April 23, 1996

FEDERAL COMMUNICATIONS COMMISSION

FACT SHEET

Information provided by the Wireless Telecommunications Bureau

NEW NATIONAL WIRELESS TOWER SITING POLICIES

The Telecommunications Act of 1996 contains important provisions concerning the placement of towers and other facilities for use in providing personal wireless services. Most state and local communities have worked closely with cellular and other wireless service providers on such placement plans, but this new law establishes new responsibilities for communities and for the Federal Communications Commission (FCC). The rapid expansion in the wireless industry makes these issues even more important.

This fact sheet is intended to explain the new provisions and to help state and local governments as they deal with the complex issues of facilities siting in their local communities. At the end of this fact sheet, you will find names of contacts for additional information about this area and other issues before the FCC.

Section 704 of the Telecommunications Act of 1996 (the "1996 Act") governs federal, state and local government oversight of siting of "personal wireless service" facilities. The 1996 Act establishes a comprehensive framework for the exercise of jurisdiction by state and local zoning authorities over the construction, modification and placement of facilities such as towers for cellular, personal communications service (PCS), and specialized mobile radio (SMR) transmitters:

- The new law preserves local zoning authority, but clarifies when the exercise of local zoning authority may be preempted by the FCC.

- Section 704 prohibits any action that would discriminate between different providers of personal wireless services, such as cellular, wide-area SMR and broadband PCS. It also prohibits any action that would ban altogether the construction, modification or placement of these kinds of facilities in a particular area.

- The law also specifies procedures which must be followed for acting on a request to place these kinds of facilities, and provides for review in the courts or the FCC of any decision by a zoning authority that is inconsistent with Section 704.

 

- Finally, Section 704 requires the federal government to take steps to help licensees in spectrum-based services, such as PCS and cellular, get access to preferred sites for their facilities. Federal agencies and departments will work directly with licensees to make federal property available for this purpose, and the FCC is directed to work with the states to find ways for states to accommodate licensees who wish to erect towers on state property, or use state easements and rights-of-way.

The attachments to this fact sheet seek to provide information concerning tower siting for personal wireless communications services. They include a summary of the provisions of Section 704 of the 1996 Act, the actual text of Section 704, and a technical information summary that describes the cellular, wide-area SMR and broadband PCS technologies that underlie the majority of requests for new tower sites.

Questions about the Telecommunications Act of 1996 generally may be addressed to Sheryl Wilkerson in the FCC's Office of Legislative and Intergovernmental Affairs, 202-418-1902 (e-mail: swilkers@fcc.gov). Questions about tower siting, licensing issues or technical matters may be addressed to Steve Markendorff, Deputy Chief, Commercial Wireless Division in the Wireless Telecommunications Bureau, 202-418-0620, (e-mail: smarkend@fcc.gov).

This Fact Sheet is available on our fax-on-demand system. The telephone number for fax-on demand is 202-418-2830. The Fact Sheet may also be found on the World Wide Web at http://wireless.fcc.gov/.

SUMMARY OF SECTION 704 OF THE TELECOMMUNICATIONS ACT OF 1996

The following is a summary of key provisions. The text of Section 704 is reproduced in its entirety as an attachment to this summary.

1. Local Zoning Authority Preserved

Section 704(a) of the 1996 Act amends Section 332(c) of the Communications Act ("Mobile Services") by adding a new paragraph (7). It preserves the authority of state and local governments over decisions regarding the placement, construction, and modification of personal wireless service facilities, except as provided in the new paragraph (7).

2. Exceptions

a. States and Localities May Not Take Discriminatory or Prohibiting Actions

Section 704(a) of the 1996 Act states that 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 and shall not prohibit or have the effect of prohibiting the provision of personal wireless services. 47 U.S.C. §332(c)(7)(B)(i).

