FACA SEMINAR 2011 FEDERAL AND STATE MANDATES, LOCAL HOME RULE - - - PDF document

FACA SEMINAR 2011

FEDERAL AND STATE MANDATES, LOCAL HOME RULE - PERSONAL WIRELESS SERVICE FACILITIES; LEASING LOCAL GOVERNMENT LAND FOR CELL SITES David W. Wagner, County Attorney Alachua County, Florida

• I. INTRODUCTION - PERSONAL WIRELESS SERVICES

Over the past 15 years, the wireless industry has convinced both Congress (The Telecommunications Act of 1996) and the Florida Legislature (PL 2003-182 and PL 2005-171) to adopt legislation that limits the authority of local governments to regulate the location of personal wireless facilities. Federal courts continue to decide cases, which highlight the ongoing struggle between federal regulatory authority and local government zoning authority. In addition, the wireless industry persuaded the Federal Communications Commission to adopt an order establishing timelines for proposing zoning applications (discussed in Section VI below). In Florida, local governments possess authority to regulate the location of wireless facilities unless the State legislature expressly or by implication preempts that authority. The Florida Legislature adopted legislation in 2003 (PL 2003-182, codified in Section 365.172, Florida Statutes) that limits local government authority to regulate the location of certain wireless

• facilities. The 2005 Florida Legislature adopted additional limitations on local government home

rule authority (PL 2005-171, codified, in Section 365.172, Florida Statutes). The purpose of this

• utline is to address a local government’s authority to regulate the deployment of personal

wireless facilities within the restrictions and limitations of Federal and State law. A. Growth of the “Tower” Building Industry One of the most significant trends has been the growth of the tower building industry. Wireless carriers prefer to have tower builders procure sites and site approvals for mounts (some people always refer to mounts as towers) for wireless facilities. Tower companies are in the vertical real estate business and are not licensed by the FCC to provide wireless

• services. Growth in the tower building industry is in direct response to the demand by
• ur citizens for ever more sophisticated wireless technology.

B. Potential Growth of the WiMAX technology Another significant trend has been the growth of WiMAX (Worldwide Interoperability for Microwave Access), a new wireless service technology. WiMAX is a broadband service provided by Sprint/Nextel, Comcast, and other companies. In contrast to Wi-Fi, where service is usually limited to a building or room, WiMAX allows for city or countywide coverage. WiMAX permits such widespread access by using the radio spectrum rather than copper wire line connections to transmit signals between digital

2

• devices. Through this method, WiMAX provides wireless access at greater distances and

higher broadband levels than Wi-Fi, which means that WiMAX may open wireless internet access to rural areas where constructing traditional hardwire is too expensive. WiMAX, despite its different approach to wireless internet access, requires antennas and towers similar to the cellular towers currently in use. In order to capitalize on the new WiMAX technology, wireless carriers require a network

• f new antennas or new tower leases. Companies prefer to add antennas on existing

towers than to build new towers themselves in order to avoid the cost of new site acquisition, tower construction and zoning approval. Wireless carriers may argue that the 47 U.S.C. 332(c) limitations on local government zoning authority discussed in para. II, below, apply to WiMAX siting, but it is unclear if these limitations apply because WiMAX does not clearly fit under the language of the Federal Telecommunications Act. See 47 U.S.C. 332(c) (the Telecommunication Act’s cell tower zoning restrictions apply to “‘personal wireless services’ mean[ing] commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services,” and WiMAX is a broadband radio service). Appellate courts and the FCC have not spoken about the applicability of federal limitations on local government authority to WiMAX cell facility siting. However, prudent local governments will comply with federal law to avoid potential lawsuits. C. “Wireless” Principles for Local Governments 1. Tower building companies are not within the scope of the Telecommunications Act of 1996; the limitations of the Act do not apply to tower applications (unless a personal wireless services provider is a co-applicant). 2. Personal wireless service antenna heights are coming down - normally by lowering the antenna location on an already existing tower in order to split cells to provide increased capacity to a provider’s wireless customers. 3. The demand for wireless sites will continue to increase. 4. A proliferation of shorter mounts may have less visible impact on a community than collocation of several antennas on a tall tower. 5. A local government’s quasi-judicial action must be supported by competent substantial evidence. Accurate photo simulations are especially effective in evaluating the visual impact of a proposed facility. 6. A personal wireless facility ordinance should include standards for evaluating personal wireless facility applications. An ordinance may be based on a wireless master plan (described in Section III of this outline). An ordinance and

3 subsequent site specific decisions must be consistent with the Comprehensive Plan. 7. A local government should include both local community and industry representatives in the process of developing a personal wireless facility

• rdinance.
• II. THE TELECOMMUNICATIONS ACT OF 1996 AND LOCAL ZONING AUTHORITY

This outline provides a summary of the case law applying the Telecommunications Act of 1996 (the “Act”) [47 U.S.C. 332(c)(7) (“section 332(c)(7)”)], and suggestions to assure that the record supporting each local land use decision complies with section 332(c)(7) and the requirement under Florida law that a quasi-judicial action be supported by competent substantial evidence. Section 332(a)(7)(c)(i) defines personal wireless services as commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. The definition includes analog and digital (800 MHz) cellular, broadband PCS (1850-1990 MHz) services and enhanced specialized mobile radio, and paging services. Today, wireless technology development is focused on building capacity to transmit data on 3G and 4G networks. Several federal appellate court decisions issued over the past few years have clarified the rights and obligations of wireless providers and local governments under section 332(c)(7). Understanding these rights and obligations is important to not only assure that your local government satisfies the requirements of section 332(c)(7), but also because the consequences for failing to comply may become significant – In 2000, one federal appeals court held that 42 U.S.C. 1983 remedies are available to a wireless provider that successfully establishes a violation

• f section 332(c)(7). AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322 (11th Cir.

