II

106TH CONGRESS

1ST SESSION S. 1538

To amend the Communications Act of 1934 to clarify State and local authority to regulate the placement, construction, and modification of broadcast

transmission and telecommunications facilities, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 5, 1999

Mr. LEAHY (for himself, Mr. JEFFORDS, Mrs. HUTCHISON, Mr. FEINGOLD,

and Mr. MOYNIHAN) introduced the following bill; which was read twice

and referred to the Committee on Commerce, Science, and Transportation

A BILL

To amend the Communications Act of 1934 to clarify State

and local authority to regulate the placement, construction, and modification of broadcast transmission and telecommunications facilities, and for other purposes.

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

3 SECTION 1. FINDINGS AND PURPOSES.

4 (a) FINDINGS.—Congress makes the following find5 ings:

6 (1) The placement of telecommunications facili7 ties near residential properties can greatly reduce
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1 the value of such properties, destroy the views from

2 such properties, and reduce substantially the desire

3 to live in the area.

4 (2) States and local governments should be able

5 to exercise control over the placement, construction,

6 and modification of such facilities through the use of

7 zoning, planned growth, and other land use regula8 tions relating to the protection of the environment

9 and public health, safety, and welfare of the commu10 nity.

11 (3) There are alternatives to the construction of

12 facilities to meet telecommunications and broadcast

13 needs, including, but not limited to, alternative loca14 tions, colocation of antennas on existing towers or

15 structures, towerless PCS-Over-Cable or PCS-Over16 Fiber telephone service, satellite television systems,

17 low-Earth orbit satellite communication networks,

18 and other alternative technologies.

19 (4) There are alternative methods of designing

20 towers to meet telecommunications and broadcast

21 needs, including the use of small towers that do not

22 require blinking aircraft safety lights, break skylines,

23 or protrude above tree canopies and that are camou24 flaged or disguised to blend with their surroundings,

25 or both.
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1 (5) On August 19, 1997, the Federal Commu2 nications Commission issued a proposed rule, MM

3 Docket No. 97–182, which would preempt the appli4 cation of State and local zoning and land use ordi5 nances regarding the placement, construction, and

6 modification of broadcast transmission facilities. It

7 is in the interest of the Nation that the Commission

8 not adopt this rule.

9 (6) It is in the interest of the Nation that the

10 memoranda opinions and orders and proposed rules

11 of the Commission with respect to application of cer12 tain ordinances to the placement of such towers

13 (WT Docket No. 97–192, ET Docket No. 93–62,

14 RM–8577, and FCC 97–303, 62 F.R. 47960) be

15 modified in order to permit State and local govern16 ments to exercise their zoning and land use authori17 ties, and their power to protect public health and

18 safety, to regulate the placement of telecommuni19 cations or broadcast facilities and to place the bur20 den of proof in civil actions, and in actions before

21 the Commission and State and local authorities re22 lating to the placement, construction, and modifica23 tion of such facilities, on the person or entity that

24 seeks to place, construct, or modify such facilities.
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1 (7) PCS-Over-Cable, PCS-Over-Fiber, and sat2 ellite telecommunications systems, including low3 Earth orbit satellites, offer a significant opportunity

4 to provide so-called ‘‘911’’ emergency telephone serv5 ice throughout much of the United States.

6 (8) According to the Comptroller General, the

7 Commission does not consider itself a health agency

8 and turns to health and radiation experts outside

9 the Commission for guidance on the issue of health

10 and safety effects of radio frequency exposure.

11 (9) The Federal Aviation Administration does

12 not have adequate authority to regulate the place13 ment, construction, and modification of tele14 communications facilities near airports or high-vol15 ume air traffic areas such as corridors of airspace

16 or commonly used flyways. The Commission’s pro17 posed rules to preempt State and local zoning and

18 land-use regulations for the siting of such facilities

19 will have a serious negative impact on aviation safe20 ty, airport capacity and investment, and the efficient

21 use of navigable airspace.

