Wireless Bylaw Report

8/14/2019 Wireless Bylaw Report

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Section 17 Bylaw

PERSONAL WIRELESSCOMMUNICATIONS FACILITIES

Evaluation and Recommendations

Report to the Medfield Planning Board

Submitted by

Wireless Communications Study Committee

25 February, 2010


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25 February, 2010 Section 17 Evaluation and Recommended Zoning Modifications table of contentsReport to the Planning Board from the Wireless Communications Study Committee

Table Of Contents

1 Background1.1 Current By-Law.........................................................................................................................1

1.1.1 IE District ............................................................................................................................11.1.2

Water Towers ....................................................................................................................1

1.1.3 Power Line Transmission Towers ....................................................................................2

1.2 Personal Wireless Communications Technology Evolution..................................................21.3 Current Allowed Locations are Inadequate to Meet Requirements......................................21.4 Compliance with FCC Requirements......................................................................................2

1.4.1 Telecommunications Act of 1934, as Amended 1996 ....................................................31.4.2 Declaratory Ruling 18 November, 2009 .......................................................................3

Timeframes ...................................................................................................................4Restricting Competitive Entry ......................................................................................4Requiring Zoning Variances ........................................................................................4

2 Recommended By-Law Modifications2.1 Allow Additional Locations.......................................................................................................6

2.1.1 Retain Currently Allowed Locations.................................................................................62.1.2 New Provisions for Additional Locations .........................................................................6Applicant Demonstration of Necessity ........................................................................6Priority of Preferred Locations and Facilities..............................................................7Removal ........................................................................................................................7

2.2 Modify Height, Setback and Visual Impact Regulations........................................................72.2.1 Height and Setback Restrict ions ......................................................................................82.2.2 Minimizing Negative Visual Impacts ................................................................................9

2.3 Public Health and Safety .........................................................................................................92.3.1 Inspections and Certification of Compliance .................................................................102.3.2 Preventing Unauthorized Access ...................................................................................10

2.4 Review of Section 17 References to Other By-Law Sections.............................................102.5 Section 5 Use Regulations .................................................................................................112.6 Streamlining the Zoning Decision Process...........................................................................11

2.6.1 Defining When and by Whom an Application is Filed ................................................11Definition of an Application ........................................................................................11Definition of an Applicant ...........................................................................................11Application Effective Date..........................................................................................12

2.6.2 Required Information for Applications............................................................................12Section 17.5 Overview ...............................................................................................12Site Plan Drawings and Photographs .......................................................................12Facility Plan Drawings, Photographs, Balloon Test, et al........................................12Applicants Future Plans ............................................................................................13

2.6.3 Provision for Professional Consultations.......................................................................132.6.4 Zoning Board Decision....................................................................................................13

Appendix

Section 17 Medfield Zoning By-Law With Recommended ModificationsSection 704 of the Telecommunications Act of 1996 - 47 USC 332(c)(7)FCC Declaratory Ruling 18 November, 2009A Local Government Officials Guide to Transmitting Antenna RF Emission Safety


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25 February, 2010 Section 17 Evaluation and Recommended Zoning Modifications page 1 of 15Report to the Planning Board from the Wireless Communications Study Committee

1 Background

This Report from the Wireless Communications Study Committee to the Planning Board is

intended for informational purposes only. The Committee offers this background

information as a service to interested Medfield residents, in an effort to provide context to

the recommended revisions to Section 17 of the By-Law. The recommendations and

associated explanations contained in this report are those of the Committee alone.

This Section provides perspectives about:

The current By-Law and how it has served the Town for the past ten years

How to reasonably accommodate evolving Personal Wireless CommunicationsFacilities requirements in Medfield

Shortcomings of the current By-Law

Complying with FCC (Federal Communications Commission) requirements fortimely actions on applications for Personal Wireless Communications Facilities

1.1 Current By-Law

The current By-Law passed by Town Meeting more than ten years ago has

successfully met Congressionally mandated requirements for accommodating

personal wireless communications facilities, while enabling the Town to use zoning

By-Laws to minimize negative impacts of wireless facility construction, including the

potential for new towers.1 This was accomplished by establishing specific locations

where Personal Wireless Communications Facilities are allowed to be constructed.

The current By-Law specifies:

limiting new tower construction to the IE (Industrial Extensive) district andto a specific area at the rear of the State Hospital property. as well as

establishing minimum spacing between such towers

allowing installation on two water towers Mount Nebo and the MedfieldState Hospital

allowing installation on electricity transmission towers along the Medfield /Walpole town line

1.1.1 IE District

A single free-standing Personal Wireless Communications Tower was constructed

along Route 27, just south of the Transfer Station, adjacent to Sam White and

Sons. This tower accommodates multiple wireless service providers. No other

free-standing Personal Wireless Communications Tower was constructed during

the past ten years.

1.1.2 Water TowersMultiple wireless service providers have been located on the Mount Nebo water

tower for the past ten years. Ten year leases are now coming up for renewal, and

indications are that most, if not all, will renew.

1The By-Law regulates Personal Wireless Facilities, which include the antennas that are mounted tostructures (buildings, pre-existing taller structures, and, potentially, new towers). Personal WirelessFacilities also include the ground equipment that operates the antennas, which can be placed in anexisting building, a new building or in outdoor cabinets.


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While the allowed locations included the water tower at Medfield State Hospital,

Commonwealth of Massachusetts bureaucratic complexities prevented this site

from being made available for the past ten years. Recent moves by the

Massachusetts Asset Management Board are expected to result in this site being

made available in the near future.

1.1.3 Power Line Transmission Towers

Personal Wireless Communications Facilities are currently installed and operating

on some of the electricity transmission towers along the Medfield / Walpole line.

1.2 Personal Wireless Communications Technology Evolution

While the original By-Law has served the Town well for more than ten years,

evolving personal wireless communications technology and associated public

demand for services linked to those new technologies require the Town to update

the By-Law.

Whereas mobile voice communication was the primary focus ten years ago, the

current focus emphasizes more advanced services multimedia messaging, internet

browsing, streaming video and audio, personal navigation with real-time traffic, on-line gaming, among others as well as increasing demand for in-home access to

wireless services2. These advanced services are not practicably satisfied by the few

centralized antenna sites that have fulfilled voice communication needs for the past

ten years. Rather, a distributed network of more antenna sites is required to meet the

demands of additional bandwidth and in-home access to advanced wireless services.

1.3 Current Allowed Locations are Inadequate to Meet Requirements

To support advanced Personal Wireless Services described above, technology

limitations require shorter spacing of antennas in a distributed network. This

distributed network cant be satisfied within the currently allowed locations.

More than ten years ago, the Committee evaluated coverage maps for supportingmobile voice communications, and established the current allowed locations. The

Committee has reevaluated coverage maps in light of advanced wireless services and

increased in-home wireless access requirements, and has concluded it is necessary to

allow additional locations to enable Personal Wireless Services providers to

reasonably supply these services in Medfield.

1.4 Compliance with FCC Requirements

With the enactment of the Telecommunications Act of 1996 (commonly referred to

as the Communications Act), the United States Congress limited state and local

governments ability to regulate the placement, construction and modification of

Personal Wireless Communication Facilities. Acting on the authority that the

Communications Act granted to the FCC, and in response to industry complaints thatit was taking too long to obtain local permits for wireless facilities, the FCC recently

published a Declaratory Ruling. The following two subsections outline these two key

2 Recent statistics published by a wireless industry organization, the CTIA, indicate that 70% of the non-voice service (data service) wireless communications originates indoors. Thirteen years of FederalCommunications Commission reports Annual Report and Analysis of Competitive Market ConditionsWith Respect to Commercial Mobile Services reinforce the fact that currently there continues to berapidly growing demand for in-home wireless voice and data services.


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issues that relate to state and local government regulation of the placement of

Personal Wireless Facilities. Full versions of the two documents referenced below

are included in the Appendix.

