I

106TH CONGRESS

1ST SESSION H. R. 952

To amend the Telecommunications Act of 1996 to preserve State and local

authority over the construction, placement, or modification of personal

wireless service facilities.

IN THE HOUSE OF REPRESENTATIVES

MARCH 3, 1999

Mr. BASS introduced the following bill; which was referred to the Committee

on Commerce

A BILL

To amend the Telecommunications Act of 1996 to preserve

State and local authority over the construction, placement, or modification of personal wireless service facilities.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Local Zoning Preserva5 tion Act of 1999’’.

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) FINDINGS.—Congress makes the following find8 ings:
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1 (1) In the Telecommunications Act of 1996,

2 Congress preserved local zoning authority over deci3 sions regarding the placement, construction and

4 modification of personal wireless service facilities,

5 except that (A) the zoning application must be acted

6 upon within a reasonable amount of time; (B) the

7 decision must be in writing and be supported by sub8 stantial evidence; (C) the decision must not be based

9 on concerns about the environmental effects of radio

10 frequency emissions from facilities; and (D) the

11 State or locality must not discriminate among per12 sonal wireless service providers.

13 (2) State and municipal zoning decisions tradi14 tionally have been afforded virtually complete def15 erence by Federal courts. Issues of land use are dis16 tinctly local and therefore fall on the State-side of

17 the federalism divide.

18 (3) When Congress passed the Telecommuni19 cations Act of 1996, it anticipated the need for and

20 proliferation of personal wireless service facilities.

21 Congress, however, included the provisions on the

22 preservation of local zoning authority because it also

23 realized the need to protect State and local authority

24 to regulate the placement, construction, and modi25 fication of these facilities, with few limitations.
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1 (4) The limitations in the Act have forced

2 States and localities into needless litigation regard3 ing denials of facility applications. In some cases,

4 the courts have misinterpreted the intent of the limi5 tations in the Act on State and local authority, forc6 ing many States and localities to approve applica7 tions for construction of unsightly mammoth per8 sonal wireless service towers in their community.

9 (5) Many residents of States and local towns

10 have expressed concerns about the impact of per11 sonal wireless facilities and towers on property val12 ues, aesthetics, and the character of local commu13 nities.

14 (6) Many localities have refused to approve per15 sonal wireless service facility applications in response

16 to citizen concerns about the facility and tower im17 pacts on property values, aesthetics, and character

18 of the community.

19 (7) A specific limitation included in the section

20 332(c)(7)(B)(iii) of the Communications Act of

21 1934, as amended by the Telecommunications Act of

22 1996, provides that any decision by a state or local

23 government to deny a request to place, construct, or

24 modify personal wireless service facilities shall be in

25 writing and supported by ‘‘substantial evidence’’
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1 contained in the written record. The conference re2 port for the Telecommunications Act of 1996 de3 fined ‘‘substantial evidence contained in the written

4 record’’ as the traditional standard used for judicial

5 review of agency actions—more than a scintilla of

6 evidence but less than a preponderance.

7 (8) Denials of these personal wireless service fa8 cility applications have led to litigation in Federal

9 courts, sometimes resulting in federal judges over10 turning local zoning board decisions.

11 (9) The Federal courts are split on what con12 stitutes ‘‘substantial evidence’’ to uphold a local zon13 ing board’s decision to deny a permit for construc14 tion, placement, or modification of personal wireless

15 service facility.

16 (10) Some Federal courts have refused to ac17 knowledge citizen concerns about aesthetics or a de18 cline in property value as legitimate reasons for de19 nying a personal wireless service facility application,

20 holding that such concerns do not constitute ‘‘sub21 stantial evidence’’. See, e.g., APT Minneapolis, Inc.

22 v. City of Maplewood, 1998 WL 634224, at *5 (D.

23 Minn. Aug. 12, 1998) (concluding that ‘‘[c]ourts

24 construing the TCA have universally held that gen25 eral aesthetic considerations fail to meet the sub-
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1 stantial evidence test’’); Omnipoint Communications

2 Enterprises, Inc. v. Town of Amherst, N.H., Civil

3 No. 97–614–JD (D. N.H. Aug. 21, 1998) (stating

4 that ‘‘[a]lthough aesthetic considerations may be

5 properly taken into account by local governments in

6 some circumstances, they cannot be used to exclude

7 PWS towers entirely’’).

8 (11) Other Federal courts, however, have held

9 that local residents’ concerns about the personal

10 wireless service facility’s impact on aesthetics of the

11 community constitute ‘‘substantial evidence’’. See,

12 e.g., Cellular Telephone Co., v. Town of Oyster Bay,

13 1999 WL 35195, at *7 (2d Cir. Jan. 29, 1999)

14 (concluding that ‘‘aesthetics qualify as a permissible

15 ground for denial of a permit only if we can con16 clude that there was ‘more than a scintilla’ of evi17 dence . . . before the [Zoning] Board on the negative

18 visual impact of the cell cites’’); AT&T Wireless

19 PCS, Inc. v. City Council of the City of Virginia

20 Beach, 155 F.3d 423, 427–28 (4th Cir. 1998) (con21 cluding that testimony from citizens ‘‘demonstrating

22 concerns about the aesthetics of the towers and their

23 incompatibility with the residential character’’ of the

24 community ‘‘is more than enough to demonstrate the
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1 real, and surely reasonable, concerns animating the

2 democratically elected’’ city council’s decision).

3 (12) To provide the courts better guidance the

4 Telecommunications Act of 1996 must be amended

5 to clarify that the substantial evidence test may be

6 satisfied by testimony of local residents expressing

7 concerns about the impact of personal wireless serv8 ice facilities on aesthetics, property values, and the

9 character of residential neighborhoods. Such a legis10 lative change would not discriminate against per11 sonal wireless service providers or impede their at12 tempts to provide personal wireless services, but in13 stead would encourage providers and States and lo14 calities to work together to design towers, facilities,

15 or other feasible alternatives that do not intrude or

16 diminish the aesthetics of residential communities,

17 thus avoiding costly and protracted litigation.

18 SEC. 3. AMENDMENTS.

19 (a) SUBSTANTIAL EVIDENCE.—Section

20 332(c)(7)(B)(iii) of the Communications Act of 1934 (47

21 U.S.C. 332(c)(7)(B)(iii)) is amended by adding at the end

22 the following: ‘‘For purposes of this clause, the term ‘sub23 stantial evidence’ includes testimony by local residents ex24 pressing their concerns about the impact of personal wire-
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1 less service facilities on the aesthetics, property values,

2 and the character of the community.’’.

3 (b) BURDEN OF PROOF.—Section 332(c)(7)(B)(v) of

4 such Act is amended by inserting after the second sen5 tence the following: ‘‘In any such action in which a person

6 seeking to place, construct, or modify a tower facility is

7 a party, such person shall bear the burden of proof.’’.

Æ