2000). The U.S. Court of Appeals, Eleventh Circuit, subsequently vacated the opinion and dismissed the appeal because the District Court’s judgment was not final (all claims of the parties not addressed). AT&T Wireless PCS, Inc. vs. City of Atlanta, 223 F. 2d 1324 (11th Cir. 2000). The Third, Sixth, Seventh, and Ninth Circuit Courts recently addressed the same issue, with different results. The Third Circuit Court of Appeals held that the Telecommunications Act provides a comprehensive remedial scheme that “furnishes private judicial remedies” that include benefits and corresponding limitations, thereby precluding § 1983 action. Nextel Partners, Inc., v. Kingston Township, 286 F.3d 687, 694 (3d Cir. 2002)(holding that section 332 does not “create a right that can be asserted by § 1983 in lieu of its own remedial scheme). General remedial statutes, including § 1983, should not be seen as vehicles for available remedies when a federal statute already creates rights overlapped by existing remedial statutes. Prime Co Personal Communications, L.P. v. City of Mequon, 352 F.3d 1147, 1152 (7th Cir. 2003). The Court of Appeals, Ninth Circuit, on the other hand found that the Act’s provisions were procedural in nature and not remedial, thereby departing from the notion that Congress intended to foreclose § 1983 remedies, Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094, 1099 (9th Cir. 2004). Congress affirmed its intent to not supersede applicable law such as § 1983, by enacting § 601(c)(1) of the Act, which states that “This Act… shall not be construed to modify, impair, or

4 supersede Federal, state, or local law unless expressly provided in such Act…” Id. at 1101. The Court of Appeals 6th Circuit agreed with the 9th Circuit that the TCA remedial scheme was not comprehensive enough to foreclose a § 1983 remedy, State of Tennessee ex. Re. Wireless Income Properties v. City of Chattanooga, F. 3d (6th Cir. 2005). On March 22, 2005, the Supreme Court of the United States reversed the Ninth Circuit Court of Appeals’ decision in Abrams v. the City of Rancho Palos Verdes by holding that an individual may not enforce the TCA limitations on local zoning authority through an action under 42. U.S.C § 1983; City of Rancho Palos Verdes, California et. al. v. Abrams, 544 U.S. 113 (2005) 161 L.

• Ed. 2d 316 . The Supreme Court recognized that the TCA provides an express judicial remedy:

the expedited review of a claim filed within 30 days of the governmental action. Id at 327. The Supreme Court also noted that “Liability for attorney’s fees would have a particularly severe impact in the § 332(c)(7) context, making local governments liable for the (often substantial) legal expenses of large commercial interests for the misapplication of a complex and novel statutory scheme.” Id. at 328. A. The Purposes of the Act Section 332(c)(7) is a deliberate compromise between two competing goals of the Act - to facilitate nationally the growth of personal wireless services and to maintain substantial local control over the siting of wireless facilities. Town of Amherst v. Omnipoint Communications Enterprises, 173 F.3d 9, 13 (1st Cir. 1999); 360 Communications Co. v. Board of Supervisors of Albemarle County, 211 F.3d 79, 86 (4th Cir. 2000) (“While Congress sought to limit the ability of state and local governments to frustrate the Act’s national purpose of facilitating the growth of wireless telecommunications, Congress also intended to preserve state and local control over the siting of towers and other facilities that provide wireless services”). This compromise preserves a local government’s lawful exercise of its zoning authority, even in the face of claims that an individual zoning decision thwarts the Act’s goal of increased competition through the rapid deployment of the wireless infrastructure. See Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999). B. The Preservation of a Local Government’s Zoning Authority Congress left most of the substantive authority to approve the location of wireless facilities in the hands of state and local governments. Aegerter v. City of Delafield, 174 F.3d 886, 891 (7th Cir. 1999). Section 332(c)(7)(A) of the Act states: “Except as provided in this paragraph, nothing in this chapter 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 facilities.”

5 The Act’s preservation of local zoning authority over the placement of personal wireless facilities, while imposing some limitations on that authority, reflects Congress’ desire to assure the introduction of competitive wireless services while at the same time preserving local control over the physical facilities themselves. AT&T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 428-429 (4th Cir. 1998).1 Local land use policies and regulations almost always clash with a wireless provider’s plans to develop its infrastructure. Nevertheless, a local government’s zoning authority will prevail except in the most limited circumstances, provided that the limitations imposed on that authority by section 332(c)(7)(B) are not violated. See Amherst, 173 F.3d at 15 (“on one side are the opportunity for the carrier to save costs, pay more to the town, and reduce the number of towers; on the other are more costs, more towers, but possibly less offensive sites and somewhat shorter towers. . . [S]ubject to an outer limit, such choices are just what Congress has reserved to the town”); Sprint Spectrum v. Board of County Commissioners of Jefferson County, 59 F.Supp.2d 1101, 1110 (D.Colo. 1999). Because section 332(c)(7) does not affect or encroach upon the substantive standards to be applied under established principles of state and local law, Cellular Telephone Company v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999), a local government retains its authority to: 1. Establish standards for the approval or denial of an application; 2. Establish procedures for processing wireless applications; 3. Determine the appropriate height, location and bulk of wireless facilities.; 4. Allow wireless facilities, by special use permit, subject to suitable guidelines and safeguards; 5. Deny or approve applications for personal wireless service facilities if the local government’s decision is based on competent substantial evidence. Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993); and 6. Deny applications for personal wireless service facilities if the proposed uses are inconsistent with the comprehensive plan. Section 163.3194 , Florida Statutes. “The Act’s federal limitations on local home rule authority does not offer a single ‘cookie cutter’ solution for diverse local situations . . . Congress conceived that this course would produce (albeit at some cost and delay for the carriers) individual solutions best adapted to the needs and desires of particular communities.” Amherst, 173 F.3d at 24.

1 Local authorities should also consider evidence that their decision may violate section 332 (c)(7). See Nextel Communications of the Mid-Atlantic Inc., v. Town of Provincetown, 2003 U.S. Dist. LEXIS 10932,24 (D. Mass. 2003).

6 C. The Act’s Limitations on a Local Government’s Zoning Authority (personal wireless facilities) A local government’s exercise of its zoning authority is subject to five limitations, set forth in section 332(c)(7)(B). 1. The decision of a local government to deny a request must be in writing and supported by substantial evidence contained in a written record. Section 332(c)(7)(B)(iii) requires that a local government’s decision to deny a request must be in writing and supported by substantial evidence: Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. This test applies to the local government’s application of its zoning requirements. Amherst, 173 F.3d at 16; Omnipoint Corporation v. Zoning Hearing Board of Pine Grove Township, 181 F.3d 403, 408 (3rd Cir. 1999). Even though the phase “substantial evidence” is not defined in the TCA, the federal circuit courts of appeal agree that the TCA in this area does not “affect the substantive standards to be applied under established principles of state and local law,” Cellular Tel. Co. v. Town of Oyster Bay, 166 F. 3d 490, 494 (2d Cir. 1999). Preferred Sites, LLC v. Troup County, 296 F. 3d 1210, 1218 (11th Cir. 2002). Review under the substantial evidence standard is deferential such that Courts may not engage in their own fact-finding or supplant the local government’s reasonable

• determinations. Metro PCS v. City and County of the City of San Francisco, 400
• F. 3d 715 (9th Cir 2005).

