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, place-
ment, or modification of personal wireless service facili-
ties.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Local Zoning Preserva-
tion Act of 1999’’.
SEC. 2. FINDINGS AND PURPOSE.
(a) FINDINGS.—Congress makes the following find-
ings:
(1) In the Telecommunications Act of 1996,
Congress preserved local zoning authority over deci-
sions regarding the placement, construction and
modification of personal wireless service facilities,
except that (A) the zoning application must be acted
upon within a reasonable amount of time; (B) the
decision must be in writing and be supported by sub-
stantial evidence; (C) the decision must not be based
on concerns about the environmental effects of radio
frequency emissions from facilities; and (D) the
State or locality must not discriminate among per-
sonal wireless service providers.
(2) State and municipal zoning decisions tradi-
tionally have been afforded virtually complete def-
erence by Federal courts. Issues of land use are dis-
tinctly local and therefore fall on the State-side of
the federalism divide.
(3) When Congress passed the Telecommuni-
cations Act of 1996, it anticipated the need for and
proliferation of personal wireless service facilities.
Congress, however, included the provisions on the
preservation of local zoning authority because it also
realized the need to protect State and local authority
to regulate the placement, construction, and modi-
fication of these facilities, with few limitations.
(4) The limitations in the Act have forced
States and localities into needless litigation regard-
ing denials of facility applications. In some cases,
the courts have misinterpreted the intent of the limi-
tations in the Act on State and local authority, forc-
ing many States and localities to approve applica-
tions for construction of unsightly mammoth per-
sonal wireless service towers in their community.
(5) Many residents of States and local towns
have expressed concerns about the impact of per-
sonal wireless facilities and towers on property val-
ues, aesthetics, and the character of local commu-
nities.
(6) Many localities have refused to approve per-
sonal wireless service facility applications in response
to citizen concerns about the facility and tower im-
pacts on property values, aesthetics, and character
of the community.
(7) A specific limitation included in the section
332(c)(7)(B)(iii) of the Communications Act of
1934, as amended by the Telecommunications Act of
1996, provides that any decision by a state or local
government to deny a request to place, construct, or
modify personal wireless service facilities shall be in
writing and supported by ‘‘substantial evidence’’
contained in the written record. The conference re-
port for the Telecommunications Act of 1996 de-
fined ‘‘substantial evidence contained in the written
record’’ as the traditional standard used for judicial
review of agency actions—more than a scintilla of
evidence but less than a preponderance.
(8) Denials of these personal wireless service fa-
cility applications have led to litigation in Federal
courts, sometimes resulting in federal judges over-
turning local zoning board decisions.
(9) The Federal courts are split on what con-
stitutes ‘‘substantial evidence’’ to uphold a local zon-
ing board’s decision to deny a permit for construc-
tion, placement, or modification of personal wireless
service facility.
(10) Some Federal courts have refused to ac-
knowledge citizen concerns about aesthetics or a de-
cline in property value as legitimate reasons for de-
nying a personal wireless service facility application,
holding that such concerns do not constitute ‘‘sub-
stantial evidence’’. See, e.g., APT Minneapolis, Inc.
v. City of Maplewood, 1998 WL 634224, at *5 (D.
Minn. Aug. 12, 1998) (concluding that ‘‘[c]ourts
construing the TCA have universally held that gen-
eral aesthetic considerations fail to meet the sub-
stantial evidence test’’); Omnipoint Communications
Enterprises, Inc. v. Town of Amherst, N.H., Civil
No. 97–614–JD (D. N.H. Aug. 21, 1998) (stating
that ‘‘[a]lthough aesthetic considerations may be
properly taken into account by local governments in
some circumstances, they cannot be used to exclude
PWS towers entirely’’).
(11) Other Federal courts, however, have held
that local residents’ concerns about the personal
wireless service facility’s impact on aesthetics of the
community constitute ‘‘substantial evidence’’. See,
e.g., Cellular Telephone Co., v. Town of Oyster Bay,
1999 WL 35195, at *7 (2d Cir. Jan. 29, 1999)
(concluding that ‘‘aesthetics qualify as a permissible
ground for denial of a permit only if we can con-
clude that there was ‘more than a scintilla’ of evi-
dence . . . before the [Zoning] Board on the negative
visual impact of the cell cites’’); AT&T Wireless
PCS, Inc. v. City Council of the City of Virginia
Beach, 155 F.3d 423, 427–28 (4th Cir. 1998) (con-
cluding that testimony from citizens ‘‘demonstrating
concerns about the aesthetics of the towers and their
incompatibility with the residential character’’ of the
community ‘‘is more than enough to demonstrate the
real, and surely reasonable, concerns animating the
democratically elected’’ city council’s decision).
(12) To provide the courts better guidance the
Telecommunications Act of 1996 must be amended
to clarify that the substantial evidence test may be
satisfied by testimony of local residents expressing
concerns about the impact of personal wireless serv-
ice facilities on aesthetics, property values, and the
character of residential neighborhoods. Such a legis-
lative change would not discriminate against per-
sonal wireless service providers or impede their at-
tempts to provide personal wireless services, but in-
stead would encourage providers and States and lo-
calities to work together to design towers, facilities,
or other feasible alternatives that do not intrude or
diminish the aesthetics of residential communities,
thus avoiding costly and protracted litigation.
SEC. 3. AMENDMENTS.
(a) 
SUBSTANTIAL
EVIDENCE.—Section
332(c)(7)(B)(iii) of the Communications Act of 1934 (47
U.S.C. 332(c)(7)(B)(iii)) is amended by adding at the end
the following: ‘‘For purposes of this clause, the term ‘sub-
stantial evidence’ includes testimony by local residents ex-
pressing their concerns about the impact of personal wire-
less service facilities on the aesthetics, property values,
and the character of the community.’’.
(b) BURDEN OF PROOF.—Section 332(c)(7)(B)(v) of
such Act is amended by inserting after the second sen-
tence the following: ‘‘In any such action in which a person
seeking to place, construct, or modify a tower facility is
a party, such person shall bear the burden of proof.’’.
Æ