“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.” Section 704 of The Telecommunications Act of 1996
The U.S. Telecommunications Act of 1996 and the Spectrum Act of 2012 limit local government’s ability to place infrastructure for cellular communications and simultaneously facilitates industry deployment.
The Telecommunications Act of 1996: Deregulation and Consolidation
The Telecommunications Act of 1996 was the first major revision of the 62 year old Communications Act of 1934. The stated FCC goal of this restructuring of US Markets was to reduce the Monopoly AT&T had on the long distance market. The passage of the Telecom Act has however led to such significant deregulation that there is much more consolidation of radio and phone service with only a few carriers who essentially monopolize and control the industry with the help of a powerful industry association, CITA. The effort to pass the Telecom Act was led by the telecommunications industry and has incorporated protections for business, however, not for public or environmental health (nor for privacy or security).
Section 704 of the Telecommunications Act: Environment Dismissed
The language was codified in Section 704 of the Telecommunications Act, which prohibits environmental concerns (or health concerns by purported lack of substantial evidence) as a reason for denial of cell towers. This is despite growing awareness and scientific confirmation of both environmental and health effects from exposure to cell tower radiation and all radiofrequency wireless devices. Many are challenging this egregious policy. The National Environmental Policy Act (NEPA) can be used in some circumstances to deny cell towers.
According to the FCC
“The Telecommunications Act of 1996 is the first major overhaul of telecommunications law in almost 62 years. The goal of this new law is to let anyone enter any communications business — to let any communications business compete in any market against any other. The Telecommunications Act of 1996 has the potential to change the way we work, live and learn. It will affect telephone service — local and long distance, cable programming and other video services, broadcast services and services provided to schools. The Federal Communications Commission has a tremendous role to play in creating fair rules for this new era of competition.
Telecommunications Act of the 104th Congress, January 3, 1996
To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies….
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) (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) (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 instrumentality thereof to deny a request to 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.
1996 Telecommunications Act: Failure from Deregulation
With the removal of the EPA from the task of setting safe exposure limits for wireless radiofrequency radiation in 1995 and the passage of the expansive dystopian Telecommunications Act a year later there has been deregulation and monopolization of the Industry. This has not brought the promised lowering of long distance rates or increase in competition among carriers. Just the opposite has occurred. Currently about 90% of the media’s major media companies are owned by just 6 corporations. Powerful telecomm lobbyists with seemingly limitless financial resources have manipulated the system to their benefit for decades.
The Case to Break Up Big Telecom (& Big Cable): Let’s just call it Break Up AT&T et al…. Again. April 8, 2021. Bruce Kushnick. https://kushnickbruce.medium.com/the-case-to-break-up-big-telecom-big-cable-b36876c958ba
EPA States in 2002 That Safety Data and IEEE Safety Guidelines Insufficient
A response to an inquiry about the safety of radio frequency radiation with non thermal or long term exposure, Janet Newton received this letter from the EPA in 2002 which states, “The FCC’s current [radio frequency/microwave] exposure guidelines, as well as those of the Institute of Electrical and Electronics Engineers (IEEE) and the International Commission on Non-ionizing Radiation Protection, are thermally based, and do not apply to chronic, non-thermal exposure situations…. The generalization by many that the guidelines protect human beings from harm by any or all mechanisms is not justified…. There are reports that suggest that potentially adverse health effects, such as cancer, may occur…. Federal health and safety agencies have not yet developed policies concerning possible risk from long-term, non-thermal exposures.”
The letter further states
“Federal health and safety agencies have not yet developed policies concerning possible risk from long-term, nonthermal exposures. When developing exposure standards for other physical agents such as toxic substances, health risk uncertainties, with emphasis given to sensitive populations, are often considered. Incorporating information on exposure scenarios involving repeated short duration/nonthermal exposures that may continue over very long periods of time (years), with an exposed population that includes children, the elderly, and people with various debilitating physical and medical conditions, could be beneficial in delineating appropriate protective exposure guidelines.” The EPA had been working on setting guidelines for long term and non-thermal exposures prior to Telecommunications Act of 1996. EPA 1995 Letter to FCC
Common Cause has listed some of the provisions in the Telecommunications Act which have led to higher rates, consolidation and loss of competition.
- Lifted the limit on local TV stations and radio stations any one corporation could own from 12 TV stations and 40 radio stations. These changes allowed huge media mergers and greatly increased media concentration, e.g. the creation of radio goliaths such as Clear Channel, with more than 1,200 stations and Sinclair Broadcasting Corporation with 233 local television stations, reaching 40% of households. Digital Robber Barons? New York Times 2002
- Increased audience reach from a previous maximum of 25% of U.S. households
- Deregulated cable rates, allowing rates to skyrocket
- Permitted the Federal Communications Commission to ease rules on cable-broadcast cross-ownership. Ninety percent of the top 50 cable stations are owned by the same parent companies that own the broadcast networks, underscoring on that cable is any real source of competition.
- The act also gave away the first TV digital broadcast stations for free. This was worth billions of dollars.
- The Act extended the term of a broadcast license from five to eight years.
- The Act authorized the FCC E rate program to expand broadband in schools and libraries.
- Section 202( h) , buried in the text states “the Commission shall repeal or modify any regulation it determines to be no longer in the public interest.”
The Federal Communications Commission: A Captured Agency
“Captured agencies are essentially controlled by the industries they are supposed to regulate.…the entire system is greased by the free flow of executive leadership between the FCC and the industries it presumably oversees.” Norm Alster, Captured Agency
The Federal Communications Commission, an independent government agency created in 1934 to regulate interstate communications by radio, television, wire, satellite and cable, has become a captured agency with telecommunications leaders predictably filling the government seats in a revolving door fashion similar to other agencies.
