or roof tops in com- lines running out from a cen- ing co-location.” Kansas, for example, requires mercial areas.” tral point, and their towers are that a special use permit appli- Camouflaging Along similar lines, the much taller than anything else cation for a communications Towers Town of Matthews, North around, they provide good tower include, among other Carolina, seeks to encourage opportunities for antenna loca- things, “a photo simulation of Another policy encouraged “stealth” towers by allowing tions without adding new the proposed facility from in many new telecommunica- them within residential dis- spikes into the horizon.” effected residential properties tions tower ordinances is to tricts and by authorizing A number of companies and public rights-of-way as camouflage towers and related increased heights for stealth have already recognized that coordinated with the Planning equipment, or make them as towers in other districts. The there is a rapidly growing mar- staff.” Similarly, Daly City, Cal- inconspicuous as possible. Matthews ordinance defines ket for camouflaged towers. ifornia’s ordinance provides for The City of Liberty, Mis- “stealth or concealed struc- The Larson Company, based in “visual impact demonstrations souri’s wireless communica- ture” as “the support structure Tucson, Arizona, has built on using photo-simulations ... tions ordinance encourages the for a communications system its specialty of fabricating arti- elevations or other visual or use of “alternative tower struc- which is primarily for another ficial landscapes for theme graphic illustrations to deter- tures” (such as grain silos, util- principal use or accessory to parks and zoos by developing mine potential visual impact.” ity poles, clock towers, and the principal use on the lot ways of disguising poles so steeples), as well as other where it is located, and partial- that they look, for example, continued on page 12

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11 Visual Analysis involving the construction of mental impacts, community of the proposed tower. If the continued from page 11 new freestanding towers. character, and other factors. FCC, after review of the com- Sonoma, California’s new Claremont, California, To assist wireless providers, ments, makes a finding of “no wireless ordinance requires planners note that this the Commission has integrated significant impact,” the project that applicants “submit a visu- approach “makes it easy to into its geographic information has cleared NEPA scrutiny. al analysis, which may include obtain permits for the types of system (GIS) a Cape-wide More information on FCC envi- photo montage, field mock up telecommunications facilities inventory of existing buildings ronmental review and other sit- or other techniques, which that the community prefers, and structures which may be ing questions is available in identifies the potential visual such as facade mounted or suitable for antenna installa- FCC Fact Sheet #2, National impacts of the proposed facili- concealed roof mounted tions. The towns have also Wireless Facilities Siting Poli- ty. Consideration shall be antennas, and makes it more provided information on areas cies. This 39-page document is given to views from public difficult and expensive to in which wireless facilities available by fax: 202-418-2830 areas as well as from private obtain approvals for the types would be both appropriate and (reference document #6508), residences. The analysis shall of facilities that the communi- inappropriate. This has been and on the FCC’s Web site: assess the cumulative impacts ty wants to discourage, such as incorporated into the GIS http://www.fcc.gov/state&local/ of the proposed facility and freestanding monopoles.” maps (along with water other existing and foreseeable The Cape Cod Commis- resource and conservation Municipal Profits telecommunication facilities in sion, in a model bylaw (i.e., areas, state and federal lands, from Towers the area, and shall identify and ordinance) prepared for its and electric transmission cor- include all feasible mitigation member towns, employs a rdiors). The Commission is If you can't stop towers measures consistent with the tiered review process. Accord- currently in the process of from coming in, why not at technological requirements of ing to the Commission: “New identifying scenic viewsheds to least profit from them? That's the proposed telecommunica- facilities which locate on an include on the maps as well. the approach Gastonia, North tion service. All costs for the existing tower, monopole, Carolina (population 62,000) visual analysis, and applicable electric utility tower or water Environmental and some other communities administrative costs, shall be tower require no special per- Review have taken by encouraging towers to be located on munic- borne by the applicant.” mit under the bylaw, as long as In implementing the ipal property, such as parks, they do not increase the height National Environmental Policy golf courses, and school fields. “Tiered” Review of the structure and as long as Act (NEPA), the Federal Com- According to Gastonia A number of communities they gain site plan approval. munications Commission planning director Jack Kiser, that have recently adopted The second tier proposed in requires applicants to prepare "the city actively markets telecommunications tower the bylaw would allow new “environmental assessments” ordinances have made use of ground or building mounts for towers that are proposed to municipal property to the cel- “tiered” review. This approach anywhere in town by special be located in certain environ- lular industry as site loca- seeks to encourage new anten- permit, provided they meet mentally sensitive areas, tions." The approval process is nas to be located on existing standards for height, camou- including: officially designated much simpler when a site is buildings (or co-located on flage, setback, safety and wildlife preserves or wilder- proposed on municipal land. existing towers) by providing design. The third tier is for ness areas; 100-year flood- For example, no public hear- for quick approval, often facilities which exceed the plains; situations which may ings are required. Kiser reports administratively by staff, in bylaws height restrictions. affect threatened or endan- that Gastonia can earn in those cases. Closer scrutiny Such facilities would be gered species or critical habi- excess of $15,000 per year in is given to applica- allowed by special permit only