[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1538 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1538

  To amend the Communications Act of 1934 to clarify State and local 
authority to regulate the placement, construction, and modification of 
broadcast transmission and telecommunications facilities, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 5, 1999

Mr. Leahy (for himself, Mr. Jeffords, Mrs. Hutchison, Mr. Feingold, and 
 Mr. Moynihan) introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
  To amend the Communications Act of 1934 to clarify State and local 
authority to regulate the placement, construction, and modification of 
broadcast transmission and telecommunications facilities, and for other 
                               purposes.

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

SECTION 1. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) The placement of telecommunications facilities near 
        residential properties can greatly reduce the value of such 
        properties, destroy the views from such properties, and reduce 
        substantially the desire to live in the area.
            (2) States and local governments should be able to exercise 
        control over the placement, construction, and modification of 
        such facilities through the use of zoning, planned growth, and 
        other land use regulations relating to the protection of the 
        environment and public health, safety, and welfare of the 
        community.
            (3) There are alternatives to the construction of 
        facilities to meet telecommunications and broadcast needs, 
        including, but not limited to, alternative locations, 
        colocation of antennas on existing towers or structures, 
        towerless PCS-Over-Cable or PCS-Over-Fiber telephone service, 
        satellite television systems, low-Earth orbit satellite 
        communication networks, and other alternative technologies.
            (4) There are alternative methods of designing towers to 
        meet telecommunications and broadcast needs, including the use 
        of small towers that do not require blinking aircraft safety 
        lights, break skylines, or protrude above tree canopies and 
        that are camouflaged or disguised to blend with their 
        surroundings, or both.
            (5) On August 19, 1997, the Federal Communications 
        Commission issued a proposed rule, MM Docket No. 97-182, which 
        would preempt the application of State and local zoning and 
        land use ordinances regarding the placement, construction, and 
        modification of broadcast transmission facilities. It is in the 
        interest of the Nation that the Commission not adopt this rule.
            (6) It is in the interest of the Nation that the memoranda 
        opinions and orders and proposed rules of the Commission with 
        respect to application of certain ordinances to the placement 
        of such towers (WT Docket No. 97-192, ET Docket No. 93-62, RM-
        8577, and FCC 97-303, 62 F.R. 47960) be modified in order to 
        permit State and local governments to exercise their zoning and 
        land use authorities, and their power to protect public health 
        and safety, to regulate the placement of telecommunications or 
        broadcast facilities and to place the burden of proof in civil 
        actions, and in actions before the Commission and State and 
        local authorities relating to the placement, construction, and 
        modification of such facilities, on the person or entity that 
        seeks to place, construct, or modify such facilities.
            (7) PCS-Over-Cable, PCS-Over-Fiber, and satellite 
        telecommunications systems, including low-Earth orbit 
        satellites, offer a significant opportunity to provide so-
        called ``911'' emergency telephone service throughout much of 
        the United States.
            (8) According to the Comptroller General, the Commission 
        does not consider itself a health agency and turns to health 
        and radiation experts outside the Commission for guidance on 
        the issue of health and safety effects of radio frequency 
        exposure.
            (9) The Federal Aviation Administration does not have 
        adequate authority to regulate the placement, construction, and 
        modification of telecommunications facilities near airports or 
        high-volume air traffic areas such as corridors of airspace or 
        commonly used flyways. The Commission's proposed rules to 
        preempt State and local zoning and land-use regulations for the 
        siting of such facilities will have a serious negative impact 
        on aviation safety, airport capacity and investment, and the 
        efficient use of navigable airspace.
            (10) The telecommunications industry and its experts should 
        be expected to have access to the best and most recent 
        technical information and should therefore be held to the 
        highest standards in terms of their representations, 
        assertions, and promises to governmental authorities.
            (11) There has been a substantial effort by the Federal 
        Government to determine the effects of electric and magnetic 
        fields on biological systems, as is evidenced by the Electric 
        and Magnetic Fields Research and Public Information 
        Dissemination (RAPID) Program, which was established by section 
        2118 of the Energy Policy Act of 1992 (Public Law 102-486; 42 
        U.S.C. 13478). This five-year program, which was coordinated by 
        the National Institute of Environmental Health Sciences and the 
        Department of Energy, examined the possible effects of electric 
        and magnetic fields on human health. Despite the success of 
        this program, there has been no similar effort by the Federal 
        Government to determine the possible effects on human health of 
        radio frequency emissions associated with telecommunications 
        facilities. The RAPID program could serve as the excellent 
        model for a Federally-sponsored research project.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To repeal certain limitations on State and local 
        authority regarding the placement, construction, and 
        modification of personal wireless service facilities and 
        related facilities as such limitations arise under section 
        332(c)(7) of the Communications Act of 1934 (47 U.S.C. 
        332(c)(7)).
            (2) To permit State and local governments--
                    (A) in cases where the placement, construction, or 
                modification of telecommunications facilities and other 
facilities is inconsistent with State and local regulations, laws, or 
decisions, to require the use of alternative telecommunication or 
broadcast technologies when such alternative technologies are 
available;
                    (B) to regulate the placement, modification, and 
                construction of such facilities so that their 
                placement, construction, or modification will not 
                interfere with the safe and efficient use of public 
                airspace or otherwise compromise or endanger public 
                safety; and
                    (C) to hold applicants for permits for the 
                placement, construction, or modification of such 
                telecommunications facilities, and providers of 
                services using such towers and facilities, accountable 
                for the truthfulness and accuracy of representations 
                and statements placed in the record of hearings for 
                such permits, licenses, or approvals.