1.4.1 Telecommunications Act of 1934, as Amended 1996

The Telecommunications Act of 1934, established the regulatory scheme that gave

our FCC the authority to regulate the use of the public airwaves. An omnibus

amendment to the 1934 Act was passed in 1996. This amendment is officially

referred to as the Telecommunications Act of 19963. Together, the 1934 Act

and all amendments, including the Communications Act, are codified in the US

Code. The Communications Act is more than 100 pages long. Among other

things, it establishes that local authorities are still entitled to apply local zoning

codes to the placement of Personal Wireless Facilities, with a few exceptions.

Among those exceptions are:

Local zoning actions must not prohibit or effectively prohibit theprovision of personal wireless services

Aggrieved parties may sue in court if they feel a local decision has

effectively prohibited the provision of services

Local decisions on wireless facility zoning applications must be supportedby substantial evidence in a written record

Local zoning decisions must be in writing

The foregoing limitations are found in Title 47 of the US Code, specifically 47

USC 332(c)(7), the full text of which is included in the Appendix. Wireless

interests also refer to 47 USC Section 253, which addresses barriers to entry of

competitive telecommunications services. Both of these are referenced frequently

by the CTIA (originally an acronym for Cellular Telephone Industry Association,

now known simply as the Wireless Association) in their petition to the FCC, as

described below.

1.4.2 Declaratory Ruling 18 November, 2009

On 18 November, 2009, The FCC issued a declaratory ruling in response to a

Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to

Ensure Timely Siting Review and to Preempt Under Section 253 State and Local

Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance

filed by CTIA.

CTIAs petition requested clarifications about provisions in Sections 253 and

332(c)(7) of the Communications Act, regarding State and local review of

wireless facility site applications. The Petition raises three issues:

the timeframes in which zoning authorities must act on requests forwireless towers or antenna sites

state and local governments power to restrict competitive entry bymultiple providers in a given area

state and local governments requirement to obtain a variance, regardlessof the type and location of the proposal, before approving applications

3Telecommunications Act of 1996 1(a)


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Timeframes

As stated in the FCC ruling, one effect of this declaratory ruling is to define

what constitutes a presumptively reasonable period of time beyond which

inaction on a Personal Wireless Service Facility siting application will be

deemed a failure to act.4

Two timeframes have been established in the declaratory ruling one for newtowers, and one for collocations on existing structures. The FCC declaratory

ruling references another document to define collocation as the mounting or

installation of an antenna on an existing tower, building or structure for the

purpose of transmitting and/or receiving radio frequency signals for

communications purposes.5

New Towers

The FCC ruling establishes 150 days as a reasonable timeframe for state and

local governments to process applications other than collocations.6 As used in

this context, other than collocations refers to new tower constructions.

Collocation

The FCC ruling establishes 90 days as a reasonable timeframe for state andlocal governments to process collocation applications.7 Note that the

definition of collocation presented above is broad it includes buildings and

other structures, in addition to towers.

Failure to Act

The FCC ruling specifies failure to issue a decision within the above

timeframes constitutes a failure to act, entitling an Applicant to commence

a court action under Section 332(c)(7)(B)(v) of the Communications Act.8

Restricting Competitive Entry

The FCC ruling finds where a State or local government denies a personal

wireless service facility siting application solely because that service isavailable from another provider, such a denial violates Section

332(c)(7)(B)(i)(II).9

Requiring Zoning Variances

The FCC declaratory ruling denied the CTIA petition to preempt state and local

requirements for zoning variances under Section 253 of the Communications

Act.10 The FCCs denial effectively preserves state and local governments so-

called blanket variance ordinances. It is important to note, however, that the

FCC declaratory ruling leaves open the possibility of future consideration of

this zoning variance issue.

4Part I, paragraph 4, FCC Declaratory Ruling 18 November, 2009

547 C.F.R. Part 1, App. B Nationwide Programmatic Agreement for the Collocation of Wireless Antennas,Definitions, Subsection A

6Part IV, paragraph 71, FCC Declaratory Ruling 18 November, 2009

7Ibid

8Ibid

9Ibid

10Part III, Section D, paragraph 67, FCC Declaratory Ruling 18 November, 2009


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2 Recommended By-Law Modifications

Section 1 above provides the background for the Wireless Communications Study

Committees recommended By-Law modification presented below. Seven broad

recommendations are presented:

Allow carefully controlled additional locations for Personal Wireless Facilities

Modify zoning regulations to allow Zoning Board discretion when evaluatingApplications for special permits

Add public health and safety compliance requirements

Modify references to other sections of the By Law

Modify Section 5 Table of Use Regulation

Miscellaneous modifications to clarify and simplify

Streamline the zoning decision process to ensure compliance with new FCCtimeframes for Personal Wireless Facility Applications

The following subsections detail the Committees recommended modifications to the By-

Law. Where appropriate, explanations of the rationale for those recommended modifications

are presented. Additionally, the full text of the current Section 17 By-Law withrecommended revisions is included in the Appendix.

2.1 Allow Additional Locations

Section 1.3 above details the Committee's evaluations leading to its conclusion about

needing to allow additional locations in Medfield for Personal Wireless

Communications Facilities. The Committee specifically recommends retaining

current provisions for allowed Personal Wireless Facility sites, and establishing new,

more restrictive provisions for other areas.

2.1.1 Retain Currently Allowed Locations

The Committee recommends retaining all currently allowed locations, asdescribed above in Section 1.1, Current By-Law, beginning on page 1.

2.1.2 New Provisions for Additional Locations

Allowing Personal Wireless Communications Facilities to be sited in residential

and commercial zones requires modifying By-Laws to minimize impacts of these

Facilities on these areas.

Applicant Demonstration of Necessity

A key provision of 47 USC 332(c)(7) is that local rules shall not prohibit or

have the effect of prohibiting the provision of personal wireless services12 The

Committee recommends it is prudent to require an Applicant to demonstrate the

necessity of their proposed Personal Wireless Facility by specifying how denialof their Application would result in an effective prohibition of service.

The Committee proposes a new paragraph 17.3.7:

Personal Wireless Facilities shall be permitted outside of the areasidentified in Sections 17.3.1 and 17.3.2 only if an Applicant demonstratesthat such facilities are necessary to prevent an effective prohibition of the

12 Section 332(c)(7)(B)(i)(II)


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provision of Personal Wireless Services. Applicants for facilities outsideof the areas identified in Sections 17.3.1 and 17.3.2 must demonstratethat they have made maximum practicable utilization of the areasidentified in Sections 17.3.1 and 17.3.2 to serve all or portions of thearea that the proposed facility is intended to serve.

Priority of Preferred Locations and FacilitiesThe Committee proposes a new paragraph 17.3.8:

Applicants for Personal Wireless Facilities outside the areas identified inSections 17.3.1 and 17.3.2 shall demonstrate that their proposal is themost favored way that is practicable to facilitate the provision of PersonalWireless Service, according to the following order of pr iority, from mostfavored to least:

Regarding Facilities

1. Fully concealed Personal Wireless Facilities

2. Camouflaged Personal Wireless Facilities

Regarding Location:

1. Collocations in or on preexisting Personal Wireless Facilities

2. Collocations in or on preexisting structures with no preexistingPersonal Wireless Facility

3. New location for Personal Wireless Facility and associatedPersonal Wireless Tower

Removal

The Committee proposes modifications to paragraph 17.4.6, and to renumber it

paragraph 17.4.7:

Personal Wireless Towers shall be removed within one (1) year after

cessation of use by all Personal Wireless Services, whether or not thereare one or more Secondary Antennas on the tower. Personal WirelessAntennas shall be removed within one (1) year after cessation of use.As a condition of the Special Permit, the Board may require a suretybond or other security satisfactory to the Board to fund removal of anyand all components of a Personal Wireless Facility that is unused formore than 1 year, or is no longer under a valid permit. If an Applicantfails to comply with this requirement, the Town may enforce by enteringthe property and removing the ceased facility, which expenses shall bepaid to the Town by the Applicant or landowner within thirty days ofnotice by the Town. If such expenses are not paid in full, the Town mayimpose a lien on the property. In addition, Applicant or landowner shallbe liable for all expenses Town incurs in obtaining judicial enforcement ofthis subparagraph.