a. The decision must be in writing. The requirement that a decision be in writing is easily satisfied. A letter stamped with the word “Denied,” or writing “Denied” on the wireless provider’s application satisfies the requirement. Virginia Beach, 155 F.3d at 429; Winston-Salem Zoning Board of Adjustment, 172 F.3d at 312. There is no need for a local government to issue a written rationale with factual and legal conclusions. Virginia Beach, 155 F.3d at 430; Winston- Salem Zoning Board of Adjustment, 172 F.3d at 312. Although the Act’s “written decision” is not required under Florida law, decisions rendered in written format provide for efficient review of quasi-judicial decisions. The Ninth Circuit Court of appeals recently applied this principle by requiring a local government to “issue a written denial separate from a written record which contains a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record

7 supporting those reasons.” Metro PCS v. City and County of San Francisco, 400 F. 3d 715 (3rd Cir. 2005). See New Par v. City of Saginaw, 301 F. 3d 390, 395 (6th Cir. 2002) and S.W. Bell Mobile Sys., Inc. v. Todd, 244 D. 3d 51, 59 (1st Cir. 2001). If a local government elects to adopt a more formal written opinion to support its decision, it need not be adopted at the time of the decision. Winston-Salem Zoning Board of Adjustment, 172 F.3d at 313 (further rejecting any assertion that such a practice is pretextual). Some courts do require local government authorities to provide written rationale when a denial is issued and this writing must “1) be separate from the written record, 2) describe the reasons for the denial, and 3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” Southwestern Bell Mobile Systems, Inc, v. Todd, 244 F.3d 51, 60 (2d Cir. 2001); New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2002). Other courts do not interpret section 332(c)(7)(B) to require that decisions contain written rationale. Sprint Spectrum L.P. v. The Parish of Plaquemines, 2003 U.S. Dist. Lexis 1210 (E.D. LA. 2003) citing Shelton

• v. City of College Station, 780 F.2d 475,480 (5th Cir. 1982).

b. The decision must be supported by substantial evidence (“competent substantial evidence” in Florida). A local government’s decision in a quasi-judicial proceeding must be based on “competent substantial evidence” in the record of the proceeding. Snyder, 627 So. 2d at 475. Florida Courts define competent substantial evidence as evidence a reasonable person would accept as adequate to support a particular conclusion. Lee County v. Sunbelt Equities, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993); DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The requirement for supporting evidence is equally applicable to permit conditions. In Jesus Fellowship, Inc., v. Miami Dade County, 752 So. 2d 708 (Fla. 3d DCA 2000), the Third DCA quashed a condition placed on a special exception, stating: [n]owhere in the hearing record does there appear any evidence relating to the restriction to grades K-6 and to 150 students. After the evidentiary hearing closed, the restriction appeared, without a warning of its impending arrival, as a “suggestion” by the objectors’ attorney.” Id. at 771. It has also been held that argument of counsel is not competent substantial evidence. National Advertising Co. v. Broward County, 491 So. 2d 1262 (Fla. 4th DCA 1986). Under federal cases implementing the “Act,” substantial evidence is also relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Virginia Beach, 155 F.3d at 430; Albemarle County, 211 F.3d at 83. The test is deferential to the local government’s decision. Oyster Bay, 166 F.3d at 494. The plaintiff bears the burden of proving

8 that the local government’s decision was not supported by substantial

• evidence. See Voice Stream Minneapolis Inc. v. St. Croix County, 342 F.3d

818,831 (7th Cir. 2003) citing American Tower LLP v. City of Huntsville, 295 F.3d 1203,1207 (11th Cir. 2002); Todd, 244 F.3d at 63. A decision is supported by substantial evidence if there is more than a mere scintilla of relevant evidence, even though it may be less than a

• preponderance. Virginia Beach, 155 F.3d at 430. The substantial evidence

standard must be applied using common sense standards of

• reasonableness. El Cajon, 83 F.Supp.2d at 1164. A court is not bound “to

accept as substantial evidence impossible, incredible, unfeasible, or implausible testimony, even if it was not refuted.” Id. Though courts require that the adverse action taken by local authorities meet the substantial evidence standard, they do not require that each reason given for the adverse action meet this standard. U.S. Cellular Corp.

• v. City of Witchita Falls, Texas, 364 F. 3d 250, 259 (5th Cir. 2004).

Further, substantial evidence review does not require that arguments or statements made by local authorities or their constituents be precise as long as their ultimate decision is supported by reasonable evidence. Id. The reviewing court neither reweighs the local government’s decision, nor substitutes its decision for the local government’s. Virginia Beach, 155 F. 3d at 430. Courts are not free to substitute their judgment for that of the local government’s governing board, even if they would decide the

• riginal matter differently. Virginia Beach, 155 F. 3d at 430; Albemarle

County, 211 F. 3d at 84. See also Florida Power & Light v. City of Dania, 761 So. 2d 1089 (Fla. 2000). Whether a local government’s decision is supported by substantial evidence is determined within the framework of applicable land use policies and regulations. Thus, evidence relevant to a personal wireless facility must be evaluated within the context of applicable policies of the comprehensive plan and regulations in the zoning ordinance (including, for example, the criteria for a special use permit). In general, lay testimony on technical issues such as whether a project will result in increased traffic congestion or increased noise, is not competent

• evidence. City of Apopka v Orange County, 299 So. 2d 657 (Fla. 4th DCA

1974). As the Third DCA recently held in Jesus Fellowship, Inc., v. Miami Dade County, 752 So. 2d 708 (Fla. 3d DCA 2000), “The first witness, an engineer, complained that there would be more traffic on the neighborhood streets, but quickly announced that he was not testifying as an expert. Where technical expertise is required, lay opinion testimony is not valid evidence upon which a special exception determination can be

9 based in whole or in part.” See Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA 1990). Courts have recognized, however, that members of the public may have technical training, education, or experience to allow them to render opinion testimony. City of Ft. Lauderdale v. Multidyne Medical Waste Management, 567 So. 2d 955 (Fla. 4th DCA 1990) (lay testimony of a veterinarian who claimed to have sufficient expertise to testify on dangers of proposed facility, and written

• pinion from professor who was an expert on air pollution).

