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Tile Tel~ommunications Act of 1996: What it Means to Loral Governments General Principle: Local Zoning Authority Preserved The Act makes clear that as long as local zoning requirements satisfy certain conditions, nothing in the entire Communications Act of 1934 will limit or affect zoning authority of local governments over the placement, construction, and modification of wireless telecommunications facilities. This principle is important because over the years, the FCC has attempted to exercise its general authority over wireless transmissions under the Communications Act of 1934 to limit or preempt local zoning authority. Until now, the 1934 Act contained no explicit limit on the FCC's authority over zoning. With this new principle, local governments for the first time will have a statutory basis in the Act to defend themselves against unwarranted federal intrusion into local zoning. Conditions to Local Zoning Requirements In order to take advantage of the Act's general principle of preserving local zoning authority, local government zoning decisions about wireless telecommunications facilities must • satisfy five conditions. Those conditions are: t . Local zoning requirements may not unreasonably discriminate among wireless telecommmunications providers that compete against one another. The legislative history makes clear that local governments do not necessarily have to treat competitive providers exactly the same if their proposed facilities present different zoning concerns. Congress intended to give local governments some flexibility in this area. It recognized, for example, that a proposed 50-foot tower in a residential district presents different concerns than a 50-foot tower in a commercial district, even if the two towers are going to offer services that compete with one another. 2. Local zoning requiremers may not prohibit or have the effect of prohibiting the provision of wireless telecommunications service. :7 This is intended to prevent local governments from imposing outright bans on wireless telecommunications facilities. It probably also prohibits moratoriums on accepting applications, at least any moratorium that is of indefinite length. At the same time, local governments should have the ability to limit the number and placement of facilities as long as those limits do not have the effect of precluding a wireless telecommunications provider's ability to offer service. 3. A local government must act on a request for permission to place or conshuct wireless telecommunications facilities within a r~sonable period of time. The time taken to act on an application will be considered reasonable as long as it is no longer than the time the local government usually takes to act on the other requests (say, for zoning variances) of comparable magnitude that have nothing to do with telecommunications facilities. And Congress emphasized that the Act does not require local governments to give preferential treatment to zoning requests involving telecommunications facilities -such requests can wait their turn. As long as the request is not moved down the list, it does not have to be moved up the list. 4. Any city council or zoning board decL4ion derryirrg a request for perrdssion to install or censduct wireless telecommunications fadlides must be in writing and must be based on evidence in a written recent before the council or board. This requirement may necessitate a considerable change in practice for some city councils and zoning boards. It means that proceedings on a zoning application will need to be reduced to writing. This can be done by having the proceedings transcribed and by requiring the applicant, the city staff and any interested members of the public to reduce their comments and arguments into written submissions to the council or board. This requirement also means that city staff will need to make sure that any facts or arguments on which the council or board may rely on in denying a request are in fact included in the transcribed hearing or written filings submitted to the council or board before its decision is made. That decision also must be in writing and contain reasons that are consistent with the Act's requirements. Municipalities should carefully consult with their city attorneys to implement this requirement. 28