2.2 Modify Height, Setback and Visual Impact Regulations

As noted earlier in Section 1.4.1, on page 3, the Communications Act allows limited

ability for local governments to regulate personal wireless facilities. One factor that

is generally regarded as among the most significant over which local governments

have prerogative, is aesthetics. Recognizing this, the Committee recommends several

modifications to the By-Law that address aesthetic concerns.


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2.2.1 Height and Setback Restrictions

The Committee recommends retaining current height and setback specifications

for the IE District, and establish new specifications for areas other than the IE

District. The following modifications to Section 17.6 are recommended:

The Committee proposes splitting the current 17.6.1 into separate items for height

and setback. The setback requirements are moved to a new paragraph 17.6.4:In the IE District, a tower shall be set back a minimum of fifty (50) feet from anyproperty line. The Board may require greater setback if a benefit is achievedand it is practicable, as determined by the Board.

The Committee proposes modifying paragraph 17.6.1:

All Personal Wireless Towers shall be designed to stand at the minimum heightnecessary to accommodate planned use and anticipated shared use, ascertified at Applicants expense by a qualified engineer appointed or approvedby the Town. The Board may require a Personal Wireless Tower to beconstructed at one height, but with the structural capacity to be extended toanother height in the future.

The Committee proposes modifying 17.6.2 to specify only the IE district:In the IE District, Personal Wireless Tower with attached antenna(s) shall notexceed 150 feet in height above the lowest finished grade contacting the base.A maximum height with antenna(s) of 190 feet shall be allowed in the IE districtif the Applicant can make a significant showing that the low ground elevationprevents satisfactory performance of a proposed Personal Wireless Facility at150 feet and lower. A Personal Wireless Tower shall not be constructed on abuilding.

The Committee proposes adding a paragraph 17.6.5 to establish a maximum

height for Personal Wireless Towers in areas other than the IE District:

In districts other than the IE District, a Personal Wireless Tower shall be nomore than 100 feet above the undisturbed natural grade at the base of theTower.

The Committee proposes adding a paragraph 17.6.6 to establish minimum setback

requirements for Personal Wireless Towers in areas other than the IE District:

In districts other than the IE, the minimum distance from the base of anyground-mounted Personal Wireless Tower to any property line shall be 2 timesthe height of the facility/mount, including any antennas or other appurtenances.In addition, a minimum distance of 300 feet from any habitable dwelling isrequired. The aforementioned setback is measured from the nearest abuttingnon-applicant property, while the 300 foot distance is measured from thenearest non-applicant habitable dwelling.

The Committee proposes adding a paragraph 17.6.7 to address Personal Wireless

Facility installations on structures other than Personal Wireless Towers:

In the event that a preexisting structure is proposed as a mount for a PersonalWireless Facility, the setback provisions of the zoning district shall apply. Inthe case of preexisting nonconforming structures, Personal Wireless Facilities,including equipment shelters, shall not increase any nonconformities.


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2.2.2 Minimizing Negative Visual Impacts

Town Counsel, in collaboration with the Committee, advises a primary

discretionary control the town can exercise is in relation to aesthetics.


Personal Wireless Towers and Personal Wireless Facilities shall be

suitably screened from view to the maximum extent possible and/or bedesigned and placed in a manner that is compatible with surroundingland uses. All towers shall be of a design that minimizes the negativevisual and environmental impacts on the Town, as determined by theBoard.

To minimize the number of Towers needed to provide services to the Town, the

Committee proposes modifications to paragraph 17.6.3, and to renumber it

paragraph 17.6.9:

Personal Wireless Towers shall be designed to accommodate themaximum number of Personal Wireless Services practical. The intent ofthis requirement is to maximize shared use of towers and limit thenumber required to provide satisfactory and competitive Personal

Wireless Service in the Town. In evaluating the maximum numberpracticable, the Board shall determine whether or not an increase ordecrease in height of a proposed Personal Wireless Tower is justified tobalance the objectives of maximizing collocation and minimizing thevisual impact on the community.

To minimize the number of Towers needed to provide services to the Town, the

Committee proposes a new paragraph 17.5.4:

A description of how the proposed Personal Wireless Facility integrateswith preexisting Personal Wireless Facilities in and around Medfield;what current or future planned Personal Wireless Facilities the Applicantis pursuing in and around Medfield; and a description of how theApplicants network in and around Medfield will evolve based on market

trends, emerging technologies and the like.

2.3 Public Health and Safety

The Committee is sensitive to public concerns about health and safety associated

with Personal Wireless Facilities. The current By-Law addresses public safety in two

paragraphs:

17.5.3(c) requires Verification that the facility will be in compliance withfederal and state regulations as part of the Application process.

17.6.4 requires fencing to limit access to Personal Wireless Towers andPersonal Wireless Facilities.

Upon evaluation, the Committee has concluded that because there is no continuingobligation to verify compliance after initial approval, the current Section 17.5.3(c) is

inadequate to address public health and safety concerns. The Committee advises

adding an option for the Board to require periodic certification of compliance.

Additionally, allowing Personal Wireless Facilities in zoning districts outside of the

current allowed locations opens up the likelihood of Personal Wireless Facility

installations in/on public or semi-public buildings. The requirement in 17.6.4 for

fencing, however, is likely to be impractical for Personal Wireless Facilities located

in/on public or semi-public buildings. The Committee advises public health and


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safety concerns dictate that it is necessary to revise the By-Law to ensure applicants

will comply with federal and state requirements to prevent unauthorized access to

Personal Wireless Facilities in public and semi-public building installations.

2.3.1 Inspections and Certification of Compliance

Section 17.4.8 currently includes a provision for inspection and reporting

requirements established by the Inspector of Buildings for continuation of a

Special Permit.

The Committee recommends adding a new paragraph 17.4.9 to allow the Board an

option to require periodic recertification of compliance with Federal and State

regulations:

It shall be a requirement of any Special Permit issued under this Section thatat any reasonable time or interval the Board may require the Applicant todemonstrate that the emissions of i ts Personal Wireless Facility are incompliance with applicable federal and/or state safety requirements. Suchdemonstration shall be performed at Applicants expense by a qualifiedengineer appointed or approved by the Town.

The Committee recommends adding a new paragraph 17.4.10 to address theeventuality of non-compliance:

In the event that the Applicants Personal Wireless Facility is not incompliance with applicable state and federal emissions exposurerequirements, the Personal Wireless Facility operator shall immediately informthe Town about the non-compliance, and remedies being implemented tocorrect it. The Town reserves the right to require the Personal WirelessFacility to cease operations until the non-compliance is resolved.

2.3.2 Preventing Unauthorized Access

The Committee recommends modifying the current paragraph 17.6.4, and

renumbering it 17.6.10:

Fencing and/or other access control measures shall be employed to limitaccess to Personal Wireless Facilities, including Personal Wireless Towers,Personal Wireless Equipment, and Personal Wireless Antennas. Outdooraccess control measures (such as fencing) shall be compatible with thecharacter of the area in which they are installed and shall be approved by theBoard. In the Application, the Applicant shall provide a description of allindoor and outdoor access control measures planned for the proposedPersonal Wireless Facility.

2.4 Review of Section 17 References to Other By-Law Sections

The Committee reviewed Section 17 to determine what, if any, references to other

sections of the By-Law might need to be updated. The only such references of

potential concern were found in the current Section 17.4.1 of the By-Law, whichspecifically states that Section 6.2, Table of Area Regulation, and Section 14.10,

Special Permits by Board of Appeals, do not apply to Personal Wireless Towers or

Personal Wireless Facilities.