Fact-based testimony of third parties (as opposed to general statements of concern or opposition) may constitute competent substantial evidence: Under the correct legal standard, citizen testimony in a zoning matter is perfectly admissible and constitutes substantial competent evidence, so long as it is fact-based. See also Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041, 1042 (Fla. 3d DCA 1980). Mere generalized statements of opposition are to be disregarded, but fact- based testimony is not. A quasi-judicial decision cannot be based on generalized statements of opposition, or concern. However, lay witnesses can provide factual testimony that would support a decision. Grefkowicz v. Dade County, 389

• So. 2d 1041 (Fla. 3d DCA 1980). Metropolitan Dade

County v. Blumenthal, 675 So. 2d 598, 607 (Fla. 3d DCA 1995) (J. Cope dissenting, adopted as the opinion of the court on rehearing en banc Feb. 21, 1996). “Fact based testimony” of neighbors includes their testimony regarding aesthetics and compatibility of a proposed project. In Metropolitan Dade County v. Section 11 Property Corp., 719 So. 2d 1204 (Fla. 3d DCA 1998), the Third DCA reviewed a case in which the county commission denied a special exception as compatible with surrounding areas, but neighbors testified at the hearing that the facility would increase traffic noise and decrease property values, and would not be aesthetically

• pleasing. The County Commission denied the special exception based on
• incompatibility. On certiorari review, the circuit court held that the

County Commission’s finding of incompatibility was not supported by competent evidence, as the neighbors’ testimony was merely opinion. The third DCA quashed the circuit court’s writ because the commission can properly consider aesthetics, the neighbors’ testimony was fact-based, and the testimony coupled with the documentary evidence supported the denial. For those local governments that authorize wireless facilities by special use permit, the visibility of a wireless facility is critical for determining

10 whether a special use permit may be granted. When a local government considers its standards applicable to a special use permit, e.g., whether the proposed facility will be a substantial detriment to adjacent property, or whether the proposed facility will change the character of the district, it is not determining the aesthetics of the proposed facility per se. Rather, the local government is determining whether the facility, as proposed, will adversely affect the neighboring properties, the character of the district, and the public in general. A fear of a depreciation of property values is not considered substantial evidence if the determination is based on concerns relating to the effects of radio frequency emissions on health that is

• unsubstantiated. AT&T Wireless Services of Cal., LLC v. City of

Carlsbad, 308 F. Supp. 2d. 1148, 1159 (S.D. Cal. 2003). A blanket aesthetic objection will not be considered substantial evidence. Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 761 (11th Cir. 2005). 2 Lastly, more than a scintilla of evidence generally exists where the evidence is based on the adverse visual impact of the tower at the particular location at issue. See Voice Stream PCS I, LLC, v City of Hillsboro, 301 F. Supp.2d 1251, 1258 (D.OR. 2004). 2. A local government’s regulations may not prohibit or have the effect of prohibiting wireless service. Section 332(c)(7)(B)(i)(II) forbids regulations that prohibit or have the effect of prohibiting the provision of personal wireless services: The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services. As a general rule, the prohibition clause applies only to blanket prohibitions or general bans or policies, rather than individual zoning decisions. Virginia Beach, 155 F.3d at 428-429. If the rule was otherwise, local zoning authority would be effectively nullified by mandating approval of all, or nearly all, applications. Virginia Beach, 155 F. 3d at 429. It is important to note this subsection protects wireless users, not wireless service providers. Cellular Telephone Company v. Borough of Ho-Ho-Kus, 197 F. 3d 64 (3d Cir. 1999). However, some federal courts have addressed the prohibition limitation when reviewing site specific

2 Note that this case, unlike other cases, did not discuss land use criteria relevant to the application. See Perry

• M. Adair, Local Government Law Symposium: “Substantial evidence” under the Telecommunications Act of

1996 – A Closer look at Linet v. Wellington, 36 Stetson L. Rev. 437, 450 (2007) (arguing that this case expands local government power to deny a permit because a federal court may uphold a permit denial based on lay testimony). This case dealt with the federal standard for “substantial evidence,” not the Florida standard. Florida courts would have reached a different result. Id. at 452.

11 applicants and determined that an individual zoning decision may have the effect

• f prohibiting services.3

Florida Federal District Courts have also arrived at different decisions when applying the TCA of 1996 “Prohibition” limitation. T-Mobile South LLC vs. the City of Margate, 2011 Wh1303898 (S.D. Florida, 2011); Wireless Towers LLC v.

• St. Johns County, Florida, 690 F. Supp. 2d 1282 (M.D. Florida 2010); T-Mobile

South, LLC v. City of Jacksonville, FL, 564 F. Supp. 2d 1337 (M.D. Florida 2008); Wireless Towers, LLC v. City of Jacksonville, Florida, 712 F. Supp. 2d 1294 (M.D. 2010). The 47 USC 253(a) Initiative A personal wireless provider recently convinced a federal district court in California to declare that 47 U.S.C.S. § 253(a) expressly preempts county wireless facilities ordinances because the ordinance’s requirements have the effect of prohibiting the provision of telecommunication services. Sprint Telephony PC5, L.P. v. County of San Diego, 377 F. Supp. 2D. 886 (S.D. Cal. 2004) (Sprint I). 47 USCS 352(a) provides: “No state or local statute or regulation . . . may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

3The federal appellate courts are split on the application of the “prohibition” limitation to a site specific

• application. The Second and Third Circuit Courts of Appeal determine whether the denial of a site specific

application will create a significant gap in service to wireless customers: “If service is already provided in an area, it would be difficult to violate the prohibition clause which addresses only the prohibition of service.” APT Pittsburgh Limited Partnership v. Penn Township, 196 F.3d 469 (3d Cir. 1999); Omnipoint Communs. Enters, L.P., v. Zoning Hearing Bd., 319 F. 3d 627 (3d Cir. 2003); Sprint Spectrum L.P.V. Willoth, 176 F.3d 630 (2d Cir. 1999). On the other hand, the Ninth Circuit Court of Appeals held that a significant gap in service (and thus an effective prohibition of service) existed whenever a provider was prevented from filling a significant gap in its own service coverage. Metro PCS v. The City and County of San Francisco, 2005 U.S.

• App. 400 F. 3d 715 (9th Cir. 2005). The First Circuit also recently held that a local regulation creates a

significant gap in service (and thus prohibits service) if the provider is prevented from filing a significant gap in its own service network. Omnipoint Holdings, inc. v. City of Cranston, 586 F. 3d 38 (1st Cir. 2009). The Fourth Circuit Court of Appeals held that the denial of a site specific application does not violate the prohibition clause when the denial prevents the carrier by providing optimal service or requires the carrier to more costly alternatives to deploy its service. 360 Communications Co. v. Board of Supervisors of Albemarle County, 211 F.3d 79 (4th Cir. 2000). See also USCOC of Va. RSA #3, Inc., v. Montgomery County Board of Supervisors, 343 F. 3d 262 (4th Cir. 2003). See Omnipoint Communications MB Operations, LLC v. Town of Lincoln, 107

• F. Supp. 2d 108 (D. Mass 2000) for an example of a municipality violating the prohibition clause by denying a

site-specific application. The First and Seventh Circuit Courts require the applicant to show that their application was rejected and that future applications would be futile. Voicestream Minneapolis, Inc. v. St. Croix County, 342 F. 3d at 834-835. This standard requires the applicant to show that its application is the only feasible plan and that there are no other viable solutions to the asserted problem. Id. The Ninth Circuit recently held that denial of a permit constituted effective prohibition of coverage where the City failed to adequately rebut the prima facie showing that no other location was available and feasible. See T-Mobile v. City of Anacortes, 572 F.3d 987, 994 (9th Cir. 2009).