22 (10) The telecommunications industry and its

23 experts should be expected to have access to the best

24 and most recent technical information and should

25 therefore be held to the highest standards in terms
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1 of their representations, assertions, and promises to

2 governmental authorities.

3 (11) There has been a substantial effort by the

4 Federal Government to determine the effects of elec5 tric and magnetic fields on biological systems, as is

6 evidenced by the Electric and Magnetic Fields Re7 search and Public Information Dissemination

8 (RAPID) Program, which was established by section

9 2118 of the Energy Policy Act of 1992 (Public Law

10 102–486; 42 U.S.C. 13478). This five-year program,

11 which was coordinated by the National Institute of

12 Environmental Health Sciences and the Department

13 of Energy, examined the possible effects of electric

14 and magnetic fields on human health. Despite the

15 success of this program, there has been no similar

16 effort by the Federal Government to determine the

17 possible effects on human health of radio frequency

18 emissions associated with telecommunications facili19 ties. The RAPID program could serve as the excel20 lent model for a Federally-sponsored research

21 project.

22 (b) PURPOSES.—The purposes of this Act are as fol23 lows:

24 (1) To repeal certain limitations on State and

25 local authority regarding the placement, construc-
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1 tion, and modification of personal wireless service fa2 cilities and related facilities as such limitations arise

3 under section 332(c)(7) of the Communications Act

4 of 1934 (47 U.S.C. 332(c)(7)).

5 (2) To permit State and local governments—

6 (A) in cases where the placement, con7 struction, or modification of telecommunications

8 facilities and other facilities is inconsistent with

9 State and local regulations, laws, or decisions,

10 to require the use of alternative telecommuni11 cation or broadcast technologies when such al12 ternative technologies are available;

13 (B) to regulate the placement, modifica14 tion, and construction of such facilities so that

15 their placement, construction, or modification

16 will not interfere with the safe and efficient use

17 of public airspace or otherwise compromise or

18 endanger public safety; and

19 (C) to hold applicants for permits for the

20 placement, construction, or modification of such

21 telecommunications facilities, and providers of

22 services using such towers and facilities, ac23 countable for the truthfulness and accuracy of

24 representations and statements placed in the
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1 record of hearings for such permits, licenses, or

2 approvals.

3 SEC. 2. STATE AND LOCAL AUTHORITY OVER PLACEMENT,

4 CONSTRUCTION, AND MODIFICATION OF

5 TELECOMMUNICATIONS FACILITIES.

6 (a) REPEAL OF LIMITATIONS ON REGULATION OF

7 PERSONAL WIRELESS FACILITIES.—Section 332(c)(7)(B)

8 of the Communications Act of 1934 (47 U.S.C.

9 332(c)(7)(B)) is amended—

10 (1) in clause (i), by striking ‘‘thereof—’’ and all

11 that follows through the end and inserting ‘‘thereof

12 shall not unreasonably discriminate among providers

13 of functionally equivalent services.’’;

14 (2) by striking clause (iv);

15 (3) by redesignating clause (v) as clause (iv);

16 and

17 (4) in clause (iv), as so redesignated—

18 (A) in the first sentence, by striking ‘‘30

19 days after such action or failure to act’’ and in20 serting ‘‘30 days after exhaustion of any admin21 istrative remedies with respect to such action or

22 failure to act’’; and

23 (B) by striking the third sentence and in24 serting the following: ‘‘In any such action in

25 which a person seeking to place, construct, or
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1 modify a telecommunications facility is a party,

2 such person shall bear the burden of proof, re3 gardless of who commences the action.’’.

