Federal Regulations

The federal government, including the Federal Communications Commission (FCC), favors the objectives of the telecommunications industry over the health and safety of residents. The FCC has broad authority over telecommunications infrastructure, including the deployment of 5G networks. Federal laws and FCC orders set frameworks that local governments must follow. They are designed to support the rapid rollout of nationwide 5G networks, and often limit the extent to which local authorities can reject wireless facility siting applications, particularly on the basis of environmental concerns or health impacts related to radiofrequency exposure. 

The Telecommunications Act of 1996

The Telecommunications Act of 1996 (TCA) was the first major overhaul of telecommunications law in almost 62 years. The TCA is an act:

“To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.”

Section 704

47 U.S.C. § 332(c)(7)(B) of the Telecommunications Act of 1996 is a key provision that governs the relationship between federal, state, and local authorities concerning the placement, construction, and modification of personal wireless service facilities. This section is part of the broader Section 332, which deals with mobile services, and it specifically addresses the limitations on the regulatory powers of state and local governments.

This section reads as follows:

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services

(ii) 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.

(iii) 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.

(iv) 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 of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

Significant Gap in Coverage

Section §332(c)(7)(B)(i)(II) of the Telecommunications Act of 1996 is a crucial part of the law that governs how state and local governments can regulate the placement, construction, and modification of personal wireless service facilities. This section specifically addresses the limitations placed on local and state governments to ensure that they do not obstruct the development of wireless networks.

This section reads as follows:

§332(c)(7)(B)(i)

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

This means that while local governments have the authority to regulate the placement, construction, and modification of wireless facilities, they cannot exercise this authority in a way that effectively prevents a wireless carrier from providing service. In other words, they cannot adopt or enforce regulations that would make it impossible or extremely difficult for a provider to deploy the necessary infrastructure to offer wireless services. Local governments can still enforce zoning laws and other regulations, but those regulations cannot be so restrictive that they effectively block the deployment of wireless networks.

It is important to note that:

  • The wireless company must prove that it suffers from a significant gap in its personal wireless service and that the proposed installation is the least intrusive means of remedying the gap, and that there are no possible less intrusive alternate locations available.

  • The TCA does not define what constitutes a “significant gap” in coverage. According to TCA litigator Andrew J. Campanelli, this presents an opportunity for local officials to make the determination whether a significant gap exists or not. Unfortunately,  many local governments do not engage in this exercise, allowing federal courts to make the determination for them. 

Environmental & Health Effects

Section §332(c)(7)(B)(iv) prohibits state and local governments from regulating wireless service facilities based on concerns about the environmental effects of RF emissions, provided that the facilities comply with the FCC’s regulations. Courts have interpreted environmental effects to include health effects. The text of this section reads:

§332(c)(7)(B)(iv) Prohibition on certain actions— 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 of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

FCC Rulings

Declaratory Ruling and Order – FCC Ruling 09-99

The FCC's Declaratory Ruling and Order (FCC ruling 09-99) was designed to streamline the process of deploying wireless  facilities, including cell towers, by encouraging the rapid rollout of wireless services nationwide. While designed to expedite the deployment of wireless infrastructure to meet growing demand for mobile and wireless broadband services, the ruling can be seen as limiting local government’s ability to control the placement, construction, and modification of wireless telecommunication facilities in their jurisdictions. and can lead to conflicts with local communities.

Small Cell Order – FCC Ruling 18-133

In 2018, the FCC issued the Small Cell Order (Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment), which  mandates cities and counties to lease out the public rights-of-way to telecommunications companies for small cell installations. It is significant because it advances earlier rulings like FCC 09-99 by streamlining the deployment of small cells. The Small Cell Order significantly reduced the power of local governments. Advocacy groups have challenged the FCC's authority to preempt local regulations to this extent, arguing it oversteps federal authority and undermines local governance. 

The Small Cell Order strengthened the “Shot Clock Rule” governing the review of wireless infrastructure deployments for wireless facilities and established two new shot clocks for small wireless facilities. According to this rule, applications must be processed within:

  • 60 days for review of an application for collocation of Small Wireless Facilities using a preexisting structure and 

  • 90 days for review of an application for attachment of Small Wireless Facilities using a new structure.

The shot clock period begins to run when an application is initially first submitted, not when the application is deemed complete. The ruling states,  that “the siting authority has 10 days from the submission of the application [for Small Wireless Facilities] ... to determine whether the application is incomplete. The shot clock then resets once the applicant submits the supplemental information requested by the siting authority.”