12 The circuit court rejected the county’s argument that 47 USCS 332(c)(7) is the

• nly remedy based on prohibition or effect of prohibition provided to wireless

carriers by the TCA of 1996 by holding that 253(a) applies to facial challenges to zoning ordinances and 332(c)(7) applies to site specific determinations. Finally, the court held that the ordinance’s submission, disclosure and public hearing requirements, unlimited discretion of county officials to require additional information and grant or deny permit applications, and the inclusion of civil and criminal penalties in the ordinance in combination violates Section 253(a). Sprint I, 377 F.Supp 2d at 896. The Court relied on various cases invalidating right-of- way based telecommunication franchise ordinances as authority for invalidating San Diego County’s wireless communications zoning ordinance. Id. at 891-97. The Ninth Circuit Court of Appeals granted a rehearing en banc (after petitioners initially appealed to a three-judge panel) and reversed the lower court’s decision. Sprint Telephony PC5, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008),

• cert. denied 129 S.Ct. 2860 (2009) (Sprint II). In order to reach its holding, the

court expressly overruled its prior holding in Auburn v. Qwest Corp, which involved interpretation of 47 U.S.C.S. § 253. Id. at 578. The court held that a plaintiff must show actual or effective prohibition, not the mere possibility of

• such. Id.

Moreover, the court held that §§ 253(a) and 322(c)(7)(B)(i)(II) should be identically interpreted. Id. at 579. Thus, the conflict over which statute applies does not affect the outcome of the case. Applying the new rule to the case, the court held that the ordinance at issue constituted neither a ban on wireless facilities nor an effective prohibition on such. Id. Lastly, the court proscribed use

• f a § 1983 action to redress a violation of the TCA. Sprint II, 543 F.3d at 580-

81. 3. A local government’s regulations may not unreasonably discriminate among providers of functionally equivalent services. Section 332(c)(7)(B)(i)(I) prohibits regulations that unreasonably discriminate against functionally equivalent wireless services (i.e., PCS and cellular): The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not unreasonably discriminate among providers of functionally equivalent services . . Although Congress provided that localities not favor one technology over another,

• r favor one service provider over another, this limitation does not require that all

wireless providers be treated identically. The permit applicant bears the burden proving that local authorities engaged in unreasonable discrimination. City of

13 Hillsboro, 301 F. Supp.2d at 1262 citing MetroPCS, Inc. v. City and County of San Franscisco, 259 F. Supp.2d 1004, 1011-12 (N.D. Cal. 2003). The fact that a decision has the effect of favoring one competitor over another, in and of itself, is not a violation of the discrimination clause. The discrimination clause provides a local government 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. Virginia Beach, 155 F.3d at 427. Local government decision to allow construction of a tower and attached wireless facility in one location does not require it to approve a facility in the other location in the community. Omnipoint Communs. Enters, L.P., v. Zoning Hearing Bd., 319 F. 3d 627 (3d Cir. 2003).4 Provided that there is no evidence that one form of wireless service is being favored over another, “[t]he fact that circumstances occurred in the past which gave the first competitor some advantage does not require that a subsequent competitor be afforded the same advantage in disregard of new local zoning rules.” Jefferson County, 59 F.Supp.2d at 1111. Most federal courts considering discrimination claims have required that providers who allege unreasonable discrimination to prove that they have been treated differently from other providers whose facilities are similarly situated in terms of the structure, placement, or cumulative impact as the facilities in

• question. APT Pittsburgh Ltd. P’shop v. Penn Township Butler County, 196 Fd.

3d 469, 480 (3d Cir. 1999); Willoth, 176 F. 3d at 643 (“It is not unreasonably discriminatory to deny a subsequent application for a cell site that is substantially more intrusive than existing cell sites by virtue of its structure, placement, or cumulative impact.”); 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 “’requires a showing that the other provider is similarly situated’”) (quoting Penn Township, 196 F. 3d at 480 n.8). 4. A local government must act on a request for a permit within a reasonable time. Section 332(c)(7)(B)(ii) requires that a local government act on a request for a wireless permit within a reasonable time:

4Factors that a municipality may consider include, but are not limited to, aesthetics, property values, quality of

service, number and height of towers, proximity to historic districts, safety concerns, environmental concerns, impact on residential neighborhood, and costs. See, e.g. Omnipoint communications v. Easttown Township, 248 F.3d 101 (3d Cir. 2001); 360 Communication Company of Charlottesville v. Board of Supervisors of Albermarle County, 211 F.3d 79 (4th Cir. 2001); Cellular Telephone Company v. Zoning Adjustment Borough

• f Ho-Ho-Kus, 197 F.3d 64 (3d Cir. 1999).

14 A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. The Act does not define “reasonable period of time.” This limitation was not intended to give preferential treatment to the wireless industry in the processing of requests, or to subject their requests to any but the generally applicable timeframes for a zoning decision. Medina, 924 F.Supp. at 1040, cited in National Telecommunication Advisors v. Board of Selectmen of the Town of West Stockbridge, 27 F.Supp.2d 284, 287 (D.Mass. 1998). 5. A local government may not base a decision on the environmental effects of radio frequency emissions if the proposed facility complies with FCC regulations. Section 332(c)(7)(B)(iv) prohibits a local government from basing a decision on the environmental effects of radio frequency emissions if the wireless facility complies with FCC regulations: No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects

• f radio frequency emissions to the extent that such facilities

comply with the Commission’s regulations concerning such emissions. This is the only provision of the Act that directly preempts local zoning authority. A local government’s planning staff should always recommend as a condition of approval that the facility comply with FCC regulations regarding radio frequency emissions, thereby deflating radio frequency emissions as an issue. 5 D. From Application to Decision: Developing the Best Record Possible A well-developed record may not only enable a local government to prevail when challenged in court, but also may dissuade a wireless provider from challenging the local government’s decision altogether. Consider preparing accurate simulation photos of the proposed PWSF.

5 But see Sprint Spectrum v. Township of Warren Planning Board, 737 A.2d 715 (N.J. Superior Ct. App. Div.

1999) (upholding board’s inquiry about RF emissions and requirement that provider explain its RF study for the site to ensure compliance with FCC regulation).