The current By-Law was put in place with the understanding that Personal Wireless

Towers and Facilities would be limited to those areas detailed above in Section 1.1,

Current By-Law, beginning on page 1. Given that the Committee is proposing to


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Application Effective Date

The Committee proposes a new paragraph 17.5.5:

The effective date of an Application for Special Permit shall be established asthe first full business day after receipt of an Application that meets therequirements defined in this By-Law.

2.6.2 Required Information for Applications

Section 17.5 of the current By-Law lists information required to be submitted with

an Application. To minimize delays in the evaluation process, the Committee

recommends requiring additional information to be submitted with an Application.

The Committee acknowledges that there is a balance to be achieved when

establishing Application requirements that will assist with processing Applications

too little information will slow down the process by requiring back-and-forth

requests for clarifications, while requiring too much information may

unnecessarily bog down the review process by the Town.

Section 17.5 Overview

The Committee proposes modifying the overview paragraph to Section 17.5:

All Applications for Personal Wireless Towers or Personal Wireless Facilitiesshall be made and filed in accordance with the requirements of the Board. Inaddition to filing requirements detailed in Section 14.10.1 of the Zoning By-Law, the following are required to be filed with an Application:

Site Plan Drawings and Photographs


A locus plan, which in printed form is of an appropriate scale showingelevation contours; all property lines, structures, and landscape featureswithin 500 feet; the proposed tower and/or accessory building, access way,

and fencing.

Facility Plan Drawings, Photographs, Balloon Test, et al


Design drawings showing the elevation and plan views of the proposedPersonal Wireless Facility and a photograph or rendition of outdoor views ofthe proposed Personal Wireless Tower, Personal Wireless Antennas or theenclosure(s) within which the antennas are concealed, Personal WirelessEquipment or fenced area, and/or Personal Wireless Facility AccessoryBuilding. Photographs of the proposed location from the property lines. TheBoard may request an Applicant to demonstrate the visual impact ofproposed installations by providing at Applicants expense one or more of thefollowing: a) sight-line drawings to specific locations identified by the Board;b) a visual demonstration of visibility in which a balloon, crane or otherrepresentative object shall be placed at the height of the proposed tower andat an alternative location on or off the proposed site as determined by theBoard; the date, time and location of such test shall be advertised, at theexpense of the Applicant; c) photographic simulations based on the resultsof a visual demonstration and prepared by a qualified individual; d) and othermeasures requested by the Board.


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Sections 17.3.1 and 17.3.2 only if an Applicant fulfills criteriadetailed in 17.3.7 of this Section.

17.7.1.2 Preference Hierarchy The Board shall approve an Applicationfor a Personal Wireless Facility only after an Applicant hasdemonstrated their proposal is the most favored choice, asdetailed in 17.3.8 of this Section.

17.7.1.3 Preexisting Structures The Board shall approve an Applicationfor a new or modified Personal Wireless Tower only aftersatisfactory showing by Applicant that preexisting structures andpreexisting Personal Wireless Towers cannot be used, asdescribed in 17.4.2 of this Section.

17.7.1.4 Tower Structure The Board shall approve an Application afterexercising discretion about the Personal Wireless Towerstructure type, as described in 17.4.3 of this Section.

17.7.1.5 Minimal Visual and Environmental Impact The Board shallapprove an Application only after determining the proposeddesign minimizes negative visual and environmental impact, asdescribed in 17.4.4 and 17.6.8 of this Section.

17.7.1.6 Tower Capacity The Board shall approve an application onlyafter receiving certification from Applicant to make the PersonalWireless Tower available to other Personal Wireless Services,as described in 17.4.5 of this Section, and after determining saidPersonal Wireless Tower is designed to accommodate themaximum number of Personal Wireless Services practical, asdescribed in 17.6.9 of this Section.

17.7.1.7 Noise Compliance The Board shall approve an Application onlyafter determining Applicant has demonstrated the proposedPersonal Wireless Facility will be compliant with noiseregulations as described in 17.4.11 of this Section.

17.7.1.8 Minimum Necessary Height The Board shall approve anApplication only after determining the proposed PersonalWireless Facility is designed for the minimum height necessary,subject to the considerations described in 17.6.1 of this Section.The Board may exercise discretion to modify setbacks under17.6.6 if the Board determines it would achieve a more desirableresult.

17.7.1.9 Area Regulation The Board shall approve an Application onlyafter confirming the proposed Personal Wireless Facilitycomplies with height requirements detailed in 17.6.2 and 17.6.3of this Section, and setback requirements detailed in 17.6.4,17.6.6 and 17.6.7 of this Section.

17.7.1.10 Access Control The Board shall approve an Application only

after approving proposed unauthorized access control methodsand associated visual impacts, as described in 17.6.10 of thisSection.

17.7.1.11 Signs The Board shall approve an Application only afterconfirming proposed signs conform with Section 13 of this By-Law, as described in 17.6.11 of this Section.


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17.7.1.12 Lighting The Board shall approve an Application with designsthat include lighting only after an Applicant demonstrates it isessential for safety, as described in 17.6.13 of this Section.

17.7.1.13 Parking The Board shall approve an Application only afterconfirming provisions for off-street parking, as described in17.6.14 of this Section.


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25 February, 2010 Section 17 Evaluation and Recommended Zoning Modifications AppendixReport to the Planning Board from the Wireless Communications Study Committee

Appendix

Section 17 Medfield Zoning By-Law With Recommended Modifications

Section 704 of the Telecommunications Act of 1996 - 47 USC 332(c)(7)

FCC Declaratory Ruling 18 November, 2009



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Section 17 Medfield Zoning By-Law With RecommendedModifications


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Section 17 By-Law With Proposed Revisions

page 1 of 9

SECTION 17

PERSONAL WIRELESS COMMUNICATIONS FACILITIES

17.1 PURPOSE

The purpose of these regulations is to promote the health, safety, convenience,and welfare of the inhabitants of Medfield, more specifically to minimizenegative visual impacts and preserve natural vistas by providing for controlled

placement and operation of certain Radio Communications facilities and towerswithin the Town. Placement is controlled by establishing a limited number of

permitted locations, minimizing the number and overall height of towers,encouraging shared use of structures, and limiting new construction to that

necessary to provide Personal Wireless Services.

17.2 DEFINITIONS

17.2.1 Radio Communications: All forms of communication which transmit radio

frequency or microwave signals.

17.2.2 Personal Wireless Service: Radio Communications services specificallyidentified by the FCC (Federal Communications Commission) as Personal

Wireless Services. Such services include cellular services, personalcommunications services, and enhanced specialized mobile radio services,among others.

17.2.3 Personal Wireless Facility: An arrangement of transmitting/receivingequipment, network interconnection equipment, and transmit/receiveantenna(s) operated by a Personal Wireless Service at one location thatprovides service to a geographic area.

17.2.4 Personal Wireless Facility Accessory Building: A structure designed tohouse Personal Wireless Equipment that is placed at a Personal WirelessTower or other Personal Wireless Facility.

17.2.5 Personal Wireless Tower: A self-supporting lattice structure, a monopole, orother structure erected for the primary purpose of supporting PersonalWireless Antennas at a Personal Wireless Facility.

17.2.6 Personal Wireless Antenna: A surface used to transmit and/or receivesignals between a Personal Wireless Facility and subscribers.

17.2.7 Secondary Antenna, Secondary Communications: Antennas andcommunications services which do not qualify as Personal Wireless andwhich may be supported on a secondary, subservient basis by a PersonalWireless Tower.

17.2.8 Personal Wireless Equipment: Apparatus employed by a provider of PersonalWireless Services strictly to operate a Personal Wireless Facility. Suchapparatus typically includes transmission/reception electronics, network

interconnection equipment, power supply equipment, and control andprocessing equipment.