4 (b) PROHIBITION ON ADOPTION OF RULE REGARD5 ING PREEMPTION OF STATE AND LOCAL AUTHORITY

6 OVER BROADCAST TRANSMISSION FACILITIES.—Notwith7 standing any other provision of law, the Federal Commu8 nications Commission may not adopt as a final rule or

9 otherwise the proposed rule set forth in ‘‘Preemption of

10 State and Local Zoning and Land Use Restrictions on

11 Siting, Placement and Construction of Broadcast Station

12 Transmission Facilities’’, MM Docket No. 97–182, re13 leased August 19, 1997.

14 (c) AUTHORITY OVER PLACEMENT, CONSTRUCTION,

15 AND MODIFICATION OF OTHER TRANSMISSION FACILI16 TIES.—Part I of title III of the Communications Act of

17 1934 (47 U.S.C. 301 et seq.) is amended by adding at

18 the end the following:

19 ‘‘SEC. 337. STATE AND LOCAL AUTHORITY OVER PLACE20 MENT, CONSTRUCTION, AND MODIFICATION

21 OF TELECOMMUNICATIONS FACILITIES.

22 ‘‘(a) IN GENERAL.—Notwithstanding any other pro23 vision of this Act, no provision of this Act may be inter24 preted to authorize any person or entity to place, con25 struct, or modify telecommunications facilities in a man-
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1 ner that is inconsistent with State or local law, or contrary

2 to an official decision of the appropriate State or local gov3 ernment entity having authority to approve, permit, li4 cense, modify, or deny an application to place, construct,

5 or modify a tower, if alternate technology is capable of

6 delivering the broadcast or telecommunications signals

7 without the use of a tower.

8 ‘‘(b) AUTHORITY REGARDING PRODUCTION OF SAFE9 TY AND INTERFERENCE STUDIES.—No provision of this

10 Act may be interpreted to prohibit a State or local govern11 ment from—

12 ‘‘(1) requiring a person or entity seeking au13 thority to place, construct, or modify telecommuni14 cations facilities or broadcast transmission facilities

15 within the jurisdiction of such government to

16 produce—

17 ‘‘(A) environmental studies, engineering re18 ports, or other documentation of the compliance

19 of such facilities with radio frequency exposure

20 limits established by the Commission and com21 pliance with applicable laws and regulations

22 governing the effects of the proposed facility on

23 the health, safety, and welfare of local residents

24 in the community; and
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1 ‘‘(B) documentation of the compliance of

2 such facilities with applicable Federal, State,

3 and local aviation safety standards or aviation

4 obstruction standards regarding objects effect5 ing navigable airspace; or

6 ‘‘(2) refusing to grant authority to such person

7 to locate such facilities within the jurisdiction of

8 such government if such person fails to produce any

9 studies, reports, or documentation required under

10 paragraph (1).

11 ‘‘(c) CONSTRUCTION.—Nothing in this section may

12 be construed to prohibit or otherwise limit the authority

13 of a State or local government to ensure compliance with

14 or otherwise enforce any statements, assertions, or rep15 resentations filed or submitted by or on behalf of an appli16 cant with the State or local government for authority to

17 place, construct, or modify telecommunications facilities or

18 broadcast transmission facilities within the jurisdiction of

19 the State or local government.’’.

20 SEC. 3. ASSESSMENT OF RESEARCH ON EFFECTS OF RADIO

21 FREQUENCY EMISSIONS ON HUMAN HEALTH.

22 (a) ASSESSMENT.—The Secretary of Health and

23 Human Services shall carry out an independent assess24 ment on the effects of radio frequency emission on human

25 health. The Secretary shall carry out the independent as-
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1 sessment through grants to appropriate public and private

2 entities selected by the Secretary for purposes of the inde3 pendent assessment.

4 (b) AUTHORIZATION OF APPROPRIATIONS.—There

5 are hereby authorized to be appropriated for the Secretary

6 of Health and Human Services for fiscal year 2000,

7 $10,000,000 for purposes of grants for the independent

8 assessment required by subsection (a). Amounts appro9 priated pursuant to the authorization of appropriation in

10 the preceding sentence shall remain available until ex11 pended.

12 (c) The Secretary of Health and Human Services

13 shall produce a report on existing research evaluating the

14 biological effects to human health of short term, high-level,

15 as well as long-term, low-level exposures to radio frequency

16 emissions to Congress no later than January 1, 2001.

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