15 1. Know the law and educate your local officials and staff. Because an application for a wireless facility is evaluated under state and local law, the local government’s attorney, planning staff and officials must know the state and local law relevant to the application. In addition, to be certain that an application for a wireless facility is evaluated in a manner that complies with section 332(c)(7), the local government’s attorney, planning staff and officials must know the extent to which its local zoning authority is preserved by section 332(c)(7)(A), and the extent to which that authority is limited by section 332(c)(7)(B). 2. Have or obtain a basic understanding of wireless technology A local government’s planning staff and officials must have a basic understanding

• f wireless technology and design. Because the technology is constantly

changing, the planning staff should talk to planners in other localities, attend seminars, or confer with experts hired by the local government. The Internet is also a valuable resource for information on wireless technology and its new

• developments. Consider hiring a radio frequency engineer to provide testimony at

the hearing. 3. Develop a comprehensive record. The wireless decisions that have been upheld by the courts are almost always supported by records that reflect a lengthy and detailed examination of the application, and a deliberative, agency-like approach to resolving contested issues. When a court challenge is expected, a comprehensive record should be developed that will not only support the validity of the local government’s decision, but also facilitate judicial review. a. Develop the evidence. In order to evaluate an application for a wireless facility properly, a local government should: (1) Scrutinize the evidence submitted by the wireless provider. Consider whether the wireless provider’s representatives have the experience or expertise to make the claims they make, and consider the context in which the claim is made. For example, if a radio frequency engineer is claiming that a particular facility at a particular location is the only possible choice, determine what criterion he or she applied, e.g., whether it was to provide the largest coverage area through a single facility.

16 Be skeptical if a wireless provider makes absolute claims, such as claims that it has to have a tower 150 feet tall, that the site the applicant has submitted is the only site on which a facility can be located, or that the antennas have to clear the surrounding foliage by a certain distance to provide any service. Note that the government staff should apply the criteria in its code to the application submitted – and not discuss an alternative site that was not submitted. (2) Develop your own evidence. Consider having the planners take photographs from various properties in the area, from roads, and from other vantage points. Document the focal length of the lens used to take the photograph and the location from which the photographs are taken. Prepare accurate computer simulations of the proposed facility. Research current wireless technology and facility designs. Have the planners contact other localities to learn about the types of facilities they are considering, such as tree-top facilities and co- locations on transmission towers. b. Assure that the staff report is well prepared. When a local government’s governing body is faced with a land use decision, the staff report prepared by the local government’s professional planners may be the single most important piece of evidence in the record. As is always the case, the planner’s goal should be to provide as much information as possible to the planning commission and the governing body in an organized, comprehensive, reasoned and understandable format. (1) Set forth accurate and objective facts. The staff report should be written in a style that the intended audience (the public, the governing body, and the court) will be able to understand. The report also should be written in a tone that is completely objective. The planner should avoid conducting an analysis that indicates a preference of one type of wireless service

• ver another, or one wireless provider over another.

If a denial is challenged in court, the parties and the court will rely heavily on the factual description contained in the staff report. All relevant facts should be included in the staff report. Comprehensive descriptions of field investigations should be

17 included and photographs, maps and other supplementary information should be identified, explained and discussed. (2) Clearly identify each of the applicable land use criteria under separate headings. The staff report should identify each criteria applicable to the governing body’s decision and place them under separate headings in the staff report. The first area of analysis should be the comprehensive plan. Under each heading, the staff report should explain what that criterion means, analyze the facts that are relevant to that criterion, and then explain why the criterion is or is not satisfied. Each application is unique and deserves individual analysis and, thus, the staff report should not overly rely on boilerplate language taken from prior staff reports. c. The hearing. (1) Remind your planning staff and officials that everything that is stated will be part of the record (and will be in the verbatim transcript if a court reporter attends the hearing). The early published decisions considering section 332(c)(7) appeared to take great delight in pointing out statements made by members of governing bodies during public hearings, e.g., “Under the law you may have rights that I’m not aware of, but under a conditional use permit, you’re about to go down in flames,” AT&T Wireless PCS v. City of Virginia Beach, 979 F. Supp. 416 (E.D.

• Va. 1997), reversed at 155 F.3d 423; “[The Telecommunications

Act] was written mainly by the telecommunications industry in

• rder to try to weaken the power of local governments,”

Extraterritorial Zoning Authority, 957 F. Supp. at 1237, n.2; “[The residents] were there first. And we have to say - are we going to allow our citizens to take this crap?” Petersburg Cellular Partnership v. Board of Supervisors of Nottoway County, 29 F.Supp.2d 701 (E.D. Va. 1998), reversed at 205 F.3d 688. These kinds of statements may overshadow any reasoned and prudent decision-making process in which the governing body may engage, and add fuel to claims by wireless providers that the local government is hostile to wireless service. Under Florida law, a local governing body speaks through its motion or adopted order. Metropolitan Dade County v. Blumenthal, 675 So.2d 598 (Fla. 3d DCA 1998)

18 (2) Keep the discussion focused on the relevant issues. Keep the record clean and to the point by focusing on the relevant

• issues. Keep the discussion away from radio frequency emissions

if the wireless facility will comply with FCC standards. d. Make a decision. Once the governing body has conducted its public hearing, it may be time to make its decision. Remind the governing body that despite the technological issues surrounding the application, it is making a land use decision. (1) Consider whether a decision is ready to be made. The decision should be made only when the record has been fully developed and a reasonable basis for the decision can be

• articulated. If there are unanswered questions, if new information

is obtained during the public hearing, or if the record is not

• therwise fully developed, additional public hearings should be

conducted. (2) Weigh the evidence. Both the evidence in support of, and in opposition to, the application must be considered by the governing body in making its decision. Generally, the evidence and analysis presented by the local government’s professional planning staff is entitled to be given great weight, and a governing body is entitled to rely on that evidence and analysis. The governing body also should be cognizant of the quality of the evidence presented by the applicant, i.e., whether the evidence presented by the applicant was presented by persons with expertise in land use or by lay persons in that field. Finally, the governing body should evaluate the quality of the testimony presented by citizens, i.e., whether the evidence presented by a particular citizen had expertise on the subject on which he or she expressed a “fact-based” opinion, whether the citizens were residents of the area, whether the testimony of the citizens consisted of informed statements of fact related to the pertinent land use issues, such as the visibility of the facility and its impact on the character of the district, or whether those statements were nothing more that expressions of fears or desires. All

19 testimony on visual impacts should be supported by accurate and

• bjective photo simulations.
• III. PERSONAL WIRELESS SERVICE FACILITIES ORDINANCE

A. Concept/theme of Alachua County PWSF Ordinance (Note: These Are Major Policy Decisions for a Local Governing Body): 1. Discourage tall "towers" and discourage co-location of PWSFs on existing towers

• r towers approved pursuant to the Ordinance.