Norm Alter in his well-researched publication “Captured Agency” writes,
“Industry control, in the case of wireless health issues, extends beyond Congress and regulators to basic scientific research. And in an obvious echo of the hardball tactics of the tobacco industry, the wireless industry has backed up its economic and political power by stonewalling on public relations and bullying potential threats into submission with its huge standing army of lawyers. In this way, a coddled wireless industry intimidated and silenced the City of San Francisco, while running roughshod over local opponents of its expansionary infrastructure.”
The Spectrum Act of 2012
The Spectrum Act, is an added section of the Payroll Deduction Act and called the Middle Class Tax Relief and Job Creation Act of 2012,
This Act facilitates the telecommunications industry’s rapid deployment of wireless infrastructure by requiring local governments to approve any application by a carrier that asks to modify and existing cellular communication structure that does not “substantially change” the existing facility. Section 6409 states cities ““may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” (47 U.S.C. § 1455(a)(1).) Section 6409 defines “eligible facilities request” as “any request for modification of an existing wireless tower or base station that involves –
(a) collocation of new transmission equipment;
(b) removal of transmission equipment; or
(c) replacement of transmission equipment.”
It is important to note that although each cell tower has FCC limitations on radiation emitted, each additional antenna is allowed the same level again. This means higher radiation is allowed with no upper limit of radiation levels or number of unsightly antennas.
Section 6409 (Wireless Facilities Deployment) of the Middle Class Tax Relief and Job Creation Act of 2012
(a) FACILITY MODIFICATIONS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.
(b) FEDERAL EASEMENTS AND RIGHTS-OF-WAY.
(1) GRANT. If an executive agency, a State, a political subdivision or agency of a State, or a person, firm, or organization applies for the grant of an easement or right-of-way to, in, over, or on a building or other property owned by the Federal Government for the right to install, construct, and maintain wireless service antenna structures and equipment and backhaul transmission equipment, the executive agency having control of the building or other property may grant to the applicant, on behalf of the Federal Government, an easement or right-of-way to perform such installation, construction, and maintenance.
(2) APPLICATION. The Administrator of General Services shall develop a common form for applications for easements and rights-of-way under paragraph (1) for all executive agencies that shall be used by applicants with respect to the buildings or other property of each such agency.
(A) IN GENERAL. Notwithstanding any other provision of law, the Administrator of General Services shall establish a fee for the grant of an easement or right-of-way pursuant to paragraph (1) that is based on direct cost recovery.
(B) EXCEPTIONS. The Administrator of General Services may establish exceptions to the fee amount required under subparagraph (A) —
(i) in consideration of the public benefit provided by a grant of an easement or right-of-way; and
(ii) in the interest of expanding wireless and broadband coverage.
(4) USE OF FEES COLLECTED. Any fee amounts collected by an executive agency pursuant to paragraph (3) may be made available, as provided in appropriations Acts, to such agency to cover the costs of granting the easement or right-of-way.
(c) MASTER CONTRACTS FOR WIRELESS FACILITY SITINGS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 or any other provision of law, and not later than 60 days after the date of the enactment of this Act, the Administrator of General Services shall—
(A) develop 1 or more master contracts that shall govern the placement of wireless service antenna structures on buildings and other property owned by the Federal Government; and
(B) in developing the master contract or contracts, standardize the treatment of the placement of wireless service antenna structures on building rooftops or facades, the placement of wireless service antenna equipment on rooftops or inside buildings, the technology used in connection with wireless service antenna structures or equipment placed on Federal buildings and other property, and any other key issues the Administrator of General Services considers appropriate.
(2) APPLICABILITY. The master contract or contracts developed by the Administrator of General Services under paragraph (1) shall apply to all publicly accessible buildings and other property owned by the Federal Government, unless the Administrator of General Services decides that issues with respect to the siting of a wireless service antenna structure on a specific building or other property warrant nonstandard treatment of such building or other property.
(3) APPLICATION. The Administrator of General Services shall develop a common form or set of forms for wireless service antenna structure siting applications under this subsection for all executive agencies that shall be used by applicants with respect to the buildings and other property of each such agency.
(d) EXECUTIVE AGENCY DEFINED. In this section, the term ‘‘executive agency’’ has the meaning given such term in section 102 of title 40, United States Code.
Articles and Books
Captured Agency: How the Federal Communications Commission Is Dominated by the Industries It Presumably Regulates. Norm Alster. Harvard University Center for Ethics. http://ethics.harvard.edu/files/center-for-ethics/files/capturedagency_alster.pdf
Rich Media, Poor Democracy: Communication Politics in Dubious Times. 2000. The author gives a meticulously researched history of media and provides a vision to restore media democracy. Robert W. Mc Chesney. https://thenewpress.com/books/rich-media-poor-democracy
Lessons from 1996 Telecommunications Act: Deregulation Before Meaningful Competition Spells Disaster. Consumers Union. 2000. https://consumersunion.org/pdf/lesson.pdf
Democracy in Peril: Twenty Years of Media Consolidation Under the Telecommunications Act. https://truthout.org/articles/democracy-in-peril-twenty-years-of-media-consolidation-under-the-telecommunications-act/
The Copper-Wire World of AT&T: The Reason to Investigate AT&T, Now. Huffington Post. 9/4/17. https://www.huffingtonpost.com/entry/the-copper-wire-world-of-att-the-reason-to-investigate_us_59adac5de4b0bef3378cda83
The Book of Broken promises. Bruce Kushnik. Feb 2015. New Networks Institute. http://irregulators.org/wp-content/uploads/2017/05/BookofBrokenPromises.pdf
An audacious 5G power (pole) grab. LA Times. July 5, 2017. http://www.latimes.com/opinion/editorials/la-ed-power-pole-grab-20170705-story.html