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Reasonable Discrimination Allowed


Officials in other cities have erroneously claimed that their hands are tied and that Federal law leaves them powerless in regulating the location, number, and appearance of wireless facilities.  They have been tragically misinformed.  Your job is to educate, inform and enlighten them about the truth, including the fact that reasonable discrimination is allowed, see below.  Also make sure to come up with and have your cities propose "Alternative Locations" like other cities are already doing.


Local Governments Have Authority
to Regulate the Place and Manner of Wireless Communication Facilities

Recent Ninth Circuit Court and U.S. District Court decisions – citing the Telecommunications Act of 1996 (TCA)1 and California state laws – have acknowledged and affirmed the rights and authority of local governments to regulate the placement and appearance of wireless facilities.1 

The Telecommunications Act of 1996 preserves and acknowledges  the authority of local governments to regulate the location, construction and modification of cell towers in their communities:

SECTION. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.
(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:
(7) PRESERVATION OF LOCAL ZONING AUTHORITY-
(A) GENERAL AUTHORITY - Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.1

In addition, there have been two very recent U.S. District Court, NewPath Networks v City of Irvine and NewPath Networks v City of Davis, explaining how local authorities have rights that do not conflict with Federal and California State and regulations concerning wireless facility installations on poles in PROW, including authority to protect the public interests of its residents.   The decision for NewPath v the City of Davis was also posted on Attorney Jonathan Kramer’s website, so he should be able to answer your questions about this decision and its implications for local governments.2

In case there is further doubt, look to the explanation and assurances that Thomas Bliley, chairman of the Commerce Committee at the time of the TCA’s enactment.  In addressing the concerns of his fellow representatives that the proposed TCA would strip local governments of their regulatory powers, he stated for the record that:

Nothing is in this bill that prevents a locality, and I will do everything in conference to make sure this is absolutely clear, prevents a local subdivision from determining where a cellular pole should be located, but we do want to make sure that this technology is available across the country, that we do not allow a community to say we are not going to have any cellular pole in our locality. That is wrong. Nor are we going to say they can delay these people forever. But the location will be determined by the local governing body.

The second point you raise, about the charges for right-of-way, the councils, the supervisors and the mayor can make any charge they want provided they do not charge the cable company one fee and they charge a telephone company a lower fee for the same right-of-way. They should not discriminate, and that is all we say. Charge what you will, but make it equitable between the parties. Do not discriminate in favor of one or the other. 3

Reasonable Discrimination is Permitted

 Local governments are authorized to regulate wireless facilities with aesthetic and public safety standards, requirements and ordinances, as long as these requirements are not unreasonable, and do not violate the specific limitations of the TCA. 

 For example, in MetroPCS v the City and County of San Francisco, the Ninth Circuit Court of Appeals cited AT&T Wireless v City Council of Virginia Beach and other court cases that have affirmed that “some discrimination among providers of functionally equivalent services is allowed: Any discrimination need only be “reasonable.

 In AT&T Wireless PCS v City Council of Virginia Beach, at issue was a denial for a wireless facility proposed on church property in an area that was residential and had no commercial towers.  In this case, the U.S. Fourth Circuit Court of Appeals affirmed that a city can favor one competitor over another, as long as it does not unreasonably favor one over another, and then addressed what is “unreasonable” and “reasonable” (bold-faced emphasis below is this Report’s):

even assuming that the City Council discriminated, it did not do so "unreasonably," under any possible interpretation of that word as used in subsection (B)(i)(I). We begin by emphasizing the obvious point that the Act explicitly contemplates that some discrimination "among providers of functionally equivalent services" is allowed. Any discrimination need only be reasonable.

There is no evidence that the City Council had any intent to favor one company or form of service over another. In addition, the evidence shows that opposition to the application rested on traditional bases of zoning regulation: preserving the character of the neighborhood and avoiding aesthetic blight. If such behavior is unreasonable, then nearly every denial of an application such as this will violate the Act, an obviously absurd result.