tats; or situations which may lease payments for a tower tions in a designated overlay district cause significant change in located on city property. More- which the town has decided surface features, such as wet- over, if a second cellular can accommodate the new land fills, deforestation or provider co-locates on a tower structures.” water diversion. In addition, (as the city encourages), the In addition, the Cape an environmental assessment city takes in 50 percent of the Cod Commission itself must be prepared when sites payment that provider makes reviews most new listed or eligible for listing in to the tower owner. All told, tower proposals as the National Register of His- Gastonia will earn $80,000 “developments of toric Places may be affected. next year from the five towers regional impact.” The fact that an environ- (four of which have co-loca- The Commis- mental assessment is required tors) currently on city-owned sion has adopt- does not necessarily mean the land. These towers will yield ed criteria for tower cannot be built. It does, $3 million over a 25 year peri- evaluating however, call for public notice od, not counting taxes, if they towers based and opportunity to comment stay that long. on environ- on the environmental impacts The city has also benefited

PLANNING COMMISSIONERS JOURNAL / NUMBER 28 / FALL 1997

12 by being able to Some If elected and appointed offi- co-locate, at no Observations cials are getting tired of this, and cost, all munici- are approving most tower pal antennas by Robert Baldwin requests anyway, it probably (emergency, non- Municipal tower regulations can makes sense to restructure the emergency, and generally be divided into the fol- regulations to allow towers by mobile data termi- lowing broad categories: right in certain locations, but nals) on the towers 1. Regulations that require prohibit them in other areas. For being built. every request for a tower to go example, a city might allow, by Kiser believes that res- through a zoning process of right, communications towers up idents are not as upset when some sort, either to obtain a spe- to 120 feet in height in all indus- they see that the city will cial exception, conditional use trial zoning districts, as long as financially benefit from tow- permit, or some other type of the towers are at least 300 feet ers that would likely be built commission approval; from the nearest residential zon- may in any event. This is especial- 2. Regulations that allow remove ing district. ly the case if some of the rev- towers by right in some districts, such antenna or This type of approach works enues can be earmarked to provided that certain develop- tower at the owner’s expense.” well provided that the areas improve the public area with- ment standards, such as setbacks where towers are permitted are in which the tower is located. Public Health from residential districts, are distributed across the city. City Kiser also notes that the met, but prohibit towers in resi- officials do not have to hear and telecommunications compa- Impacts dential districts; decide every tower request, resi- nies have supported the city's [From a report published by the 3. Regulations that through dential areas can be protected policy, since it meets their top Vermont Natural Resources the use of such stringent loca- from new towers in close prox- priority of getting their facili- Council] tional criteria on the placement imity, and communications com- ties installed as quickly as “The electromagnetic spec- of towers essentially prohibit panies will know in advance possible. trum consists of both ionizing them; or where their towers can go. Abandoned and non-ionizing radiation. 4. Regulations that are silent I have also worked in com- Towers Ionizing forms of radiation as to tower locations or exempt munities with ordinances so include ultraviolet rays, X- and towers from the height regula- severe that towers are essentially While right now it’s boom Gamma rays, and Cosmic rays tions established in the zoning prohibited. Since the Telecom- times in the wireless commu- from the sun. Their harmful regulations. munications Act now provides nications industry, it’s always effects, particularly their Most of the municipalities that local regulations cannot hard to predict where tech- potential to cause cancer, are we work in require that every “prohibit or have the effect of nology will be ten or twenty well known. ... tower be approved on a case-by- prohibiting the provision of per- years from now. As a result, Radiofrequency fields, case basis. The regulations often sonal wireless services” these many communities with new including microwaves, are do not specifically address wire- ordinances may run afoul of the wireless tower ordinances within the non-ionizing spec- less communications towers, but federal law. have wisely included provi- trum, but that doesn’t mean the cities have determined that There are also communities sions making the tower they’re completely safe. Their these types of towers fall under whose zoning ordinances are owner responsible for remov- known danger is that under the generic land use for radio, totally silent on towers. Chances ing the structure if it stops some circumstances — for television, or microwave towers are, if an ordinance has not been being used for communica- example, at the transmission and, as such, require a specific revised in the last ten years, tow- tions purposes. point for FM radio signals — use permit or are classified as The Overland Park, they can produce enough ener- ers are either not mentioned or conditional uses. Kansas, communications gy to cause heating in conduc- exempted with a passage that In my experience, cities that tower ordinance is typical in tive materials, including reads “height limits do not apply providing that “any antenna human tissue. The heating, or require every tower to be heard to radio or television antennas.” or tower that is not operated “thermal,” effects of high-fre- and approved by a board or com- If your ordinance falls into this for a continuous period of quency, non-ionizing forms of mission tend to have the hardest category, it is a good idea to fix it. time with towers. This is espe- twelve months shall be con- radiation are understood; to Robert Baldwin is a planner cially the case in larger commu- sidered abandoned, and the prevent them, owners of with the Dallas, Texas, law firm of nities, where a board or owner of such antenna or broadcast towers are required Munsch Hardt Kopf Harr & Dinan. commission may be facing sever- tower shall remove the same to erect fencing and/or post He has been involved in the siting of within ninety days of a al tower requests a month. I have signs to keep the public at a a number of wireless towers. receipt of notice ... If such distance from the facilities. been to a meeting where the antenna or tower is not Where the opinion of sci- board of adjustment heard 15 removed within said ninety ence is divided, however, is in separate tower requests! days, the governing authority continued on page 14