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17.2.9 Application: A petition for a Special Permit for a Personal Wireless Facilitysubmitted by an Applicant to the Zoning Board of Appeals under the

auspices of this Section, and which fulfills all of the Zoning Board ofAppeals filing requirements defined in this By-Law.

17.2.10 Applicant: An entity authorized by the FCC to provide Personal Wireless

Services that files an Application, or is the holder of a Special Permitpursuant to this Section; if the Applicant is not the landowner, thelandowner(s) shall file as co-applicant(s).

17.3 LOCATION

17.3.1 Personal Wireless Facilities shall be permitted in the I-E zoning district eastof route 27 to West Mill Street and west of route 27, north of the railroadtracks on Town owned land; the B-I district at Medfield State Hospital; and

on the Town of Medfield water tower property at Mt. Nebo, only aftercompliance with all the provisions of this Section.

17.3.2 A Personal Wireless Tower shall be permitted in the I-E district east of route27 to West Mill Street and west of route 27, north of the railroad tracks onTown owned land; and at Medfield State Hospital in an area extending 150feet north from the rear of the present "R" building, only after compliance

with all the provisions of this Section. Secondary Antennas may be installedon a Personal Wireless Tower under the provisions of this Section.

17.3.3 Personal Wireless Equipment in the areas identified in Sections 17.3.1 and17.3.2 may be housed in or on preexisting structures, Personal Wireless

Facility Accessory Buildings, or weather resistant outdoor equipmentenclosures. Personal Wireless Antennas may be installed on preexisting

structures at these locations or on Personal Wireless Towers built for the

purpose. Secondary Antennas may be installed on a Personal WirelessTower under the provisions of this Section.

17.3.4 No Personal Wireless Tower in the IE District may be constructed withintwenty-five hundred (2500) feet of another Personal Wireless Tower. In theevent of conflicting Applications, the Zoning Board of Appeals (the

"Board") shall make a judgment as to which proposed Personal WirelessTower, if any, is most suitable.

17.3.5 Personal Wireless Towers may not be built for any purpose other than toprovide for Personal Wireless Services.

17.3.6 Personal Wireless Antennas may be installed on preexisting electrictransmission towers presently located on a Boston Edison utility easement in

the southeast quadrant of Town, provided that they do not exceed the presentheight of the utility tower by more than 30 feet, and only after compliance

with all provisions of this Section. Personal Wireless Equipment may besited on the utility easement to support the operation of such antennas.

17.3.7 Personal Wireless Facilities shall be permitted outside of the areas identifiedin Sections 17.3.1 and 17.3.2 only if an Applicant demonstrates that such


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facilities are necessary to prevent an effective prohibition of the provision of

Personal Wireless Services. Applicants for facilities outside of the areas

identified in Sections 17.3.1 and 17.3.2 must demonstrate that they have

made maximum practicable utilization of the areas identified in Sections

17.3.1 and 17.3.2 to serve all or portions of the area that the proposed facility

is intended to serve.17.3.8 Applicants for Personal Wireless Facilities outside the areas identified in

Sections 17.3.1 and 17.3.2 shall demonstrate that their proposal is the most

favored way that is practicable to facilitate the provision of Personal

Wireless Service, according to the following order of priority, from most

favored to least:

Regarding Facilities

1. Fully concealed Personal Wireless Facilities

2. Camouflaged Personal Wireless Facilities

Regarding Location:1. Collocations in or on preexisting Personal Wireless Facilities

2. Collocations in or on preexisting structures with no preexistingPersonal Wireless Facility

3. New location for Personal Wireless Facility and associated PersonalWireless Tower

17.4 GENERAL REQUIREMENTS

17.4.1 No Personal Wireless Facility or Personal Wireless Tower shall be erected orinstalled except in compliance with the provisions of this Section. In all

cases, a Special Permit is required from the Board. Section 6.2.1 ofthis By-

Law shall not apply to these Applications. Any proposed addition of aPersonal Wireless Service Provider to a preexisting Personal Wireless

Facility or Personal Wireless Tower, proposed increase in the height of a

tower, or in the number of antennas, or any construction or replacement of a

Personal Wireless Tower or Personal Wireless Facility Accessory Building

shall be subject to a new Application for a Special Permit.

17.4.2 Applicants for a new or modified Personal Wireless Tower must make ashowing satisfactory to the Board, that preexisting structures and preexisting

Personal Wireless Towers are not capable of providing adequate service to

those Personal Wireless Service carriers planning to use the tower.

17.4.3 Unless otherwise restricted in this Section, Personal Wireless Towers may beself-supporting monopoles, lattice towers, or other styles of support structure

and shall meet with the approval of the Board, subject to this Section and to

the requirement that no guy wires shall be used.

17.4.4 Personal Wireless Towers and Personal Wireless Facilities shall be suitablyscreened from view to the maximum extent possible and/or be designed and

placed in a manner that is compatible with surrounding land uses. All towers


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shall be of a design that minimizes the negative visual and environmentalimpacts on the Town, as determined by the Board.

17.4.5 Personal Wireless Towers shall be designed and constructed to support theantennas of multiple Personal Wireless Facilities. An Applicant for a

Special Permit to construct a Personal Wireless Tower shall certify to the

Town that it will reasonably and in good faith make the tower available toother Personal Wireless Services. Each installation of a Personal WirelessFacility shall require a Special Permit.

17.4.6 Secondary Communications and Secondary Antennas may be installed at aPersonal Wireless Tower such that they may be moved or removed to

accommodate the maximum number of additional Personal WirelessAntennas possible. The Personal Wireless Tower Special Permit Holder

shall apply to the Board for a Special Permit for such Secondaryinstallations, as if they were Personal Wireless Facilities.

17.4.7 Personal Wireless Towers shall be removed within one (1) year after

cessation of use by all Personal Wireless Services, whether or not there areone or more Secondary Antennas on the tower. Personal Wireless Antennasshall be removed within one (1) year after cessation of use. As a condition

of the Special Permit, the Board may require a surety bond or other securitysatisfactory to the Board to fund removal of any and all components of a

Personal Wireless Facility that is unused for more than 1 year, or is nolonger under a valid permit. If an Applicant fails to comply with this

requirement, the Town may enforce by entering the property and removingthe ceased facility, which expenses shall be paid to the Town by the

Applicant or landowner within thirty days of notice by the Town. If suchexpenses are not paid in full, the Town may impose a lien on the property.

In addition, Applicant or landowner shall be liable for all expenses Townincurs in obtaining judicial enforcement of this subparagraph.

17.4.8 Continuation of the Special Permit for a Personal Wireless Tower orPersonal Wireless Facility is subject to inspection and reportingrequirements established by the Inspector of Buildings.

17.4.9 It shall be a requirement of any Special Permit issued under this Section thatat any reasonable time or interval the Board may require the Applicant todemonstrate that the emissions of its Personal Wireless Facility are in

compliance with applicable federal and/or state safety requirements. Suchdemonstration shall be performed at Applicants expense by a qualified

engineer appointed or approved by the Town.17.4.10 In the event that the Applicants Personal Wireless Facility is not in

compliance with applicable state and federal emissions exposurerequirements, the Personal Wireless Facility operator shall immediately

inform the Town about the non-compliance, and remedies beingimplemented to correct it. The Town reserves the right to require the

Personal Wireless Facility to cease operations until the non-compliance isresolved.


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17.4.11 Applicants shall demonstrate to the Boards satisfaction that a proposedPersonal Wireless Facility will be compliant with any applicable noise

regulations of the Federal EPA (Environmental Protection Agency) andMassachusetts DEP (Department of Environmental Protection). Applicants

shall maintain compliance for the duration of the facilitys operation.

Compliance shall be determined by evaluating all noise sources from the siteof the Personal Wireless Facility(ies). In the event of non-compliance, theTown reserves the right to require the Personal Wireless Facility to ceaseoperations until the non-compliance is resolved.