Both the Fourth and Ninth Circuit Courts referred to the original Congressional Conference Report, or legislative history behind this particular limitation of the TCA, that supports this view:

It condemns decisions that "unreasonably favor one competitor over another" but emphasizes the conferees' intent that the discrimination clause "will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services."4

Most importantly, the Fourth Circuit Court also noted about the intent of the authors of the TCA of 1996:

For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.5

The Ninth Circuit Court of Appeals affirmed similarly, citing previous court cases:

see also Omnipoint, 331 F.3d at 395 (“Permitting the erection of a communications tower in a business district does not compel the [zoning board] to permit a similar tower at a later date in a residential district.”); Unity Township, 282 F.3d at 267 (discrimination claim “ ‘require[s] a showing that the other provider is similarly situated’ ”) (quoting Penn Township, 196 F.3d at 480 n.8). In fact, the sole district court case from the Ninth Circuit on this issue holds that a mere increase in the number of wireless antennas in a given area over time can justify differential treatment of providers. Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158, 1166 (S.D. Cal. 2000).

Other recent court decisions also affirm that requirements for installations in one part of town can differ for another part of town, and take into account aesthetics, design, and public safety; please see Sprint PCS v Palos Verdes, MetroPCS v San Francisco, and T-Mobile v City of Anacortes.6

In fact, there are many examples of recent local municipal decisions, resolutions and motions denying a cell tower due to aesthetics:

  • City Council for Temple City, CA, denies monopine cell tower proposed for church location in residential neighborhood: see attached Resolution 10-4664 (Attachment below), passed, approved and adopted March 16, 2010.  Source: City Clerk, Temple City, CA.

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1.  Telecommunications Act of 1996; Source: FCC, p 117, http://www.fcc.gov/Reports/tcom1996.pdf

2.  In NewPath v the City of Irvine, NewPath’s motion for a summary judgment was denied. You can read the decision, dated Dec 23, 2009, here: http://cityofdavis.org/cmo/pdfs/newpath/Preliminary-Injunction/02-23-10/Exhibit-A-to-Citys-Request-for-Judicial-Notice-%28Doc-24-2%29.pdf . You can read the City of Davis’ Feb. 24, 2010, response to NewPath’s complaint here: http://cityofdavis.org/cmo/pdfs/newpath/NewPath-v.-City-of-Davis/Answer-to-Complaint.pdf, and the March 19, 2010 U.S. District Court final Decision favoring the City of Davis here: http://www.telecomlawfirm.com/articles/pdf/newpath_v_davis_deny_prelim_inj_20100319.pdf

3.  141 Cong. Rec. H8274 (daily ed. Aug. 2, 1995), http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=H8274&dbname=1995_record

4, 5. AT&T Wireless PCS v City Council of Virginia Beach, Footnote No. 3, citing the House of Representatives Conference Report No. 104-458, 104th Cong., 2d. Session, ordered printed January 31, 1996, page 208. In addition, see MetroPCS v the City and County of San Francisco, which also cited this Conference Report explaining the Act’s nondiscrimination Clause. Read the original Conference Report on-line at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_reports&docid=f:hr458.104.pdf
6. See Sprint v Palos Verdes Estates (October 13, 2009), U.S. Court of Appeals for the Ninth Circuit, on-line at: http://www.ca9.uscourts.gov/datastore/opinions/2009/10/13/05-56106.pdf; MetroPCS v City and County of San Francisco (March 7, 2005) at Metropolitan News-Enterprise Online’s website: http://www.metnews.com/sos/0305/0316759.PDF and here: http://openjurist.org/400/f3d/715/metropcs-inc-v-city-and-county-of-san-francisco; T-Mobile v City of Anacortes (July 20, 2009), U.S. Court of Appeals for the Ninth Circuit, on-line at: http://www.ca9.uscourts.gov/datastore/opinions/2009/07/20/08-35493.pdf. For the other decision oft cited in this Section, AT&T Wireless PCS v City Council of the City of Virginia Beach (September 1, 1998), U.S. Fourth Circuit Court of Appeals, on-line at: http://pacer.ca4.uscourts.gov/opinion.pdf/972389.P.pdf In addition, another important and recent landmark decision is found in Sprint v County of San Diego; in that case, the U.S. Ninth Circuit Court of Appeals reversed its earlier decision on the matter of effective prohibition and decided that “actual” prohibition must be proven if a plaintiff claims effective prohibition; see Sprint v County of San Diego (September 10, 2008), Court of Appeals for Ninth Circuit, on-line at: http://www.ca9.uscourts.gov/datastore/opinions/2008/09/10/0556076.pdf


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