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13 Public Health Impacts the public at a distance. And The report is available for $10 of service. continued from page 13 the new NCRP standards ... from the Vermont Natural It is also worthwhile to calculate only for thermal Resources Council, 9 Bailey keep in mind that the antenna regard to exposure to non- exposure. Questions about Ave., Montpelier, VT 05602; structures required to deploy thermal (or athermal) energy long-term, low-level exposure 802-223-2328; e-mail: personal wireless services can waves, which do not heat body remain unaddressed. ... VNRC@plainfield.bypass.com be used for other purposes that tissue. ... While proof of dan- Concern about the health could benefit your community. ger from exposure to non-ther- Additional information about effects of emissions from a cel- For example, a community mal RFR [radiofrequency the health impacts of exposure to lular tower is not a permissible that has a long-term plan to radiation] thus far has electro-magnetic fields is avail- basis for making local zoning improve its public safety com- remained elusive, theories of able at the National Institute of decisions if the tower is in munications may be able to negative effects include that Environmental Health Sciences compliance with FCC stan- expedite that process by team- such exposure indirectly dam- Web site: http://www.niehs. dards; it is, however, a permis- ing with personal wireless ser- ages DNA, and, perhaps, the nih.gov/emfrapid/html/other.htm sible basis for regulating radio vice providers to construct electrical transmissions and television towers, and new sites that could be used involved in the nervous sys- other facilities that do not fall Wireless Benefits for deployment of both public tem. ... The Cancer Journal within the definition of ‘per- The Federal Communica- safety and personal wireless (Vol. 8, No. 5) provides a cau- sonal wireless services.’ More- tions Commission on the ben- communications. Further- tious voice, stating: ‘Epidemi- over, local authorities may efits of wireless technology: more, wireless telecommunica- ology has seen a large number regulate ‘personal wireless ser- “Personal wireless services tions and data services play an of examples where health haz- vice facilities’ to the extent are not just car phones for increasing (and increasingly ards were initially described they do not comply with the businesses. Due to technologi- sophisticated) role in provid- with unconvincing and some- FCC guidelines. ... But first it cal innovation and the contin- ing healthcare services. Per- times inadequate experiments must be determined that they uing availability of additional sonal wireless service which demonstrated a weak are out of compliance. spectrum, PCS and cellular providers may also serve as a association with a given envi- Spot inspections by the providers are offering light- lower-cost source of advanced ronmental influence. Such FCC are not routine, and long weight portable phones at telecommunications capabili- associations were found periods of time separate a facil- increasingly affordable prices ties for schools and libraries.” between cholera and drinking ity’s relicensing procedure, that enable consumers to make From FCC Fact Sheet #2. Infor- water containing fecal contam- when such an evaluation and accept calls anywhere and mation on how to obtain this inants, between smoking and might be done. Thus it would at anytime. It is also anticipat- document is available at the end lung cancer or between expo- seem an appropriate invest- ed that providers of personal of the “Environmental Review” sure to vinyl chloride and cer- ment for Vermont’s state gov- wireless services will offer note on page 12. tain forms of liver cancer. All ernment ... to see to it that wireless computer networking these associations were highly municipalities were equipped and wireless Internet access. questioned in the past and are and enabled to periodically Many PCS providers also now well recognized.’ ... determine the compliance sta- intend to offer a service that On August 1, 1996, tus of the towers and transmis- will eventually compete direct- responding to the Congres- sion facilities within their ly with residential local sional mandate as enunciated borders.” exchange and exchange access in the TCA [Telecommunica- Reprinted with permission from services. The inherent flexibili- tions Act], the FCC adopted Telecommunications and ty of wireless services makes it new health and safety regula- Broadcasting Transmission possible to introduce new ser- tions for exposure. These are Facilities in Vermont (August vice offerings on a dynamic based on standards established 1997, Vermont Natural basis as consumer demands by the National Council on Resources Council). grow and change. Radiation Protection and Mea- Wireless services are also surement, a congressionally Editor’s Note: While this just- integral to many businesses chartered organization. ... released report primarily focuses that rely on mobility of their They are scheduled to become on wireless communications operations to provide goods effective September 1, 1997. within Vermont’s regulatory con- and services to consumers. It is important to note that text, it does include material Communicating by a wireless the FCC addresses health con- which may be of interest to read- network enables companies cerns by controlling for expo- ers outside of Vermont — in in various businesses, from sure — not emissions. A particular, two chapters dealing, car rentals to package delivery, licensee might simply be respectively, with radiofrequency to operate in a more efficient required to post signs or erect interference and public health manner, and to ultimately BEN CAMPANELLI fences around a microwave impacts (from which the materi- lower the cost to the consumer 150’ Lattice tower with microwave transmission facility to keep al in this sidebar was excerpted) while improving the quality dishes.

