[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:
<bullet> Bell Atlantic gave more than $920,000 in soft money and
nearly $885,000 in PAC money;
<bullet> Wireless manufacturer Motorola gave $100,000 in soft and
money and nearly $110,000 in PAC money;
<bullet> 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;
<bullet> 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.
______