Review: Any person that is adversely affected by a state or local government's action or failure to act that is inconsistent with Section 332(c)(7) may seek expedited review in the courts. 47 U.S.C. §332(c)(7)(B)(v).

b. Procedures for Ruling on Requests to Place, Construct or Modify Personal Wireless Service Facilities

Section 704(a) also requires a State or local government to act upon a request for authorization to place, construct, or modify personal wireless service facilities within a reasonable time. Any decision to deny a request must be made in writing and be supported by substantial evidence contained in a written record. 47 U.S.C. §332(c)(7)(B)(ii), (iii).

c. Regulations Based On Environmental Effects of RF Emissions Preempted

Section 704(a) of the 1996 Act expressly preempts state and local government regulation of 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 FCC's regulations concerning such emissions. 47 U.S.C. §332(c)(7)(B)(iv).

Review: Parties may seek relief from the FCC if they are adversely affected by a state or local government's final action or failure to act that is inconsistent with this provision. 47 U.S.C. § 332(c)(7)(B)(v).

3. Federal Guidelines Concerning RF Emissions

Section 704(b) requires the FCC to prescribe and make effective new rules regarding the environmental effects of radio frequency emissions, which are under consideration in ET Docket 93-62, within 180 days of enactment of the 1996 Act.

NOTE: The pendency of this proceeding before the FCC does not affect the rules which currently are in effect governing the environmental effects of radio frequency emissions. Section 704(b) gives preemptive effect to these existing rules. See related attachments to the Fact Sheet.

4. Use of Federal or State Government Property

a. Federal Property

Section 704(c) of the 1996 Act requires the President (or his designee) to prescribe procedures by which the federal government may make available on a fair, reasonable and nondiscriminatory basis, property, rights-of-way and easements under their control, for the placement of new spectrum-based telecommunications services.

b. State Property

With respect to facilities siting on state property, Section 704(c) of the 1996 Act requires the FCC to provide technical support to States to encourage them to make property, rights-of-way and easements under their jurisdiction available for the placement of new spectrum-based telecommunications services.

NOTE: Information concerning technical support for tower siting which the FCC is making available to state and local governments is attached to the Fact Sheet.

5. Definitions

"Personal wireless services" include commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. 47 U.S.C. §332(c)(7)(C)(i).

"Commercial mobile services" are defined in Section 332 of the Communications Act and the FCC's rules, and include cellular telephone services regulated under Part 22 of the FCC's rules, SMR services regulated under Part 90 of the FCC's rules, and PCS regulated under Part 24 of the FCC's rules. 47 C.F.R. §20.9.

"Unlicensed wireless services" are defined as the offering of telecommunications services using duly authorized devices which do not require individual licenses; direct-to-home satellite services are excluded from this definition. 47 U.S.C. §332(c)(7)(C)(iii).

COMPLETE TEXT OF SEC. 704 OF THE TELECOMMUNICATIONS ACT OF 1996


SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.


(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:
`(7) PRESERVATION OF LOCAL ZONING AUTHORITY-
`(A) GENERAL AUTHORITY- Except as provided in this
paragraph, nothing in this Act 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 service
facilities.
`(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
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.

`(C) DEFINITIONS- For purposes of this paragraph--
`(i) the term `personal wireless services' means
commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange access
services;
`(ii) the term `personal wireless service facilities'
means facilities for the provision of personal wireless
services; and
`(iii) the term `unlicensed wireless service' means
the offering of telecommunications services using duly
authorized devices which do not require individual
licenses, but does not mean the provision of
direct-to-home satellite services (as defined in
section 303(v)).'.

(b) RADIO FREQUENCY EMISSIONS- Within 180 days after the
enactment of this Act, the Commission shall complete action in ET
Docket 93-62 to prescribe and make effective rules regarding the
environmental effects of radio frequency emissions.

(c) AVAILABILITY OF PROPERTY- Within 180 days of the enactment of
this Act, the President or his designee shall prescribe procedures
by which Federal departments and agencies may make available on a
fair, nondiscriminatory basis, property,
rights-of-way, and easements under their control for the placement
of new telecommunications services that are dependent, in whole or
in part, upon the utilization of Federal spectrum rights for the
transmission or reception of such services. These procedures may
establish a presumption that requests for the use of property,
rights-of-way, and easements by duly authorized providers should be
granted absent unavoidable direct conflict with the department or
agency's mission, or the current or planned use of the property,
rights-of-way, and easements in question. Reasonable fees may be
charged to providers of such telecommunications services for use of
property, rights-of-way, and easements. The Commission shall
provide technical support to States to encourage them to make
property, rights-of-way, and easements under their jurisdiction
available for such purposes.

