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5 . The Telecommunications Act of 1996: What It Means to Local Governments General Principle: Local Zoning Authority Preserved precluding a wireless telecommunications provider's ability to offer service. The Act makes clear that as long as local zoning requirements satisfy certain conditions,nothing in the entire 3. A local government must act on a request for permission Communications Act of 1934 will limit or affect zoning to place or construct wireless telecommunications facilities authority of local governments over the placement, within a reasonable period of time. construction,and modification of wireless telecommunications facilities. This principle is important because over the years, The time taken to act on an application will be the FCC has attempted to exercise its general authority over considered reasonable as long as it is no longer than the wireless transmissions under the Communications Act of 1934 time the local government usually takes to act on the to limit or preempt local zoning authority. Until now,the other requests (say,for zoning variances) of comparable 1934 Act contained no explicit limit on the FCC's authority magnitude that have nothing to do with over zoning. With this new principle,local governments for telecommunications facilities. And Congress emphasized - the first time will have a statutory basis in the Act to defend that the Act does not require local governments to give themselves against unwarranted federal intrusion into local preferential treatment to zoning requests involving zoning. telecommunications facilities—such requests can wait their turn. As long as the request is not moved down the Conditions to Local Zoning Requirements • list, it does not have to be moved up the list. In order to take advantage of the Act's general principle of 4.Any city council or zoning board decision denying a preserving local zoning authority, local government zoning request for permission to install or construct wireless decisions about wireless telecommunications facilities must telecommunications facilities must be in writing and must be satisfy five conditions. Those conditions are: based on evidence in a written record before the council or board. 1. Local zoning requirements may not unreasonably • discriminate among wireless telecommunications providers This requirement may necessitate a considerable change in that compete against one another. practice for some city councils and zoning boards. It means that proceedings on a zoning application will need The legislative history makes clear that local governments to be reduced to writing. This can be done by having the do not necessarily have to treat competitive providers proceedings transcribed and by requiring the applicant,the exactly the same if their proposed facilities present city staff and any interested members of the public to different zoning concerns. Congress intended to give local reduce their comments and arguments into written governments some flexibility in this area. It recognized, submissions to the council or board. This requirement also for example, that a proposed 504oartowerirra-residential —means-that-city-staff-w ll-need-to-make-sure-that-any act district presents different concerns than a 50-foot tower in or arguments on which the council or board may rely on in a commercial district,even if the two towers are going to denying a request are in fact included in the transcribed offer services that compete with one another. hearing or written filings submitted to the council or board before its decision is made. That decision also must be in 2. Local zoning requirements may not prohibit or have the writing and contain reasons that are consistent with the effect of prohibiting the provision of wireless Act's requirements. Municipalities should carefully telecommunications service. consult with their city attorneys to implement this requirement. 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 1111 should have the ability to limit the number and placement of facilities as long as those limits do not have the effect of 28