Summer 1997

Since You Asked . . .

We had some unanswered questions from the June 4, 1997, audio conference, Responding to and Planning for Telecommunications. As promised the questions are answered in this newsletter. Due to space constraints we are not able to provide answers for all of the questions asked. We will provide more questions and answers in an upcoming issue.

Can a county invoke a building moratorium on cell towers under the federal act? If so, what are the provisions? (Submitted by Kevin Costello, Boone County Planning Commission, Burlington, Kentucky)

Utilization of a building moratorium on cell facilities raises difficult issues. The Telecommunications Act of 1996 does not directly address the imposition of a moratorium on cellular facilities. Instead, it prohibits restrictions that discriminate among providers of similarly situated services or that prohibit or have the effect of prohibiting the provision of wireless services. In addition, the act requires that decisions on wireless applications be made within a reasonable time following the request. Only one federal court has addressed the moratorium issue thus far. The case is Sprint Spectrum v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996), decided by the Federal District Court for the Western District of Washington State. That court upheld the use of a moratorium by the city in planning for cellular tower deployment within its jurisdiction. Three quick things to be careful of with a moratorium: First, Medina's purposes were clear from its legislation and included some of the purposes of the Telecommunications Act itself, such as guaranteeing competition to all competitors; second, Medina was making demonstrable progress on developing its standards while the moratorium was in place; and third, the moratorium was initiated soon after the enactment of the Telecom-munications Act. This last point is important because licensees, who have paid the federal government handsomely for the right to develop their services, may now be nearing the end of their allotted "buildout" periods--the time they have to complete a certain percentage of their wireless service network. Imposing a moratorium near the end of the buildout may be more likely to draw cries of "foul" from the wireless community, especially if the moratorium endangers their license.

(Response by: Robert A. Heverly, Assistant Director, Government Law Center of Albany Law School, Albany, New York)