17.5 APPLICATION PROCESS:

All Applications for Personal Wireless Towers or Personal Wireless Facilities

shall be made and filed in accordance with the requirements of the Board. Inaddition to filing requirements detailed in Section 14.10.1 of the Zoning By-

Law, the following are required to be filed with an Application:

17.5.1 A locus plan, which in printed form is of an appropriate scale, showing

elevation contours; all property lines, structures, and landscape featureswithin 500 feet; the proposed tower and/or accessory building, access way,and fencing.

17.5.2 Design drawings showing the elevation and plan views of the proposedPersonal Wireless Facility and a photograph or rendition of outdoor views ofthe proposed Personal Wireless Tower, Personal Wireless Antennas or the

enclosure(s) within which the antennas are concealed, Personal WirelessEquipment or fenced area, and/or Personal Wireless Facility Accessory

Building. Photographs of the proposed location from the property lines. TheBoard may request an Applicant to demonstrate the visual impact of

proposed installations by providing at Applicants expense one or more ofthe following: a) sight-line drawings to specific locations identified by the

Board; b) a visual demonstration of visibility in which a balloon, crane orother representative object shall be placed at the height of the proposed

tower and at an alternative location on or off the proposed site as determinedby the Board; the date, time and location of such test shall be advertised, at

the expense of the Applicant; c) photographic simulations based on theresults of a visual demonstration and prepared by a qualified individual; d)and other measures requested by the Board.

17.5.3 The following information prepared by one or more qualified individuals:

a. A description of the facility and/or tower proposed.

b. A description of the reasons the facility is proposed, the reason thelocation is proposed, and a rationale for the height proposed.

c. Verification that the facility will be in compliance with federal andstate regulations.

d. A description of tower capacity for additional Personal WirelessAntennas.

e. A description of site capacity for additional Personal WirelessFacilities.


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17.5.4 A description of how the proposed Personal Wireless Facility integrates withpreexisting Personal Wireless Facilities in and around Medfield; whatcurrent or future planned Personal Wireless Facilities the Applicant ispursuing in and around Medfield; and a description of how the Applicantsnetwork in and around Medfield will evolve based on market trends,

emerging technologies and the like.17.5.5 The effective date of an Application for Special Permit shall be established

as the first full business day after receipt of an Application that meets therequirements defined in this By-Law.

17.5.6 Submission of an Application for a Special Permit obligates the Applicant topay review expenses determined by the Board. Applications must include adeposit of $5,000 for each proposed Personal Wireless Facility, which fundswill be used to pay reasonable costs associated with the Boards review ofthe Application, including fees for outside consultants with expertise instructural engineering, wireless communications technology, wirelesscommunications law and other relevant fields of experience, as determinednecessary by the Board. If fees for such reviews exceed the amount of therequired deposit, the Board may request additional funds from the Applicant.Any unused funds will be returned to Applicant after approval, rejection orwithdrawal of Application.

17.6 DESIGN GUIDELINES

The following guidelines shall be used when preparing plans to site andconstruct any Personal Wireless Tower or Personal Wireless Facility.

17.6.1 All Personal Wireless Towers shall be designed to stand at the minimumheight necessary to accommodate planned use and anticipated shared use, as

certified at Applicants expense by a qualified engineer appointed orapproved by the Town. The Board may require a Personal Wireless Towerto be constructed at one height, but with the structural capacity to beextended to another height in the future.

17.6.2 In the IE District, a Personal Wireless Tower with attached antenna(s) shallnot exceed 150 feet in height above the lowest finished grade contacting thebase. A maximum height with antenna(s) of 190 feet shall be allowed in theIE District if the Applicant can make a significant showing that the lowground elevation prevents satisfactory performance of a proposed PersonalWireless Facility at 150 feet and lower. A Personal Wireless Tower shall notbe constructed on a building.

17.6.3 Personal Wireless Antennas may be mounted on preexisting structures in theallowed locations and districts. They shall be mounted no more than ten feetabove the roof-line or top surface of the preexisting structure. Mountinghardware extending vertically ten feet or less above a structure shall not beconsidered a tower in this Section. Consideration will be given to disguisingor concealing roof- or top-mounted antennas and hardware.


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17.6.4 In the IE District, a tower shall be set back a minimum of fifty (50) feet fromany property line. The Board may require greater setback if a benefit isachieved and it is practicable, as determined by the Board.

17.6.5 In districts other than the IE District, a Personal Wireless Tower shall be nomore than 100 feet above the undisturbed natural grade at the base of the

Tower.

17.6.6 In districts other than the IE, the minimum distance from the base of anyground-mounted Personal Wireless Tower to any property line shall be 2

times the height of the facility/mount, including any antennas or otherappurtenances. In addition, a minimum distance of 300 feet from any

habitable dwelling is required. The aforementioned setback is measuredfrom the nearest abutting non-applicant property, while the 300 foot distanceis measured from the nearest non-applicant habitable dwelling.

17.6.7 In the event that a preexisting structure is proposed as a mount for a PersonalWireless Facility, the setback provisions of the zoning district shall apply.

In the case of preexisting nonconforming structures, Personal WirelessFacilities, including equipment shelters, shall not increase anynonconformities.

17.6.8 All Personal Wireless Towers and Personal Wireless Facility AccessoryBuildings shall be sited and landscaped in such a manner that the view of

them from neighboring residences shall be as limited as possible. They shallbe colored in a manner that best blends in with the surroundings, subject toapproval of the Board.

17.6.9 Personal Wireless Towers shall be designed to accommodate the maximumnumber of Personal Wireless Services practical. The intent of this

requirement is to maximize shared use of towers and limit the numberrequired to provide satisfactory and competitive Personal Wireless Service inthe Town. In evaluating the maximum number practicable, the Board shall

determine whether or not an increase or decrease in height of a proposedPersonal Wireless Tower is justified to balance the objectives of maximizingcollocation and minimizing the visual impact on the community.

17.6.10 Fencing and/or other access control measures shall be employed to limitaccess to Personal Wireless Facilities, including Personal Wireless Towers,Personal Wireless Equipment, and Personal Wireless Antennas. Outdoor

access control measures (such as fencing) shall be compatible with thecharacter of the area in which they are installed and shall be approved by the

Board. In the Application, the Applicant shall provide a description of allindoor and outdoor access control measures planned for the proposedPersonal Wireless Facility.

17.6.11 Signs shall be limited to those required by federal or state regulation, andthose necessary to provide safety information or warnings. Signs shallconform with Section 13 of this By-Law.


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17.7.1.7 Noise Compliance The Board shall approve an Application only afterdetermining Applicant has demonstrated the proposed Personal

Wireless Facility will be compliant with noise regulations as describedin 17.4.11 of this Section.

17.7.1.8 Minimum Necessary Height The Board shall approve an Application

only after determining the proposed Personal Wireless Facility isdesigned for the minimum height necessary, subject to theconsiderations described in 17.6.1 of this Section.

17.7.1.9 Area Regulation The Board shall approve an Application only afterconfirming the proposed Personal Wireless Facility complies with

height requirements detailed in 17.6.2 and 17.6.3 of this Section, and

setback requirements detailed in 17.6.4, 17.6.6 and 17.6.7 of this

Section. The Board may exercise discretion to modify setbacks under17.6.6 if the Board determines it would achieve a more desirable result.

17.7.1.10 Access Control The Board shall approve an Application only after

approving proposed unauthorized access control methods andassociated visual impacts, as described in 17.6.10 of this Section.

17.7.1.11 Signs The Board shall approve an Application only after confirmingproposed signs conform with Section 13 of this By-Law, as describedin 17.6.11 of this Section.

17.7.1.12 Lighting The Board shall approve an Application with designs thatinclude lighting only after an Applicant demonstrates it is essential for

safety, as described in 17.6.13 of this Section.

17.7.1.13 Parking The Board shall approve an Application only afterconfirming provisions for off-street parking, as described in 17.6.14 of

this Section.

