Health issues and the shot clock

The measure that currently is getting the most attention is a 2009 FCC ruling that implemented a 180-day "shot clock" for local jurisdictions to address applications for zoning of wireless facilities, such as towers. That's because a case filed by Arlington, Va., and other local government entities has reached the highest level of the judicial system, with the question being whether the FCC has jurisdiction to establish such a rule.

Oral arguments on the case were heard by the U.S. Supreme Court last month, and a decision is expected to be announced this summer. Meanwhile, the impact of the shot-clock edict has been mixed, according to Michael Higgs, an attorney for Shulman, Rogers, Pordy, Gandal & Ecker that represents primarily enterprises with LMR networks.

"I know it's been sort of hit or miss," Higgs said. "[In places] where it used to be fairly easy to get towers through anyway, they've done a great job of going with the mandate of the shot clock. [But] we're seeing pushback in those jurisdictions where it was really hard to get zoning [for antenna sites] in the first place."

Seybold echoed this sentiment, saying that the shot clock has had minimal positive impact with certain entities. He noted that the FCC's shot-clock ruling only requires the local entity to take action and does not guarantee approval.

"What the county says to an AT&T or Verizon is, 'We know we've got the shot clock imposed on us by the federal government. So, you either agree to postpone it [the request], or we'll take action and you won't like it.' So, the shot clock is basically useless.

"I don't know how many government agencies do that. But, if AT&T, Verizon, Sprint or T-Mobile is faced with the fact that they might get a negative ruling unless they agree to a continuance, then they agree to a continuance."

More helpful has been a section of federal legislation enacted last year that is designed to streamline the site-approval process in situations in which additional antennas are put on an existing wireless site, as opposed to a proposal to build a new facility, Higgs said.

"It said that municipalities basically cannot get involved in applications for collocations on existing facilities, so that really did a number on any municipalities trying to stand in the way of collocations that don't dramatically alter the physical appearance or dimension of antenna sites," he said. "I think that has been the biggest help to the siting industry in a while, as far as having a practical effect that we haven't quite seen from the shot clock yet."

For years, one of the most repeated arguments in opposition to wireless facilities was that energy from radio signals transmitted from a site created health risks for people living near the facility. But current federal rules effectively remove the health argument as a legitimate reason for a jurisdiction to deny approval for a wireless site.

Although health issues cannot be cited officially, the perceived health concerns still contribute to the opposition that wireless operators may face before local elected officials.

"The health issues really underlie a lot of the NIMBY opposition," Higgs said. "Even if you don't see that in writing, you often have that current underlying the opposition to these new tower projects."