[Congressional Record Volume 145, Number 114 (Thursday, August 5, 1999)]
[Senate]
[Pages S10458-S10460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Jeffords, Mrs. Hutchison, Mr. 
        Feingold, and Mr. Moynihan):
  S. 1538. 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; to the Committee on Commerce, 
Science, and Transportation.


                 telecommunications towers legislation

  Mr. LEAHY. Mr. President, it is going on two years since I first 
submitted comments to the Federal Communications Commission regarding 
their proposed rules to preempt State and local governments in the 
placement and construction of telecommunications towers. Close to two 
years later, I am still working to ensure that the voice of States and 
local governments are heard in the continuing fight over 
telecommunications tower construction.
  I am proud to be joined by Senators Jeffords, Hutchison, Feingold, 
and Moynihan in introducing legislation which will mandate that states 
and towns cannot be ignored in the spread of telecommunications towers. 
This bill recognizes that states and towns do have choices in this 
cellular age.
  I became greatly alarmed two years ago, when the Federal 
Communications Commission proposed rules which would preempt State and 
local governments in the siting of telecommunications towers. This rule 
is still pending, and it has been by no means the only or final 
attempts to minimize the role of State and local governments in the 
clamor to erect telecommunications towers.
  For instance, some may recall the ```E-911'' bill that was introduced 
last Congress which would have prohibited State and local governments 
from having any say over the placement or construction of 
telecommunications towers on federal lands. Keep in mind that federal 
courthouses and post offices are included in this category.
  I continue to be very concerned that the rights of citizens are being 
jeopardized by the interests of telecommunications companies.
  As I have said before, I do not want Vermont turned into a 
pincushion, with 200 foot towers indiscriminately sprouting up on every 
mountain and in every valley.
  The state of Vermont must have a role in deciding where 
telecommunications towers are going to go. Vermont citizens and 
communities should be able to participate in the important decisions 
affecting their families and their future.
  Twenty-nine years ago, Vermont enacted landmark legislation, known as 
Act 250, to carefully establish procedures to balance the interests of 
development with the interests of the environment, health and safety, 
resource conservation and the protection of Vermont's natural beauty. I 
do not want Act 250's legacy to be undermined by the interests of 
telecommunications companies.
  Another factor that should remain at the forefront of this debate is 
the existence of alternative communication technologies.
  For instance, some companies are working to offer phone service 
throughout the United States that is based on low-earth-orbit 
satellites. Over time, this will provide a satellite communications 
link from any place in the world, even where no tower-based system is 
available. Emergency communications--911 and disaster assistance--will 
be greatly aided with this development.
  In addition, I have previously discussed how the towerless PCS-Over-
Cable and PCS-Over-Fiber technology provides digital cellular phone 
service by using small antennas rather than large towers. These small 
antennas can be quickly attached to existing telephone poles, lamp 
posts or buildings and can provide quality wireless phone service 
without the use of towers. This technology is cheaper than most tower 
technology in part because the PCS-Over-Cable wireless provider does 
not have to purchase land to erect large towers.
  Since there are viable and reasonable alternatives to providing 
wireless phone service through the use of towers, I think that towns 
should have some say in this matter. And I think that mayors, town 
officials and local citizens will agree with me.
  Also, consider this: the Federal Aviation Administration presently 
has limited authority to regulated the siting of towers, and because of 
this, airport officials work with local governments in the siting of 
towers. Silencing local governments will have a direct effect on 
airline safety, according to the representatives of the airline 
industry that we have heard from.
  In fact, in a comment letter responding to the FCC's 1997 proposed 
rule at preemption, the National Association of State Aviation 
Officials stated that preemption ``is contrary to the most fundamental 
principles of aviation safety * * * the proposed rule could result in 
the creation of hazards to aircraft and passengers at airports across 
the United States, as well as jeopardize safety on the ground.'' I 
cannot think of anyone who would want towers constructed irrespective 
of the negative and potentially dangerous impacts they may have on 
airplane flight and landing patterns.
  There is also a growing concern about potential health hazards 
associated with using cellular telephones. Though there was a major 
push by the U.S. federal government to research effects of electric and 
magnetic fields on biological systems, as is evidenced by the five-year 
Electric and Magnetic Fields Research and Public Information 
Dissemination Program, there has been no similar effort to research 
potential health effects of radio frequency emissions associated with 
wireless communications and wireless broadcast facilities. This 
omission should no longer be overlooked.
  As I have said before, I am for progress, but not for ill-considered, 
so-called progress at the expense of Vermont families, towns and 
homeowners. Vermont can protect its rural and natural beauty while 
still providing for the amazing opportunities offered by these 
technological advances.
  I am proud to continue in my commitment to the preservation of State 
and local authority over the siting and construction of 
telecommunications towers. I ask unanimous consent that this 
legislation be printed the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1538

       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

[[Page S10459]]

     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 and 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 telecommunication 
     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 or the health, safety and 
     welfare of the 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.

[[Page S10460]]

       (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.