TECHNICAL INFORMATION CONCERNING CELLULAR, SPECIALIZED MOBILE RADIO AND PERSONAL COMMUNICATIONS SERVICES

April 1996

Cellular Information

The FCC established rules and procedures for licensing cellular systems in the United States and its Possessions and Territories. These rules designated 306 Metropolitan Statistical Areas and 428 Rural Service Areas for a total of 734 cellular markets and spectrum was allocated to license 2 systems in each market. Cellular is allocated spectrum in the 824-849 and 869-894 MHz ranges. Cellular licensees are generally required to license only the tower locations that make up their outer service contour. Licensees desiring to add or modify any tower locations that are within an already approved and licensed service area do not have to submit an application for that location to be added to their cellular license, although they may need FCC approval if the antenna would constitute a major environmental action (See question 2, below) or would exceed the criteria specified in Part 17 of the FCC's Rules ("Construction, Marking and Lighting of Antenna Structures"). Part 17 includes criteria for determining when construction or placement of a tower would require prior notification to the Federal Aviation Administration (FAA). (See question 3, below.)

A cellular system operates by dividing a large geographical service area into cells and assigning the same frequencies to multiple, non-adjacent cells. This is known in the industry as frequency reuse. As a subscriber travels across the service area the call is transferred (handed-off) from one cell to another without noticeable interruption. All the cells in a cellular system are connected to a Mobile Telephone Switching Office (MTSO) by landline or microwave links. The MTSO controls the switching between the Public Switched Telephone Network (PSTN) and the cell site for all wireline-to-mobile and mobile-to-wireline calls.

Specialized Mobile Radio (SMR) Information

Specialized Mobile Radio (SMR) service licensees provide land mobile communications on a commercial (i.e., for profit) or private basis. A traditional SMR system consists of one or more base station transmitters, one or more antennas and end user radio equipment which often consists of a mobile radio unit either provided by the end user or obtained from the SMR operator. The base station receives either telephone transmissions from end users or low power signals from end user mobile radios.

SMR systems operate in two distinct frequency ranges: 806-821/851-866 MHz (800 MHz) and 896-901/935-940 MHz (900 MHz). 800 MHz SMR services have been licensed by the FCC on a site-by-site basis, so that the SMR provider must approach the FCC and receive a license for each and every tower/base site. In the future the FCC will license this band on a wide-area market approach. 900 MHz SMR was originally licensed in 46 Designated Filing Areas (DFAs) comprised of only the top 50 markets in the country. The Commission is in the process of auctioning the remainder of the United States and its Possessions and Territories in the Rand McNally defined 51 Major Trading Areas.

PCS Information

Broadband PCS systems are very similar to the cellular systems but operate in a higher frequency band, in the 1850-1990 MHz range. One other difference is that the FCC used different market areas for licensing purposes. The FCC used the Rand McNally definitions for 51 Major Trading Areas (MTAs) and 493 Basic Trading Areas (BTAs). PCS was allocated spectrum for six Broadband PCS systems and 26 Narrowband systems. The six Broadband PCS systems will be licensed as follows: two Broadband PCS licenses will be issued for each of the 51 MTAs and four for each of the 493 BTAs. The 26 Narrowband systems will be licensed as follows: eleven Narrowband PCS licenses will be issued for nationwide systems, six for each of five regional areas, seven for each of the 51 MTAs and two for each of the 493 BTAs.

PCS licensees are issued a blanket license for their entire market area and are not required to submit applications to license individual cell sites unless construction of the facility would be a major environmental action or would require FAA notification. Major environmental actions are defined by the National Environmental Policy Act of 1969 that is discussed in question 2, below. Therefore, the FCC has no technical information on file concerning PCS base stations.

