Local zoning threatened by wireless industry bills

The telecommunications industry is working hard to get the Legislature to act quickly on legislation that would preempt municipal control over the siting of wireless antennas and equipment in Massachusetts.

The legislation would allow the industry to place antennas and equipment on any building or structure in any location in any community, and override any local zoning or provision or condition regarding such equipment.

The legislation has surfaced late in the legislative session and is advancing quickly through both the House and Senate.

The industry is pursuing the following two routes:

1. The Legislature’s Economic Development Bill. Last week, by a voice vote, the House attached industry-written language (sections 74 and 75) to its economic development bill (H. 4181), which was passed by the House and is now before the Senate. Senate leaders have pledged to propose their own economic development bill, and the wireless telecommunications companies are expected to work to attach the same language.

2. “An Act Upgrading Mobile Broadband Coverage in the Commonwealth” (S. 2183). This stand-alone bill, with language identical to Sections 74 and 75 of H. 4181, is now before the Senate Ways and Means Committee and could advance at any moment.

“S. 2183 and Sections 74 and 75 of H. 4181 would allow telecommunications companies to ‘collocate’ unlimited new antennas and equipment on any and all existing buildings and structures, regardless of the impact on neighborhoods or interference with public rights-of-ways,” said MMA Executive Director Geoff Beckwith.

“The legislation would allow all wireless telecommunications companies to install or upgrade wireless antennas and equipment on any building or structure in Massachusetts,” Beckwith continued. “These structures could include commercial or residential buildings, water towers, cell towers and even homes – with no effective local government authority to regulate. The telecom companies could ignore all municipal zoning provisions, ordinances and bylaws – including height limits, set-back requirements, or the ability to require aesthetic modifications to ensure the antennas and equipment blend in.

“Municipalities would also have no recourse to ensure that unused or abandoned facilities must be removed in the future. The wireless telecommunications provider would only need to comply with the state building code, which is a very low technical standard. … The legislation provides no role for the general public, and fails to recognize that citizens have a right to basic zoning protections that guarantee accountability on the part of developers.”

Under the proposed legislation, in order to obtain a “collocation” permit, a mobile broadband provider would merely need to submit an application to the appropriate issuing authority in a municipality, and the city or town would have just 90 calendar days to review and act upon the “collocation” application, and could only reject applications that fail to meet the state building code. Telecommunications companies could start the “90-day clock” by submitting incomplete applications, and would have up to 45 days to complete their submissions, leaving cities and towns with only 45 days to review a completed application. If a municipality does not complete its review 90 days from the start of the process, applicants could immediately go to court to compel the issuance of a license, short-circuiting the local process.

The following are some specific provisions of the legislation:

• No zoning ordinance or bylaw shall prohibit, regulate or restrict collocation of wireless facilities on existing structures in any way inconsistent with the legislation.

• The issuing authority of a city or town would be required to grant approval to all applications for the “collocation” of wireless antennas and equipment on any existing building or structure (except utility poles), as long as the application complies with the state building code.

• Cities and towns would be required to approve all applications to expand existing stand-alone cell towers (including monopoles), unless the proposals would increase the height or width of the tower by 10 percent or 20 feet (whichever is more), which means that the industry could take camouflaged antennas inside a monopole and attach a 20-foot wide antenna, and go up 20 feet, and communities would have no say.

• Communities would not be allowed to require companies to remove obsolete, abandoned or unused antennas and equipment.

• Communities would not be allowed to require a higher fee for reviewing an application than for other types of commercial applications, and fees for technical consulting would be capped at $1,000.

The 2012 federal “Spectrum Act” will implement a nationwide uniform process for the collocation of wireless antennas and equipment. The Federal Communications Commission is promulgating final regulations that will govern the build-out of the wireless telecommunications network, and it is expected that the FCC will give industry its goal of a time-limited expedited application process. The FCC’s rules are expected by September 2014.

The industry appears to be working at the state level out of concern that the FCC will give deference to local zoning rules and allow cities and towns to act in the public interest. In particular, the FCC could allow municipalities to have zoning provisions, ordinances and bylaws on height limits, set-back requirements, or the ability to require aesthetic modifications to ensure the antennas and equipment blend in.