  Mr. FEINGOLD. Mr. President, I am pleased to stand together today 
with my distinguished colleague, Senator Leahy, the ranking member of 
the Judiciary Committee, on a bill that protects the rights of state 
and local governments.
  Mr. President, the bill that Senator Leahy introduced today addresses 
an egregious affront to state and local authority. Indeed, the Federal 
Communications Commission's proposed rule on telecommunications tower 
siting is an explicit transfer of power to the federal government.
  Mr. President, the FCC would have the American people believe that it 
understands state and local land use issues better than the folks back 
home. It's proposed rule, itself promoted by a special interest group, 
would preempt state and local zoning and land use restrictions on the 
siting and construction of telecommunications towers. This is not the 
way the Federal government should be operating.
  The FCC's proposed rule would set specific time limits within state 
and local governments must act in response to requests for approval of 
the placement, construction or modification of these towers. In 
addition, the rule would ``remove from local consideration certain 
types of restrictions on the siting and construction of transmission 
facilities.'' And finally, the rule would preempt all state and local 
laws that impair the ability of licensed broadcasters to construct or 
modify towers unless the state or local government can prove that their 
regulation is ``reasonable in relation to a clearly defined and 
expressly stated health or safety objective.
  Mr. President, the proposal infringes on the rights of states and 
localities to make important zoning decisions in accordance with their 
own development objectives. It infringes also on the rights of 
residents of states and localities to fully enjoy the protection of 
rules requiring notification of adjacent land owners, hearing 
requirements and appeal periods. Under the proposed rule, the Federal 
government would impose specific time periods during which zoning 
disputes between entities seeking to build or modify towers and the 
state or locality must be resolved.
  The rule also appears to preempt entirely a local or state law 
regarding tower placement even if that law is intended to ensure the 
health or safety of the community. The rule would allow health and 
safety concerns to be overridden by the federal interest in the 
construction of transmission facilities and in the promotion of fair 
and effective competition among electronic media. It is unclear why the 
business operations of telecommunications companies should override 
local health and safety concerns.
  State or local zoning or land use laws designed to address historic 
or aesthetic objectives also would be preempted under this rule.
  Mr. President, states and localities should be able to maintain the 
right to control development within their own jurisdictions without 
undue interference from the Federal government. Federal preemption of 
zoning decisions should be the exception rather than the rule. The 
proposed rule would make federal preemption of legitimate local and 
state zoning and land use laws commonplace.
  Why would we allow this end run around state and local authority, Mr. 
President? It goes completely against the philosophy of state and local 
autonomy that so many of my colleagues support.
  To try and get to the bottom of this, Mr. President, I'd like to Call 
the Bankroll, which I do from time to time during my remarks on this 
floor. I'm going to offer some information about the political 
donations that have been made by the telecommunications giants that 
have a huge stake in the wireless communications industry. That 
industry has been lobbying hard in favor of the FCC rule, which 
empowers the federal government to overrule local communities that 
don't want a tower in their town.
  During the least election cycle, the following telecommunications 
companies with a stake in the wireless market gave millions upon 
millions of dollars to candidates and the political parties:
   Bell Atlantic gave more than $920,000 in soft money and 
nearly $885,000 in PAC money;
   Wireless manufacturer Motorola gave $100,000 in soft and 
money and nearly $110,000 in PAC money;
   The Cellular Telecommunications Industry Association, the 
lobbying arm of the wireless industry, gave more than $100,000 in soft 
money and more than $85,000 to candidates;
   And AT&T gave nearly $825,000 in soft money to the parties 
and nearly $820,000 in PAC money to candidates.
  Certainly, this FCC rule is not the only thing these companies are 
lobbying for, Mr. President. But whenever wealthy interests wants 
something, they have the weight of their contributions behind them. 
Those contributions influence what we do, and they deserve to be noted 
in this discussion. I think it's vitally important that we keep 
these contributions in mind as we evaluate the proposed rule, and we 
try to understand why the FCC would propose it, and why a Congress full 
of members who support state and local autonomy would stand for it.

  But Mr. President, now I'd like to get to the good news--the bill 
authored by the distinguished senior senator from Vermont, which would 
repeal limitations on state and local authority regarding the placement 
of, construction of and modifications to telecommunications towers. It 
would do so by prohibiting the FCC from adopting as final the proposed 
rule. And the bill does so in a responsible manner.
  Senator Leahy's bill incorporates aviation industry concerns by 
allowing state and local governments to require tower construction 
applications to be accompanied by documentation showing compliance with 
applicable state and local aviation standards. It acknowledges 
alternative technologies which can be used in place of towers, 
including satellite and cable. It authorizes state and local 
governments to require evidence from companies showing that the 
proposed tower would comply with federal health and environmental 
standards. And it maintains the authority of state and local 
governments to ensure that companies comply with statements, assertions 
and representations made while applying for permission to locate a 
broadcast facility.
  Mr. President, as new telecommunication towers have sprouted up by 
the thousands from coast to coast, so has the ire of our residents. To 
quote my distinguished colleague from Vermont, I too don't want 
Wisconsin turned into a giant pin cushion with 200-foot towers sticking 
out of every hill and valley.
  Mr. President, Wisconsin will be a leader in the information age, but 
Wisconsinites deserve the right to determine where towers are located 
within Wisconsin. More than a few Wisconsin communities, large and 
small, have voiced their clear opposition to the heavy hand of the 
Federal government on this issue. Various communities and groups, from 
the city of Milwaukee and the Milwaukee Regional Cable Commission to 
the cities of Fond du Lac and Brookfield to the Dodge County Board of 
Supervisors, the Lincoln County Zoning Committee, and the Oneida County 
Planning and Zoning Committee have contacted me to voice their 
opposition to the proposed rule.
  And other communities that have voiced opposition to recent tower 
siting plans, including Delafield, Fox Point, Bayside, Elm Grove, 
Germantown, Heartland, Mequon, Muskego, St. Francis, and Whitefish Bay.
  One resident of Cassian, Wisconsin, summed up the feeling of many 
Wisconsinites: ``We don't want to become a tower farm.''
  Mr. President, the FCC clearly has overstepped its regulatory bounds. 
We should empower state and local governments, not emasculate them. I 
hope my colleagues will support the rights of our states and 
municipalities, not more Federal autocracy. I commend my colleague for 
introducing this important piece of legislation.
  I yield the floor.
                                 ______