No Prohibition

Four distinguished and highly experienced members of the telecommunications bar define "effective prohibition" in such a way that it can be used to deny cell tower installation when the site has good voice and text coverage.

The gist of what they said is that you can ban a cell tower from a site once you have good voice and text converge. Cellular data is an unregulated service, so it cannot be used as a means of requiring cell towers. Since Montgomery County has good cell phone service, we can ban small cell towers from the public rights-of-way. The 2nd and 9th Circuit Courts of Appeal have thrown out the FCC created  “material inhibition” because the FCC cannot create new law. As you know, congress creates laws,  FCC translates laws into regulations. The courts decide if the regulations follow the law. The courts have already defined what Congress meant "effective prohibition". So, FCC's reinterpretation via a "material inhibition" is not valid.

It is common for attorneys working for a jurisdiction to misinterpret complex telecommunication law. I attended three hearing of the City of  Rockville Council where the city attorney gave advice that was counter to what is written Gaithersburg zoning. Gaithersburg has not been sued over their small cell zoning.

We put together a paper on what these lawyers said. I have extensively quoted what they said. See the attached document or follow the link.

What Is a Small Cell
(1) The facilities— 
(i) are mounted on structures 50 feet or less in height including their antennas …, or 
(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or 
(iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; 
(2) Each antenna associated with the deployment, excluding associated antenna equipment … is no more than three cubic feet in volume; 
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume… 
(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b).

FCC order summary: