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• • • Chapter Seven 5. As long as wireless telecommunications facilities meet standards to be set by the FCC, a local governme~rt may not base arty decision Berrying a request to const~vct such facilities on the ground that radio frequeruy emissions from the facilities will be harmhrl to the emrironmerrt or health of residents. The Act gives the FCC, not local governments, the sole authority to determine what standards wireless facilities must meet to ensure that their radio frequency emissions do not harm humans or the environment. While local governments can require the facilities to comply with FCC emission standards, local governments may not adopt their own standards. This means that, as long as the facilities meet FCC emission standards, concerns about the effects of emissions from radio towers on the health of nearby residents is not a permissible reason for making zoning decisions about the placement of wireless telecommunications facilities. Telecommunications Providers? In a major victory for municipalities, the Act requires that a wireless telecommunications provider claiming that a city has violated any of four out of five conditions listed above must seek relief in a state or federal court, not at the FCC. The disappointed applicant may go to the FCC only if it claims that the municipality improperly based its decision on the harmful effects of radio frequency emissions from the proposed facilities. The FCC is also prevented from preempting local zoning requirements except for those relating to radio frequency emissions. Consistent with this restriction, the Act also requires the FCC to discontinue its pending rulemaking proceeding concerning preemption of local zoning requirements for cellular towers. Zoning Issues Relating to DBS and Television Broadcast Facilities The Act contains no comparable local zoning provisions dealing with the other type of communications facilities that might appear on your city's landscape (e.g., television broadcast antennas and satellite television dishes). This will probably seem odd to most cities, since television antennas and dishes may present precisely the same types of zoning concerns as wireless telecommunications facilities -they can affect neighborhood appearance and integrity. After all, zoning requirements tend to be directed at the physical size and appearance of facilities, not the particular services they are used to provide. The Act does, however, contain two provisions that both the television broadcast and DBS industries are likely to try to use to restrict municipal zoning authority over television antennas and dishes. The first provision gives the FCC exclusive jurisdiction over "direct-to-home satellite services" - in other words, DBS service. This essentially gives the FCC the same broad authority over DBS service that it has long had over television broadcast service. This may strengthen the FCC's hand in adopting rules concerning limitations on local zoning authority over satellite dishes. The second provision may be a bit more of an explicit threat to local governments. This provision requires the FCC - by August 1996 - to adopt rules that prohibit "restrictions" that impair a viewer's ability to receive television programming from over-the-air local television broadcast stations, DBS services, or "multichannel multipoint distribution services" ("MMDS"). The Act does not say what types of "restrictions" the FCC is supposed to prohibit. You should assume, however, that the broadcast and DBS industries will argue to the FCC that local zoning requirements concerning rooftop antennas and backyard satellite dishes are "restrictions" that the FCC should limit or prohibit. 29 Who Resowes Deputes Beirnreen Mutdapailties and Wireless