17.7.2 The Board may impose as a condition of the Special Permit a requirementfor periodic review of the minimum necessary height of the tower and may

require a reduction in the tower's height based upon the review.

17.8 INVALIDITY

In the event that any provision of this Section 17 shall be determined to be

invalid by a Court of competent jurisdiction or otherwise, the remaining

provisions of this Section 17 not manifestly inseparable from the invalid

provisions shall remain in full force and effect.


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Section 704 of the Telecommunications Act of 1996 - 47 USC 332(c)(7)


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[TELECOMMUNICATIONS ACT OF 1996] SEC. 704. FACILITIES SITING; RADIO

FREQUENCY EMISSION STANDARDS.

(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section332(c)(47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) PRESERVATION OF LOCAL ZONING AUTHORITY-

(A)GENERAL AUTHORITY- Except as provided in this paragraph, nothing in thisAct 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)LIMITATIONS-(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 requestfor 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 denya 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 theplacement, 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 Stateor 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.

(C)DEFINITIONS- For purposes of this paragraph--(i) the term `personal wireless services' means commercial mobile services,

unlicensed wireless services, and common carrier wireless exchange access

services;

(ii) the term `personal wireless service facilities' means facilities for the provisionof personal wireless services; and


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(iii) the term `unlicensed wireless service' means the offering oftelecommunications services using duly authorized devices which do not

require individual licenses, but does not mean the provision of direct-to-home

satellite services (as defined in section 303(v)).'.

(b) RADIO FREQUENCY EMISSIONS- Within 180 days after the enactment of this Act, the

Commission shall complete action in ET Docket 93-62 to prescribe and make effectiverules regarding the environmental effects of radio frequency emissions.

(c) AVAILABILITY OF PROPERTY- Within 180 days of the enactment of this Act, thePresident or his designee shall prescribe procedures by which Federal departments and

agencies may make available on a fair, reasonable, and nondiscriminatory basis, property,

rights-of-way, and easements under their control for the placement of new

telecommunications services that are dependent, in whole or in part, upon the utilization of

Federal spectrum rights for the transmission or reception of such services. These

procedures may establish a presumption that requests for the use of property, rights-of-way,

and easements by duly authorized providers should be granted absent unavoidable direct

conflict with the department or agency's mission, or the current or planned use of the

property, rights-of-way, and easements in question. Reasonable fees may be charged toproviders of such telecommunications services for use of property, rights-of-way, and

easements. The Commission shall provide technical support to States to encourage them to

make property, rights-of-way, and easements under their jurisdiction available for such

purposes.


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Federal Communications Commission FCC 09-99

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Petition for Declaratory Ruling to ClarifyProvisions of Section 332(c)(7)(B) to Ensure

Timely Siting Review and to Preempt UnderSection 253 State and Local Ordinances thatClassify All Wireless Siting Proposals as

Requiring a Variance

)

))

)

)

)

)

)

)

WT Docket No. 08-165

DECLARATORY RULING

Adopted: November 18, 2009 Released: November 18, 2009

By the Commission: Chairman Genachowski and Commissioners Copps, McDowell, Clyburn, and Bakerissuing separate statements.

TABLE OF CONTENTS

Heading Paragraph #

I. INTRODUCTION..................................................................................................................................1

II. BACKGROUND.................................................................................................................................... 6III. DISCUSSION....................................................................................................................................... 18

A. Authority to Interpret Section 332(c)(7) ........................................................................................20B. Time for Acting on Facility Siting Applications............................................................................27C. Prohibition of Service by a Single Provider...................................................................................54

D. Ordinances Requiring Variances ...................................................................................................66E. Other Issues....................................................................................................................................68

IV. CONCLUSION ....................................................................................................................................71V. ORDERING CLAUSES....................................................................................................................... 72APPENDIX - A

APPENDIX - B

I. INTRODUCTION

1. This Declaratory Ruling by the Commission promotes the deployment of broadband andother wireless services by reducing delays in the construction and improvement of wireless networks.

Wireless operators must generally obtain State and local zoning approvals before building wireless towersor attaching equipment to pre-existing structures. To encourage the expansion of wireless networks,

Congress has required these entities to act within a reasonable period of time on such requests.1 Inmany cases, delays in the zoning process have hindered the deployment of new wireless infrastructure.

2

147 U.S.C. 332(c)(7)(B)(ii).

2Seepara. 33, infra.


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2

Accordingly, today we define timeframes for State and local action on wireless facilities siting requests,

while also preserving the authority of States and localities to make the ultimate determination on localzoning and land use policies.

2. On July 11, 2008, CTIA The Wireless Association (CTIA) filed a petition requestingthat the Commission issue a Declaratory Ruling clarifying provisions in Sections 253 and 332(c)(7) of the

Communications Act of 1934, as amended (Communications Act), regarding State and local review ofwireless facility siting applications (Petition).3 The Petition raises three issues: the timeframes in whichzoning authorities must act on siting requests for wireless towers or antenna sites, their power to restrictcompetitive entry by multiple providers in a given area, and their ability to impose certain proceduralrequirements on wireless service providers. In this Declaratory Ruling, we grant the Petition in part anddeny it in part to ensure that both localities and service providers may have an opportunity to make their

case in court, as contemplated by Section 332(c)(7) of the Act.4

3. Wireless services are central to the economic, civic, and social lives of over 270 million

Americans.5 Americans are now in the transition toward increasing reliance on their mobile devices forbroadband services, in addition to voice services.

6Without access to mobile wireless networks, however,

consumers cannot receive voice and broadband services from providers. Providers continue to build outtheir networks to provide such services, and a crucial requirement for providing those services is

obtaining State and local governmental approvals for constructing towers or attaching transmittingequipment to pre-existing structures. While Section 332(c)(7) of the Communications Act preserves theauthority of State and local governments with respect to such approvals, Section 332(c)(7) also limitssuch State and local authority, thereby protecting core local and State government zoning functions whilefostering infrastructure build out.

4. The first part of this Declaratory Ruling concludes that we should define what is a

presumptively reasonable time beyond which inaction on a siting application constitutes a failure toact. In defining this timeframe, we have taken several measures to ensure that the reasonableness of thetime for action tak[es] into account the nature and scope of the siting request.7 In the event a State or

local government fails to act within the appropriate time period, the applicant is entitled to bring an actionin court under Section 332(c)(7)(B)(v) of the Communications Act, and the court will determine whether

the delay was in fact unreasonable under all the circumstances of the case. We conclude that the recordsupports setting the following timeframes: (1) 90 days for the review of collocation applications; and (2)150 days for the review of siting applications other than collocations.

5. In the second part of this decision, we find, as the Petitioner urges, that it is a violation ofSection 332(c)(7)(B)(i)(II) of the Communications Act for a State or local government to deny a personal

3 In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely

Siting Review and to Preempt under Section 253 State and Local Ordinances that Classify All Wireless Siting

Proposals as Requiring a Variance, WT Docket No. 08-165,Petition for Declaratory Ruling, filed July 11, 2008(Petition).

447 U.S.C. 332(c)(7).

5 Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report andAnalysis of Competitive Market Conditions With Respect to Mobile Wireless including Commercial Mobile

Services, WT Docket No. 09-66,Notice of Inquiry, 24 FCC Rcd 11357, 11358 2 (2009) (Mobile Wireless

Competition NOI);see also Fostering Innovation and Investment in the Wireless Communications Market, GNDocket No. 09-157, A National Broadband Plan For Our Future, GN Docket No. 09-51, Notice of Inquiry, 24 FCC

Rcd 11322 1 (2009) (Wireless communications is one of the most important sectors of our economy and one that

touches the lives of nearly all Americans.).

6Mobile Wireless Competition NOI, 24 FCC Rcd at 11358 2.