Frequently asked questions concerning tower siting for personal wireless services.

1. Do local zoning authorities have any authority to deny a request for tower siting?

Answer: Yes. The Telecommunications Act of 1996 specifically leaves in place the authority that local zoning authorities have over the placement of personal wireless facilities. It does prohibit the denial of facilities siting based on RF emissions if the licensee has complied with the FCC’s regulations concerning RF emissions. It also requires that denials be based on a reasoned approach, and prohibits discrimination and outright bans on construction, placement and modification of personal wireless facilities.

2. What requirements do personal wireless communications licensees have to determine whether a site is in a flood plain? A historical sites must also comply with the National Environmental Policy Act of 1969 (NEPA). as well as other mandatory federal environmental statutes. The FCC's rules that implement the federal environmental statutory provisions are contained in sections 1.1301-1.1319. The FCC's environmental rules place the responsibility on each applicant to investigate all the potential environmental effects, and disclose any significant effects on the environment in an Environmental Assessment (EA), as outlined in section 1.1311, prior to constructing a tower. The applicant is required to consult section 1.1307 to determine if its proposed antenna structure will fall under any of the listed categories that may significantly affect the environment. If it does, the applicant must provide an EA prior to proceeding with the tower construction and. under section 1.1312, must await FCC approval before commencing any such construction even if FCC approval is not otherwise required for such construction. The FCC places all proposals that may significantly impact the environment on public notice for a period of 30 days, seeking any public comments on the proposed structures.

The categories set forth in section 1.1307 include:

Wilderness Area

Wildlife Preserve

Endangered Species

Historical Site

Indian Religious Site

Flood Plain

Wetlands

High Intensity White Lights in Residential Neighborhoods

Excessive Radiofrequency Radiation Exposure

3. Are there any FCC regulations that govern where towers can or cannot be placed?

Answer: The FCC mandates that personal wireless companies build out their systems so that adequate service is provided to the public. In addition, all antenna structures used for communications must be approved by the FCC in accordance with Part 17 of the FCC Rules. The FCC must determine if there is a reasonable possibility that the structure may constitute a menace to air navigation. The tower height and its proximity to an airport or flight path will be considered when making this determination. If such a determination is made the FCC will specify appropriate painting and lighting requirements. Thus, the FCC does not mandate where towers must be placed, but it may prohibit the placement of a tower in a particular location without adequate lighting and marking.

 

4. Does the FCC maintain any records on tower sites throughout the United States? How does the public get this information (if any)?

Answer: The FCC maintains a general tower database on the following structures: (1) any towers over 200 feet, (2) any towers over 20 feet on an existing structure (such as a building, water tower, etc.) and (3) towers that are close to airports that may cause potential hazards to air navigation. The FCC’s licensing databases contain some base site information for Cellular and SMR systems. The general tower database and the Cellular and SMR data that may be on file with the FCC is available in three places:

(1) Cellular licensing information is available in the Public Reference Room of the Wireless Telecommunications Bureau's Commercial Wireless Division. The Public Reference Room is located on the fifth floor of 2025 M Street, NW, Washington, DC 20554, telephone (202)418-1350. On-line database searches of cellular licensing information along with queries of the FCC's general tower database can also be accomplished at the Public Reference Room.

(2) People who would like to obtain general tower information through an on-line public access database should call or write Interactive Systems, Inc., 1601 North Kent St., Suite 1103, Arlington, VA 22209, telephone 703-812-8270.

 

(3) The FCC does not duplicate these records, but has contracted with International Transcription Service, Inc. to provide this service. Requests for copies of information should be addressed to International Transcription Service, Inc. (ITS, Inc.), 2100 M St., NW, Suite 140, Washington, DC 20037, telephone 202-857-3800.