2. Encourage proliferation of shorter, less visible cell sites. 3. Nothing allowed by right and nothing prohibited outright. 4. Provide options and incentives to PWSF applicants to encourage deployment of PWSFs in a way that lessens visual impact on the community. 5. Approvals and denials of site specific applications will be written. Substantial evidence presented to the governing body and its decision will be based on application of standards and rules to the evidence presented. B. Tiered Permitting Approach 1. Tier 1: Expedited review (building permit). 2. Tier 2: DRC review (site plan review). 3. Tier 3: Special use permit process (action by governing body). C. Major Issues With Wireless Industry: 1. Co-location (existing towers; towers approved in the future). 2. Alternatives analysis. 3. Damaged/destroyed PWSF mounts. 4. Permitting on out-of-compliance PWSFs. 5. Antenna heights (above trees). 6. Modification of existing lawful sites.

20 7. The TCA effect of prohibition limitation and the cost of construction of more cell sites during the coverage phase of each carrier’s deployment.

• IV. THE 2003 FLORIDA LEGISLATURE

The 2003 Florida Legislature imposed the following limitations on local governments by enacting P.L. 2003-182 (codified in Section 365.172, Florida Statutes): 1. Encouraged collocation of personal wireless facilities (by requiring only building permit approval) subject to the following criteria and uncertainties: a) Height of mount not increased. b) Owner of mount must meet conditions of development approval (close mount, camouflage). c) Collocation not defined d) Wireless telephone service facilities not defined. e) At least one Florida County takes the position that antenna may be placed on mount pursuant to building permit, but equipment shelter must comply with land development code. 2. Prohibits local governments from requiring wireless providers to provide evidence of compliance with FCC guidelines on wireless emissions. 3. Establishes wireless application processing timelines. a) 45 business days for collocation applications. b) 90 business days for new wireless towers. c) Properly completed application. d) A local government’s failure to meet timelines results in the application permit being approved. e) Waiver. 4. Established Wireless Subcommittee. a) Wireless telephone providers report counties and cities whose actions have unreasonably delayed carriers’ abilities in meeting federal phase II E911 requirements.

21 b) Wireless Subcommittee responsible for developing a balance approach to locating wireless facilities necessary. c) The Subcommittee report (Summary and Conclusions). “Based on the 19 reports and supplemental reports referenced above, local jurisdiction responses and the mini-hearings, the Subcommittee finds that no consistent pattern or single issue was determined to indicate a uniform statewide problem causing “unreasonable delays” for the implementation of telecommunications facilities to meet federal Phase II E911 requirements. Some local jurisdictions do have issued that need to be addressed between the industry and local jurisdiction. d) The E911 myth. “Local government land use denials are preventing licensed personal wireless carriers from meeting Phase II FCC compliance.” The E911 coordinator for the county in which each reported jurisdiction is located participated in the Subcommittee hearings or provided information to the subcommittee. The E911 coordinator is responsible for working with the wireless service providers to integrate the requested E911 service with the County’s E911 facilities. E911 coordinators for 14 counties stated that they had no reports of delay. The E911 coordinators have no established role in the zoning or permitting review of wireless facility placements. The wireless industry reported that the E911 coordinator only has the ability to evaluate the proper functioning of its Phase II equipment and whether or not it is receiving Phase II locational data from each provider. However, each provider must also comply with its

• wn FCC Consent Decree Order which includes compliance with milestones and

requirements, such as certain numbers of sites, handset and network based technology, as well as technology and service deployment, all within certain timeframes, or face stiff

• penalties. In addition, providers must also comply with certain coverage requirements

within certain timeframes established by its FCC License.

• V. THE 2005 FLORIDA LEGISLATURE

The 2005 Florida Legislature (PL 2005-171) amends Section 365.172, Florida Statutes): 1. Provides definitions for administrative review, building permit review, collocation, provider of wireless service, tower, wireless communication facility, and wireless communications site. 2. Imposes standards that local governments must apply in the regulation of the placement, construction, and modification of wireless communication facilities: a) Encouraged collocations among wireless providers – building permit review only.

22 b) Restricts a local government’s authority to impose setbacks and separation distances on wireless facilities. c) Provides that local governments may prohibit placement of wireless facilities in residential areas or residential zoning districts only if the designated service can be reasonably provided to the residential area or zone in a manner consistent with the provider’s network design. 1) Exclusion from residential area may not prohibit or have the effect of prohibiting the provider’s service or unreasonably discriminate against providers of functionally equivalent services. 2) Requires local government and provider to work together to approve an appropriate location for the provision of the provider’s service. d) Limits fees local governments can impose on wireless facility applicants, including surety and insurance requirements. e) Limits the ability to impose structural standards other than those adopted by the local government pursuant to Chapter 553, Florida Statutes (building construction standards). f) Provides that existing non-conforming towers may be modified to permit collocation or be replace through no more than an administrative or building permit review process if the overall height is not increased and if the replacement tower is a monopole or the existing tower is a camouflage tower. g) Prohibits a local government from requesting information related to a provider’s business plan or need for wireless service (note 2(c), above). h) Prohibits a local government from requesting evidence of compliance with federal regulations except for FAA regulations. i) Provides that any person adversely affected may bring an action within 30 days to consider in a court of competent jurisdiction and requires the court to consider the matter on an expedited basis. j) Clarifies the 90-day and 45-business-day time limits established by the legislature in 2003.

• VI. FCC ORDER: SHOT CLOCKS FOR ZONING APPLICATIONS

In a response to a petition by the cellular industry, the FCC issued a declaratory ruling that imposes a 90-day timeframe for review of collocation applications and a 150-day timeframe for reviewing siting applications other than collocation applications. The ruling also declared that an

23 application may not be denied merely because service is available from another provider. Lastly, the FCC denied the petitioners’ request that the FCC find that a regulation requiring a variance or waiver for every wireless facility siting violated § 253(a) of the TCA. As to the jurisdictional issue, the FCC found that it has jurisdiction to interpret ambiguous sections of § 322(c) as long as its interpretation does not amount to a new limitation on local

• zoning. [p. 8]. In Alliance for Community Media v. FCC; 529 F.3d 763 (6th Cir. 2008), cert

denied, 129 S.Ct. 2821 (2009); the court upheld establishment of a timeframe for local authorities to process cable franchise operations. Thus, despite state and local government

• bjection, the FCC found that it had jurisdiction to consider and render decisions on the issues.