747 U.S.C. 332(c)(7)(B)(ii).


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3

wireless service facility siting application because service is available from another provider. Finally,

because we have not been presented with any evidence of a specific controversy, we deny the last part ofthe Petitioners request, that we find that a State or local regulation that requires a variance or waiver forevery wireless facility siting violates Section 253(a) of the Communications Act.

II. BACKGROUND

6. The Statute. Section 332(c)(7) of the Act is titled Preservation of Local ZoningAuthority, and it addresses the authority of a State or local government . . . over decisions regarding the

placement, construction, and modification of personal wireless service facilities.8 Personal wirelessservice facilities are defined in Section 332(c)(7)(C)(ii) as facilities for the provision of personal wireless

services,9

and personal wireless services are defined in Section 332(c)(7)(C)(i) as commercial mobileservices, unlicensed wireless services, and common carrier wireless exchange access services.

10

7. Subsection (A) states that nothing in the Act limits such authority except as provided inSection 332(c)(7).11 Subsection (B) identifies those limitations. Among other limitations, Clause (B)(i)states that [t]he regulation of the placement, construction, and modification of personal wireless service

facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have theeffect of prohibiting the provision of personal wireless services.12 Clause (B)(ii) requires the State or

local government to act on any request to place, construct, or modify personal wireless service facilitieswithin a reasonable period of time . . . taking into account the nature and scope of such request.13 Clause (B)(v) permits a person adversely affected by any final action or failure to act by the State or local

government to commence an action in court within 30 days after such final action or failure to act.14

8. Section 253 of the Communications Act contains provisions removing barriers to entry in

the provision of telecommunications services.15

Specifically, Section 253(a) states: No State or localstatute or regulation, or other State or local legal requirement, may prohibit or have the effect of

prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.16 Section 253(d) directs the Commission to preempt any State or local statute, regulation, or legalrequirement that it determines, after notice and an opportunity for public comment, violates Section

253(a).17

9. The Petition. The Petition contends that the ability to deploy wireless systems depends

upon the availability of sites for the construction of towers and transmitters. Before a wireless serviceprovider can use a site for a tower or add an antenna to a tower or other structure, zoning approval isgenerally required at the local level, and the local zoning approval process can be extremely time-

8 47 U.S.C. 332(c)(7)(A). Section 332(c)(7) appears in Appendix B in its entirety.

9 47 U.S.C. 332(c)(7)(C)(ii).

10 47 U.S.C. 332(c)(7)(C)(i). Unlicensed wireless service is defined as the offering of telecommunications

services using duly authorized devices which do not require individual licenses, but does not mean the provision of

direct-to-home satellite services (as defined in section 303(v)). 47 U.S.C. 332(c)(7)(C)(iii).

11 47 U.S.C. 332(c)(7)(A).

12 47 U.S.C. 332(c)(7)(B)(i).

13 47 U.S.C. 332(c)(7)(B)(ii).

14 47 U.S.C. 332(c)(7)(B)(v). In the case of an action or failure to act that is impermissibly based on the

environmental effects of radio frequency emissions pursuant to Section 332(c)(7)(B)(iv), a person adversely affected

may also petition the Commission for relief. Id.

15 47 U.S.C. 253.

16 47 U.S.C. 253(a).

17 47 U.S.C. 253(d).


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4

consuming.18 The Petition asserts that timely deployment of wireless facilities is essential to achieving

the Communications Acts public interest goals.19 According to the Petition, delays in the zoning processfor wireless facility siting applications are impeding those goals.

20The Petition asserts that Section

332(c)(7) of the Communications Act created a framework in which states and localities could make

zoning decisions subject to minimum federal standards both substantive and procedural as well asfederal judicial review.21 The Petition claims that those zoning authorities that do not act in a timely

manner are frustrating the goals of the Communications Act.22

10. Accordingly, the Petition first requests that the Commission eliminate an ambiguity thatCTIA contends currently exists in Section 332(c)(7)(B)(v) and clarify the time period in which a State orlocal zoning authority will be deemed to have failed to act on a wireless facility siting application.23 ThePetition requests that the Commission declare that the failure to render a final decision within 45 days of

a filing of a wireless siting application proposing to collocate on an existing facility constitutes a failure toact for purposes of Section 332(c)(7)(B)(v).24 Moreover, the Petition requests that the Commission

declare that the failure to render a final decision on any other, non-collocation wireless siting applicationwithin 75 days constitutes a failure to act for purposes of Section 332(c)(7)(B)(v).25 Relatedly, thePetition asks the Commission to find that, if a zoning authority fails to act within the above timeframes,

the application shall be deemed granted.26 Alternatively, the Petition requests that the Commission

establish a presumption under such circumstances that entitles an applicant to a court-ordered injunctiongranting the application unless the zoning authority can justify the delay.27

11. Second, the Petition requests that the Commission clarify that Section 332(c)(7)(B)(i)(II),which forbids State and local facility siting decisions that prohibit or have the effect of prohibiting the

provision of personal wireless services, bars zoning decisions that have the effect of preventing aspecific provider from providing service to a location.28 The Petitioner asserts that this provision prevents

a local zoning authority from denying an application based on one or more carriers already serving thegeographic area.29

12. Third, the Petition requests that the Commission preempt, under Section 253(a) of the

Communications Act,30

local ordinances and State laws that automatically require a wireless serviceprovider to obtain a variance before siting facilities.31

13. On August 14, 2008, the Wireless Telecommunications Bureau (WTB) requested

18 Petition at 4.

19Id. at 8-13. The public interest goals identified by the Petition include nationwide wireless communications

services for all Americans, universal service, advanced telecommunications services, broadband deployment,

spectrum build-out, and public safety and E911.

20Id. at 13.

21Id. at 18 (citing City of Ranchos Palos Verdes v. Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., concurring)).

22Id. at 19.

23Id. at 20-23.

24Id. at 24.

25Id. at 25-26.

26Id. at 27-29.

27Id. at 29-30.

28Id. at 30-35 (citing47 U.S.C. 332(c)(7)(B)(i)(II)).

29Id. at 31-34.

30 47 U.S.C. 253(a).

31 Petition at 35-37.


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comment on the Petition.32 After a brief extension, comments were due on September 29, 2008, and

replies were due on October 14, 2008.33 Hundreds of comments and replies were filed in response to thePublic Notice, including comments from wireless service providers, tower owners, local and Stategovernment entities, and airport authorities.34

14. Industry commenters generally support the Petition in all respects.35 They argue that the

Commission has the authority to interpret Section 332(c)(7)36

and that the Commissions definition of thereasonable timeframes for State and local governments to process facility siting applications will promotethe deployment of advanced networks, including broadband.37 Wireless providers assert that withoutdefined timeframes for State and local governments to process personal wireless service facility sitingapplications, they face undue delay in some localities.38 They further argue that timeframes are necessaryso that they know when they should seek redress from courts for State and local governments failure to

act in a timely manner.39 They claim that the Petitioners proposed timetables are fair and should be usedto define the reasonable period of time for State and local governments to process facility siting

applications in Section 332(c)(7)(B)(ii).40

15. State and local governments, as well as airport authorities, oppose the Petition. As aninitial matter, they contend that Congress gave the courts, rather than the Commission, the authority tointerpret Section 332(c)(7) of the Communications Act, and they cite statutory text and legislative history

in support of their contention.41 Thus, they contend that the Commission lacks the authority to determinewhat is a reasonable period of time and when a failure to act or a prohibition of service hasoccurred.

42State and local government commenters further argue that both reasonable period of time

and failure to act have clear meanings, and that Congress deliberately used these general terms to

32 Wireless Telecommunications Bureau Seeks Comment On Petition For Declaratory Ruling By CTIA The

Wireless Association To Clarify Provisions Of Section 332(c)(7)(B) To Ensure Timely Siting Review And To

Preempt Under Section 253 State And Local Ordinances That Classify All Wireless Siting Proposals As Requiring

A Variance, WT Docket No. 08-165,Public Notice , 23 FCC R

Wireless Bylaw Report

Documents