Over the past few months, any time a group of local citizens has gathered to discuss T-Mobile’s installation of cellular transmitters on the Brandon Farms water tower, the Federal Communications Act of 1996 has been part of the discussion. This happens in informal meetings at residences all the way up to official township committee meetings.
The reason this happens is that the FCA is a tool that cellular telephone companies use to smooth the way for them to install transmitters where they want to install them. However, they are only half of the problem. Local government, in this case the Hopewell Township Committee, should be held as accountable as T-Mobile for the application of the FCA.
The Founding Fathers were intelligent and motivated people. The experience they had with a tyrannical monarchy was fresh in their minds while they were putting together the basic structure of our government. As we were taught in history classes, Checks and Balances were designed into our government to prevent the Executive Branch of the government from gaining too much power and behaving like a monarchy. The equal power of the Executive, Judicial and Legislative branches of government ensure that no one entity will have significantly more power than the other.
However, there is another level of checks and balances that people forget about. The wisdom of the founding fathers is evident in the fact that they gave state and local governments power to legislate their own laws. This was intentional and allows those many smaller entities to collectively balance the federal government’s power.
T-Mobile hired a prominent law firm as their representative to present the plans to convert the water tower into a cell tower. This provides T-Mobile with distinct advantages as they present to local government. One of those advantages is that the law firm is very good at using the Federal Communications Act as a bludgeon to bully local governments into allowing tower installations with minimal resistance. However, local governments can work within the FCA and require strict compliance with their own regulations. There is a local government here in New Jersey that is effectively forcing cellular companies to meet tough ordinances, even with the Federal Communications Act in the background. More on that later, first let’s look at the application of Federal Communications Act in our neighborhoods.
According to the FCC:
“The Federal Communications Act of 1996 is the first major overhaul of telecommunications law in almost 62 years. The goal of this new law is to let anyone enter any communications business — to let any communications business compete in any market against any other. The Telecommunications Act of 1996 has the potential to change the way we work, live and learn. It will affect telephone service — local and long distance, cable programming and other video service, broadcast services and services provided to schools. The Federal Communications Commission has a tremendous role to play in creating fair rules for this new era of competition.”
The part of the FCA that our local government has chosen not to challenge is listed in part here (This excerpt is from a document available on the FCC website titled “A Local Government Officials Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures and Practical Guidance”, bold typeface added by me)
This document is not intended to provide legal guidance regarding the scope of state or local government authority under Section 332(c)(7) or any other provision of law. Section 332(c)(7)4 generally preserves state and local authority over decisions regarding the placement, construction, and modification of personal wireless service facilities,5 subject to specific limitations set forth in Section 332(c)(7). Among other things, Section 332(c)(7) provides that
“[n]o State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with [FCC’s] regulations concerning such emissions.” The full text of Section 332(c)(7) is set forth in Appendix C.
There is much more text in the document, but I want to point out the two bold sections. The second passage basically says that as long as a transmitter falls below FCC safety limits, no state or local government may challenge an installation on the basis of environmental effects. This is the portion of the FC A that corporations use to push installations through and is the provision that our local government is hiding behind. However, the first statement says that the state and local authority over decisions regarding placement, construction and modification of wireless transmitters is preserved. This is the check and balance system at work.
According to Common Cause, a nonprofit advocacy organization:
“Since 1997, just eight of the country’s largest and most powerful media and telecommunications companies, their corporate parents, and three of their trade groups, have spent more than $400 million on political contributions and lobbying in Washington, according to an analysis of federal records. All this investment once again gives radio and television broadcasters, telephone companies, long-distance providers, cable systems and Internet companies a huge advantage over average citizens.”
None of this prevents a local government challenge to the placement of antennas. The deck is stacked against the local citizens and their representatives, but it is not the sure thing that the bluster of the telecom corporations or their legal representation would have you believe.
An article in the Independent News dated October 24, 2007 refers to Sprint Communications “facing the toughest cell tower law in the nation”, not too far from us in New Providence, NJ. The local government has taken an intriguing approach to the application of the Federal Communications Act. The town council created an ordinance so tough that Sprint withdrew its application to install cell antennas in their town.
The council researched the Federal Communications Act of 1996 and found that “wireless carriers have had a free hand in placing new cell towers as long as they could prove a significant gap in voice coverage”. Councilman J. Brooke Herne consulted with experts to navigate through the meanings of the words “significant gap” and “voice coverage”. Specifically he wanted to understand the difference between a significant gap in coverage as mandated by the 1996 FCA and reliable in-building coverage. What Councilman Herne discovered is that “reliable is a higher level of coverage than that required by federal law. Reliable is a wider, broader band of connectivity that enables cellular telephone companies to sell more services and make more money.”
This is a major point related to the installation of equipment on the water tower. If you look on T-Mobile’s web site under their “Coverage” link, you can see their coverage in the area that would be serviced by equipment on our water tower. According to their own website, T-Mobile has 1 to 3 bars of coverage in this area. They state that 3 bars means you should able to make calls in your car or outdoors, 1 bar means you should be able to make calls outdoors, but not in buildings. Does this represent a “significant gap in voice coverage”? In T-Mobile’s testimony at the Township Committee Meeting on October 18, 2007, they refer to an FCC mandate to provide reliable communication service in this area. As demonstrated by the town of New Providence, no such mandate for reliable communication service exists. As you can see from the T-Mobile coverage map, no significant gap in voice coverage exists near the water tower.
The New Providence law “compels cell companies to provide the Board of Adjustment the same proof required in court – clear and convincing evidence and expert testimony that a significant gap in voice service exists. It’s not enough to say that they are trying to increase bandwidth to make more money on services other than voice”. I believe that the second sentence accurately states what T-Mobile is looking for from the water tower installation.
We’ve met with several people from T-Mobile. They are not bad people; they have families to feed, just like we do. They are operating under accepted laws as a large corporation. I work for a large corporation myself. All in all, large corporations want to do the right thing and usually have value systems and guidelines in place to encourage ethical, community friendly behavior while attempting to maximize profits for shareholders and employees.
We’ve met with Hopewell Township committee members. They are not bad people either. They are trying to govern the township in the best way they can while working within Federal and State guidelines.
With that said, I believe that the township has a responsibility to operate on behalf of its constituents. It is too easy for Hopewell Township (and T-Mobile) to hide behind the Federal Communications Act and say there is nothing they can do. In addition, it is not true. When the Federal Government allowed lobbyists and political contributions to drive the writing and passage of the Federal Communications Act, the balance of power swung away from the local citizen and toward the Federal Government on behalf of large telecommunications corporations.
I urge the Hopewell Township Committee to help swing that balance of power back to the middle where it belongs by supporting the local constituents on preventing the installation of cellular transmitters on our Brandon Farms water tower. It is not only possible and allowable, but it is necessary.
Mike Hayden
Even if you aren’t concerned about the amount of money spent by lobbyists during the time the Federal Communications Act was written and passed (more on that subject in a coming blog). Even if you believe that the government is on top of the safety issues related to radiation (anyone remember Thalidomide? Cigarettes? Lead based paint? Vioxx?, this list could go on and on), there is an unresolved issue related to the water tower / cell tower that will affect many people in Brandon Farms and in the wider Hopewell region.