[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 952 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 952

To amend the Telecommunications Act of 1996 to preserve State and local 
authority over the construction, placement, or modification of personal 
                      wireless service facilities.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 3, 1999

   Mr. Bass introduced the following bill; which was referred to the 
                         Committee on Commerce

_______________________________________________________________________

                                 A BILL


 
To amend the Telecommunications Act of 1996 to preserve State and local 
authority over the construction, placement, or modification of personal 
                      wireless service facilities.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Local Zoning Preservation Act of 
1999''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) In the Telecommunications Act of 1996, Congress 
        preserved local zoning authority over decisions regarding the 
        placement, construction and modification of personal wireless 
        service facilities, except that (A) the zoning application must 
        be acted upon within a reasonable amount of time; (B) the 
        decision must be in writing and be supported by substantial 
        evidence; (C) the decision must not be based on concerns about 
        the environmental effects of radio frequency emissions from 
        facilities; and (D) the State or locality must not discriminate 
        among personal wireless service providers.
            (2) State and municipal zoning decisions traditionally have 
        been afforded virtually complete deference by Federal courts. 
        Issues of land use are distinctly local and therefore fall on 
        the State-side of the federalism divide.
            (3) When Congress passed the Telecommunications Act of 
        1996, it anticipated the need for and proliferation of personal 
        wireless service facilities. Congress, however, included the 
        provisions on the preservation of local zoning authority 
        because it also realized the need to protect State and local 
        authority to regulate the placement, construction, and 
        modification of these facilities, with few limitations.
            (4) The limitations in the Act have forced States and 
        localities into needless litigation regarding denials of 
        facility applications. In some cases, the courts have 
        misinterpreted the intent of the limitations in the Act on 
        State and local authority, forcing many States and localities 
        to approve applications for construction of unsightly mammoth 
        personal wireless service towers in their community.
            (5) Many residents of States and local towns have expressed 
        concerns about the impact of personal wireless facilities and 
        towers on property values, aesthetics, and the character of 
        local communities.
            (6) Many localities have refused to approve personal 
        wireless service facility applications in response to citizen 
        concerns about the facility and tower impacts on property 
        values, aesthetics, and character of the community.
            (7) A specific limitation included in the section 
        332(c)(7)(B)(iii) of the Communications Act of 1934, as amended 
        by the Telecommunications Act of 1996, provides that any 
        decision by a state or local government to deny a request to 
        place, construct, or modify personal wireless service 
        facilities shall be in writing and supported by ``substantial 
        evidence'' contained in the written record. The conference 
report for the Telecommunications Act of 1996 defined ``substantial 
evidence contained in the written record'' as the traditional standard 
used for judicial review of agency actions--more than a scintilla of 
evidence but less than a preponderance.
            (8) Denials of these personal wireless service facility 
        applications have led to litigation in Federal courts, 
        sometimes resulting in federal judges overturning local zoning 
        board decisions.
            (9) The Federal courts are split on what constitutes 
        ``substantial evidence'' to uphold a local zoning board's 
        decision to deny a permit for construction, placement, or 
        modification of personal wireless service facility.
            (10) Some Federal courts have refused to acknowledge 
        citizen concerns about aesthetics or a decline in property 
        value as legitimate reasons for denying a personal wireless 
        service facility application, holding that such concerns do not 
        constitute ``substantial evidence''. See, e.g., APT 
        Minneapolis, Inc. v. City of Maplewood, 1998 WL 634224, at *5 
        (D. Minn. Aug. 12, 1998) (concluding that ``[c]ourts construing 
        the TCA have universally held that general aesthetic 
        considerations fail to meet the substantial evidence test''); 
        Omnipoint Communications Enterprises, Inc. v. Town of Amherst, 
        N.H., Civil No. 97-614-JD (D. N.H. Aug. 21, 1998) (stating that 
        ``[a]lthough aesthetic considerations may be properly taken 
        into account by local governments in some circumstances, they 
        cannot be used to exclude PWS towers entirely'').
            (11) Other Federal courts, however, have held that local 
        residents' concerns about the personal wireless service 
        facility's impact on aesthetics of the community constitute 
        ``substantial evidence''. See, e.g., Cellular Telephone Co., v. 
        Town of Oyster Bay, 1999 WL 35195, at *7 (2d Cir. Jan. 29, 
        1999) (concluding that ``aesthetics qualify as a permissible 
        ground for denial of a permit only if we can conclude that 
        there was `more than a scintilla' of evidence . . . before the 
        [Zoning] Board on the negative visual impact of the cell 
        cites''); AT&T Wireless PCS, Inc. v. City Council of the City 
        of Virginia Beach, 155 F.3d 423, 427-28 (4th Cir. 1998) 
        (concluding that testimony from citizens ``demonstrating 
        concerns about the aesthetics of the towers and their 
        incompatibility with the residential character'' of the 
        community ``is more than enough to demonstrate the real, and 
        surely reasonable, concerns animating the democratically 
        elected'' city council's decision).
            (12) To provide the courts better guidance the 
        Telecommunications Act of 1996 must be amended to clarify that 
        the substantial evidence test may be satisfied by testimony of 
        local residents expressing concerns about the impact of 
        personal wireless service facilities on aesthetics, property 
        values, and the character of residential neighborhoods. Such a 
        legislative change would not discriminate against personal 
        wireless service providers or impede their attempts to provide 
        personal wireless services, but instead would encourage 
        providers and States and localities to work together to design 
        towers, facilities, or other feasible alternatives that do not 
        intrude or diminish the aesthetics of residential communities, 
        thus avoiding costly and protracted litigation.

SEC. 3. AMENDMENTS.

    (a) Substantial Evidence.--Section 332(c)(7)(B)(iii) of the 
Communications Act of 1934 (47 U.S.C. 332(c)(7)(B)(iii)) is amended by 
adding at the end the following: ``For purposes of this clause, the 
term `substantial evidence' includes testimony by local residents 
expressing their concerns about the impact of personal wireless service 
facilities on the aesthetics, property values, and the character of the 
community.''.
    (b) Burden of Proof.--Section 332(c)(7)(B)(v) of such Act is 
amended by inserting after the second sentence the following: ``In any 
such action in which a person seeking to place, construct, or modify a 
tower facility is a party, such person shall bear the burden of 
proof.''.
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