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14 On the Horizon the broadcast antenna facility Wireless has been determined by the The broadcast industry this Miscellany Commission to comply with August filed a petition with the its applicable regulations Contacts: FCC to drastically curtail state and/or policies concerning and local review of the siting Cape Cod Commission interference. ... of DTV (digital television) Gay Wells at: Further, the rule would pre- towers — the “next genera- 508-362-3828 (phone); empt all state and local land tion” of broadcast towers. 508-362-3136 (fax) use, building, and similar laws, According to the FCC’s rules or regulations that impair Claremont, California notice of rulemaking: “Peti- the ability of licensed broad- Lisa Prasse at: tioners state that the accelerat- casters to place, construct or 909-399-5486 (phone); ed DTV transition schedule modify their transmission 909-399-5366 (fax) [approved by the FCC] will facilities unless the promulgat- require extensive and concen- Daly City, California ing authority can demonstrate trated tower construction. Al Savay at: that the regulation is reason- They estimate that 66 percent 415-991-8033 (phone) able in relation to a clearly of existing television broad- defined and expressly stated Gastonia, North Carolina casters will require new or health or safety objective.” Jack Kiser at: upgraded towers to support The FCC’s notice of rule- 704-854-6652 (phone); DTV service, involving an esti- making goes on to state that: 704-864-9732 (fax) mated 1000 television towers. “To the extent that state and Liberty, Missouri Moreover, they state, as a local ordinances result in Bonnie Johnson at: result of the increased weight delays that make it impossible 816-792-6000 x3107 (phone) and windloading of DTV facili- for broadcasters to meet our ties and other tower con- Matthews, North Carolina construction schedule and straints, a number of FM Kathi Ingrish at: provide DTV service to the broadcast stations which have 704-847-4411 (phone); public, important Congres- collocated their FM antennas 704-845-1964 (fax) sional and FCC objectives on television towers will be regarding prompt availability Overland Park, Kansas forced to relocate to other of this service to the public… Leslie Karr at: existing towers or to construct would be frustrated. At the 913-895-6190 (phone); new transmission facilities. ... same time, we are sensitive to 913-895-5013 (fax) Petitioners propose a rule the rights of states and locali- which provides specific time Solon, Ohio. ties to protect the legitimate limits for state and local gov- Edward Suit at: interests of their citizens and ernment action in response to 330-399-8964 (phone) we do not seek to unnecessari- requests for approval of the ly infringe these rights. Sonoma, California. placement, construction or The Commission recog- Sandra Cleisz at: modification of broadcast 707-938-3743 (phone) nizes its obligation to ‘reach a transmission facilities ... [gen- fair accommodation between erally] requests would have to Vermont Environmental Board be acted upon within 45 days. federal and nonfederal inter- David Grayck at: Failure to act within these ests.’... Thus, it is incumbent 802-828-5444 (phone) upon the Commission not to time limits would cause the Windham Regional request to be deemed granted. ‘unduly interfere with the Commission, Vermont ... Petitioners would categori- legitimate affairs of local gov- Susan McMahon at: cally preempt regulations ernments when they do not 802-257-4547 (phone) based on the environmental or frustrate federal objectives.’ The Larson Company health effects of radio frequen- These include not only certain Scott Krenzer at: cy (“RF”) emissions to the health and safety regulations, 800-527-7668 extent a broadcast facility has which the Petitioners’ pro- been determined by the Com- posed rule recognizes, but also Stealth Network Technologies mission to comply with its the right of localities to main- Jim Haldeman at: regulations and policies con- tain their aesthetic qualities.” 800-755-0689. cerning emissions; interference More information on this rule- with other telecommunica- making is available at the FCC’s tions signals and consumer web site: electronics devices as long as http://www.fcc.gov/state&local/

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15