Local Regulations

FCC regulations limit local governments' ability to deny or significantly alter the installation of wireless facilities. This can lead to local governments feeling powerless to act against the proliferation of such installations if they meet federal standards. Local regulations are subject to legal challenges, especially if they are perceived to conflict with federal laws and FCC regulations, which generally emphasize the rapid deployment of telecommunications infrastructure. 

While Section 704 essentially prevents local authorities from denying a cell tower installation based on health and environmental grounds, it does not completely preempt all local regulation. In other words, local authorities do have the authority to regulate the placement, construction, and modification of cell towers based on other factors including land use, aesthetics and public safety, such that they do not effectively prohibit wireless service.

Even so, when you go to your local government you’re likely to hear: “I’m sorry. Our hands are tied. Why don’t you write to your member of Congress? It’s a federal thing. There’s nothing we can do.” This retort generally relates to federal regulations that limit local government's power to control the deployment of wireless infrastructure, but there may also be personal and financial factors at play:

• Risk of Legal Challenges: Remember that your local leaders may have been heavily lobbied by telecommunications interests. Many planning commissioners, city council members, and supervisors on county boards may fear they will be sued if they do not go along with federal and state laws encouraging the 5G buildout. Telecom companies are well-resourced and can litigate to enforce their FCC-granted rights.

• Economic Considerations: There's also the economic aspect where local governments balance community concerns with the benefits of enhanced connectivity and potential new investments that telecom infrastructure brings.

Wireless Zoning Ordinance

While federal regulations limit local governments' ability to outright ban wireless facilities, a well-crafted wireless zoning ordinance allows local governments to exercise their rights within those limits. A wireless zoning ordinance is a crucial tool for local governments when it comes to regulating, denying, or significantly altering the installation of wireless facilities such as cell towers. The significance of this ordinance lies in its ability to establish clear guidelines and standards that govern the placement, construction, and modification of wireless infrastructure within a community. It outlines the rules that wireless providers must follow, giving local governments the authority to enforce these rules.

Landmark Court Decision

It may be helpful to engage local leaders using some of the language from the D.C. Circuit Court of Appeals judgment in favor of Children’s Health Defense and against the FCC. This may make community efforts to improve local ordinances somewhat easier in the following way: if local leaders understand that we are not living under an umbrella of safety when it comes to the radiation emitted from cell towers, they may be more willing to listen to well-reasoned and well-organized efforts to amend local zoning ordinances. Safety is a very important issue that belongs to municipalities to regulate. 

On Aug. 13, 2021, the D.C. Circuit Court of Appeals found that the FCC failed to consider the non-cancer evidence regarding adverse health effects of wireless technology. The court held that the FCC had failed to consider, much less address, the vast amount of scientific literature regarding the ubiquitous wireless environment and the cumulative effect of exposure from multiple RF sources, the effects of sophisticated modulation and pulsation, the particular vulnerabilities of children, the negative impacts on nature and wildlife and how RF exposure impacts the brain and nervous system, contributes to male infertility, electrosensitivity, oxidative stress and DNA damage. 

The court admonished the FCC for setting the majority of the regulatory limits in an “arbitrary and capricious” manner. It is extremely rare for the courts to criticize a federal agency or commission in this way. 

From pages 9 and 10 of the Majority Opinion: 

Under this highly deferential standard of review, we find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer. (As we explain below, we find that the Commission offered an adequate explanation for its determination that exposure to RF radiation at levels below the Commission’s current limits does not cause cancer.) That failure undermines the Commission’s conclusions regarding the adequacy of its testing procedures, particularly as they relate to children, and its conclusions regarding the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, and the implications of technological developments that have occurred since 1996, all of which depend on the premise that exposure to RF radiation at levels below its current limits causes no negative health effects. Accordingly, we find those conclusions arbitrary and capricious as well. Finally, we find the Commission’s order arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation.