restrictions on state and local government

The Telecommunications Act of 1996 imposes limitations on a local government’s ability to deny permits to construct telecommunication towers. These include, among others, prohibitions against discrimination, a review of applications within a reasonable timeframe, and a requirement that application denials be “in writing and supported by substantial evidence contained in a written record.” See 47 U.S.C. §332(c)(7)(B)(i)-(iv). The statute juxtaposes these restrictions against an express preservation of a local government’s “decisions regarding the placement, construction, and modification of personal wireless service facilities.” Id. at § 332(c)(7)(A).

Recently, some courts have strictly construed Section 332(c)(7)(B)’s prohibitions. For example, last week, the 9th Circuit U.S. Court of Appeals held that a local government’s requirement that municipal voters approve certain constructions was not subject to the prohibitions of Section 332(c)(7). In Omnipoint Commc’ns Inc. v. City of Huntington Beach, — F. – -, 2013 WL 6486240 (9th Cir. Dec. 11, 2013), a seventeen year-old voter initiative amended the local government’s charter to require city council and voter approval before construction costing more than $100,000 occurred on city-owned property. After initially approving the carrier’s siting of antennas in a city park within a reasonable time but discovering that the construction costs exceeded $100,000, the local government required that the construction be approved by voters. The carrier filed suit arguing that Section 332(c)(7)’s restrictions barred applying the voter-initiative requirement to the proposed construction. 
Continue Reading Courts Continue to Strictly Interpret the Preemptive Scope of Tower Siting Rules