A. Shot clock requirement The FCC adopted the Petitioners’ position that without timeframes, petitioners cannot determine when a state/local government has “failed to act” under the statute. Given that the petitioner would have only 30 days to challenge such a failure to act, a timeframe is necessary to avoid disputes over the statute of limitations for bringing such a challenge. While the respondents argued that “reasonable period of time” is sufficiently clear and that governments need flexibility to deal with individual circumstances, the FCC found that service providers often face “lengthy and unreasonable delays” during the application process. Furthermore, the FCC noted that there is an interest in quickly processing applications so as to provide emergency services and other services. [p. 11-12]. It determined that 90 days and 150 days were reasonable periods of time, given current trends and expectations of local government decision-makers. “This limitation will help to ensure that State and local governments will have a reasonable period of time to review those applications that may require more extensive consideration.” Nonetheless, the FCC disagreed with petitioners that the remedy must be automatic approval of the application. Rather it left the remedial decisions to the courts. B. Service may not be denied based on available service by another provider The petitioner appealed to the FCC seeking to prevent governments from denying applications solely because another wireless provider can provide service to that area. Respondents argued that the remedy is to bring a claim of unreasonable discrimination, not an FCC-issued injunction. The FCC concluded that denial based on that reason would constitute an effective prohibition of personal wireless services within the meaning of §322(c). First, it noted that the language says “personal wireless services,” plural, not service, singular. Second, it noted that the first carrier may not serve the entire area, which may leave areas unserved. Third, the FCC rejected the “one- provider” approach supported by the Fourth Circuit. Lastly, it found that its findings are consistent with the intended goals of the TCA..

24

• VII. LEASING GOVERNMENT PROPERTY FOR CELL TOWERS

County authority to lease or sublease land for antennas In Florida, counties have the authority to lease or sublease their land to wireless carriers. Specifically, Florida Statute § 125.35(1)(a) states: The board of county commissioners is expressly authorized to sell and convey any real or personal property, and to lease real property, belonging to the county whenever the board determines that it is in the best interest of the county to do so, to the highest and best bidder for such length of term and such conditions as the governing body may in its discretion determine. Mutual benefits of leasing local government property for cellular towers Local governments often own water towers and other properties that are attractive to wireless carriers since the properties eliminate the need to build a tower or apply for the appropriate

• zoning. However, pursuant to the Telecommunications Act of 1934 § 704 and Omnipoint

Communications v. Port Authority of New York and New Jersey, 1999 WL 494120 (2d Cir. 1999), local governments are not required to lease their property to wireless providers. Only federal land must be made available to wireless carrier lessees. Id. Similarly, cellular antenna and tower leases can benefit local governments. Siting towers on local government property may reduce their visual impacts in residential neighborhoods. For instance, a locality can site antennas on top of or at the corner of government buildings, which may reduce the need for towers in the middle of residential neighborhoods. In addition, the leases can provide a steady source of revenue for cash strapped local governments. Sample local government tower lease For a full sample lease, please see the attached document. This section will merely highlight some recommended clauses tower lease agreement. Therefore, the basic terms of the lease, such as the amount of the consideration paid, the number of antennas included in the base rent, and the length of the lease, will not be described. However, the local government (“Lessor”) must ensure that several clauses are included in the contract. A lease should state: what area is being leased to the wireless provider (“Lessee”), the purpose the land is being leased for, the easements being granted, and whether backup generators are permitted on the land; what will be built on the land, usually the tower and ground facilities, and who shall pay for the construction;

25 which party owns the tower during and after the terms of the lease; whether the wireless provider can attach liens unto the property; whether Lessor can relocate the tower and on whose expense; whether the tower must be designed to hold additional antennas, whether the antennas are subleasable, and who gets the revenue from the additional antennas (or at what percentage should the additional revenue be shared between Lessor and Lessee); who is responsible for the cost of maintaining the tower; whether improvements to the tower are allowed and at whose expense; who is liable for damage resulting from Lessee’s use of the leasehold and what access will Lessor and Lessee have to the land; what late fee penalty will be imposed for Lessee’s missed rental payments; what is the escalation rate of the base rent; how the contract is terminated, and the remedies for termination; whether a party can cure default and how to do so; who is responsible for real and personal property taxes during the lease; and a surety or other insurance to provide for removal of the structure at the owner’s request if the structure is abandoned. In addition, sometimes a local government will want to sublease space on Lessee’s tower in order to provide for a public communications facility. The main lease to the wireless provider or tower builder can briefly mention this sublease, but a separate sublease agreement should be drafted and signed. The lease should be contingent upon Lessee’s compliance with all local and federal laws and upon the appropriate local government’s approval of the tower’s design and location. To aid in local permitting efforts, Lessee should provide photo simulations of the tower. Lessee should also perform a radio frequency propagation study (“RF study”) to prove that the tower will not interfere with existing public communication facilities. A lease should provide for the liability flowing from hazardous substances brought on the land by a party. The party responsible for the hazard can be required to indemnify the innocent party from any liability arising from the substance.

26 The lease needs to provide for or limit the ability of the wireless provider to assign or sublease the property. If assignment is allowed, the lease needs to specify what obligations a subtenant or assignor assumes. Finally, the lease should contain language to provide for Lessee’s bankruptcy proceeding. Wireless providers have failed in the past, and as competition and technological innovation in the telecommunications industry increases, it is likely that providers will fail in the future. Corporations that build, own and maintain towers have also failed. As such, the lease should stipulate that the parties intend for the agreement to constitute an unexpired lease for commercial real property under United States Bankruptcy Code section 11 U.S.C. § 365. With such a provision, the bankruptcy Trustee is required to perform the lease in full or return the lease to the local government 11 U.S.C. § 365(d)(3) and (4). Anticipating the possibility of bankruptcy in the lease agreement prevents Lessor from receiving a pro rata share of the bankruptcy distribution instead of the full rent Lessee owes. Also, providing for a bankruptcy filing in the lease avoids the possibility of the property falling into disrepair while waiting for the Trustee to assume or reject the unexpired lease. 11 U.S.C. § 365(a) and (d)(3).

• VIII. CONCLUSION

In defining regulation of personal wireless service facilities, the Telecommunications Act of 1996 shifts much of the burden of evaluation from the federal bureaucracy to local governments. The FCC has benefited from wireless auctions and should be considered somewhat aligned with the wireless industry: both the FCC and the industry want the wireless infrastructure deployed quickly. The Telecommunications Act has five limitations discussed in this outline on local government zoning, all of which were originated by the wireless industry to meet marketing objectives. In 2003, the Florida Legislature adopted PL 2004-182 which further limits a local government’s authority to determine the location of certain wireless facilities. The technology aspects of wireless are constantly changing. Few observers or decision-makers (or judges, for that matter) are aware that wireless can be deployed with very small facilities on utility poles. The wireless build-out has many years more to run; which means towers may soon

• utlive their usefulness for personal wireless service facilities.

Terms like “least intrusive means” and “significant gaps” will change wireless review at the local level in ways unanticipated by the industry. Planning techniques such as alternatives analysis and standards of review threaten to make local reviews more onerous for the industry and less likely to result in approvals of facilities that are not consistent with a community’s values.

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