 

5. Why do Cellular and PCS providers require so many tower sites?

Answer: Low powered transmitters are an inherent characteristic of Cellular Radio and Broadband PCS. As these systems mature and more subscribers are added, the effective radiated power of the cell site transmitters is reduced so frequencies can be reused at closer intervals thereby increasing subscriber capacity. There are over 30 million mobile/portable cellular units and more than 22 thousand cell sites operating within the United States and its Possessions and Territories. PCS is just beginning to be offered around the country. Due to the fact that Broadband PCS is located in a higher frequency range, PCS operators will require more tower sites as they build their systems to provide coverage in their service areas as compared to existing Cellular carriers. Therefore, due to the nature of frequency reuse and the consumer demand for services, Cellular and PCS providers must build numerous base sites.

6. Can Cellular, SMR and PCS providers share tower structures?

Answer: Yes, it is technologically possible for these entities to share tower structures. However, there are limits to how many base station transmitters a single tower can hold and different tower structures have different limits. Moreover, these providers are competitors in a more and more competitive marketplace and may not be willing to share tower space with each other. Local zoning authorities may wish to retain a consulting engineer to evaluate the proposals submitted by wireless communications licensees. The consulting engineer may be able to determine if there is some flexibility as to the geographic location of the tower.

7. Is the Federal government helping to find ways to accommodate multiple licensees of personal wireless services?

Answer: Yes. The FCC has designated Steve Markendorff, Chief, Broadband Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, FCC to as and respond to questions concerning tower siting issues. His telephone number is 202-418-0620. Also, President Clinton issued an Executive Memorandum on August 10, 1995 directing the Administrator of General Services (GSA), in coordination with other Government departments and agencies, to develop procedures to facilitate appropriate access to Federal property for the siting of mobile services antennas. GSA recently released "Government-Wide Procedures for Placing Commercial Antennas," 61 Fed Reg 14,100 (March 29, 1996). For further information contact James Herbert, Office of Property Acquisition and Realty Services, Public Building Service, General Services Administration, 18th & F Streets, NW, Washington, DC 20405, telephone 202-501-0376.

 

8. Have any studies been completed on potential hazards of locating a tower/base site close to residential communities?

Answer: In connection with its responsibilities under NEPA, the FCC considers the potential effects of radiofrequency (RF) emissions from FCC-regulated transmitters on human health and safety. Since the FCC is not the expert agency in this area, it uses standards and guidelines developed by those with the appropriate expertise. For example, in the absence of a uniform federal standard on RF exposure, the FCC has relied since 1985 on the RF exposure guidelines issued in 1982 by the American National Standards Institute (ANSI C95.1-1982). In 1991, the Institute of Electrical and Electronic Engineers (IEEE) issued guidelines designed to replace the RF ANSI exposure guidelines. These guidelines (ANSI/IEEE C95.1-1992) were adopted by ANSI. The Telecommunications Act of 1996 mandates that the FCC complete its proceeding in ET Docket 93-62, in which it is considering updating the RF exposure guidelines, no later than early August 1996. Copies of this proceeding can be obtained from the International Transcription Service, Inc. (ITS), telephone 202-857-3800. Presently, RF emission requirements are contained in Section 1.1307(b) of the FCC's rules , 47 C.F.R. §1.1307(b), for all services. PCS has service specific RF emission provisions in Section 24.52 of the FCC's rules, 47 C.F.R. § 24.52.

Additional information concerning RF emission hazards can be obtained through a variety of sources:

(1) Information concerning RF hazards can be obtained on the World Wide Web at http://www.fcc.gov/oet/faqs. RF safety questions are answered and further RF documents and information are contained under the Cellular Telephony Section.

(2) OET Bulletins 56 and 65 concerning effects and potential RF hazards can be requested through the Radiofrequency Safety Program at 202-418-2464. Additionally, any specific questions concerning RF hazards can be answered by contacting the FCC at this phone number.

The FCC maintains a Communications and Crisis Management Center which is staffed 24 hours a day, seven days a week. In the event of an emergency, such as a radiofrequency hazard threatening public safety or health, you may call 202-632-6975. The watch officer who answers at that number can contact our compliance personnel in your area and dispatch them within a matter of hours.