SEC. 2. STATE AND LOCAL AUTHORITY OVER PLACEMENT, CONSTRUCTION, AND 
              MODIFICATION OF TELECOMMUNICATIONS FACILITIES.

    (a) Repeal of Limitations on Regulation of Personal Wireless 
Facilities.--Section 332(c)(7)(B) of the Communications Act of 1934 (47 
U.S.C. 332(c)(7)(B)) is amended--
            (1) in clause (i), by striking ``thereof--'' and all that 
        follows through the end and inserting ``thereof shall not 
        unreasonably discriminate among providers of functionally 
        equivalent services.'';
            (2) by striking clause (iv);
            (3) by redesignating clause (v) as clause (iv); and
            (4) in clause (iv), as so redesignated--
                    (A) in the first sentence, by striking ``30 days 
                after such action or failure to act'' and inserting 
                ``30 days after exhaustion of any administrative 
                remedies with respect to such action or failure to 
                act''; and
                    (B) by striking the third sentence and inserting 
                the following: ``In any such action in which a person 
                seeking to place, construct, or modify a 
                telecommunications facility is a party, such person 
                shall bear the burden of proof, regardless of who 
                commences the action.''.
    (b) Prohibition on Adoption of Rule Regarding Preemption of State 
and Local Authority Over Broadcast Transmission Facilities.--
Notwithstanding any other provision of law, the Federal Communications 
Commission may not adopt as a final rule or otherwise the proposed rule 
set forth in ``Preemption of State and Local Zoning and Land Use 
Restrictions on Siting, Placement and Construction of Broadcast Station 
Transmission Facilities'', MM Docket No. 97-182, released August 19, 
1997.
    (c) Authority Over Placement, Construction, and Modification of 
Other Transmission Facilities.--Part I of title III of the 
Communications Act of 1934 (47 U.S.C. 301 et seq.) is amended by adding 
at the end the following:

``SEC. 337. STATE AND LOCAL AUTHORITY OVER PLACEMENT, CONSTRUCTION, AND 
              MODIFICATION OF TELECOMMUNICATIONS FACILITIES.

    ``(a) In General.--Notwithstanding any other provision of this Act, 
no provision of this Act may be interpreted to authorize any person or 
entity to place, construct, or modify telecommunications facilities in 
a manner that is inconsistent with State or local law, or contrary to 
an official decision of the appropriate State or local government 
entity having authority to approve, permit, license, modify, or deny an 
application to place, construct, or modify a tower, if alternate 
technology is capable of delivering the broadcast or telecommunications 
signals without the use of a tower.
    ``(b) Authority Regarding Production of Safety and Interference 
Studies.--No provision of this Act may be interpreted to prohibit a 
State or local government from--
            ``(1) requiring a person or entity seeking authority to 
        place, construct, or modify telecommunications facilities or 
        broadcast transmission facilities within the jurisdiction of 
        such government to produce--
                    ``(A) environmental studies, engineering reports, 
                or other documentation of the compliance of such 
                facilities with radio frequency exposure limits 
                established by the Commission and compliance with 
                applicable laws and regulations governing the effects 
                of the proposed facility on the health, safety, and 
                welfare of local residents in the community; and
                    ``(B) documentation of the compliance of such 
                facilities with applicable Federal, State, and local 
                aviation safety standards or aviation obstruction 
                standards regarding objects effecting navigable 
                airspace; or
            ``(2) refusing to grant authority to such person to locate 
        such facilities within the jurisdiction of such government if 
        such person fails to produce any studies, reports, or 
        documentation required under paragraph (1).
    ``(c) Construction.--Nothing in this section may be construed to 
prohibit or otherwise limit the authority of a State or local 
government to ensure compliance with or otherwise enforce any 
statements, assertions, or representations filed or submitted by or on 
behalf of an applicant with the State or local government for authority 
to place, construct, or modify telecommunications facilities or 
broadcast transmission facilities within the jurisdiction of the State 
or local government.''.

SEC. 3. ASSESSMENT OF RESEARCH ON EFFECTS OF RADIO FREQUENCY EMISSIONS 
              ON HUMAN HEALTH.

    (a) Assessment.--The Secretary of Health and Human Services shall 
carry out an independent assessment on the effects of radio frequency 
emission on human health. The Secretary shall carry out the independent 
assessment through grants to appropriate public and private entities 
selected by the Secretary for purposes of the independent assessment.
    (b) Authorization of Appropriations.--There are hereby authorized 
to be appropriated for the Secretary of Health and Human Services for 
fiscal year 2000, $10,000,000 for purposes of grants for the 
independent assessment required by subsection (a). Amounts appropriated 
pursuant to the authorization of appropriation in the preceding 
sentence shall remain available until expended.
    (c) The Secretary of Health and Human Services shall produce a 
report on existing research evaluating the biological effects to human 
health of short term, high-level, as well as long-term, low-level 
exposures to radio frequency emissions to Congress no later than 
January 1, 2001.
                                 <all>