Courts & Industry Run FCC Interference

A federal court has ruled that the hoops through which the FCC makes wireless-service providers leap are sufficient to prevent RF interference (RFI) and can't be trumped by a zoning authority citing "home rule."

The U.S. Court of Appeals for the 10th Circuit upheld a district court's decision that Southwestern Bell Wireless (SWB) can maintain a 150-foot monopole in an unincorporated portion of Johnson County, KS, a largely suburban area with a population of 435,000 near Kansas City, MO.

The county gave SWB a conditional-use permit to build the tower, but it included 17 conditions, one of which gives the county authority to ask that the tower be moved if it appears to interfere with public communications systems. One of the county's fire districts had suffered RFI from other towers, and that situation prompted a closer look at cell-site locations, said Don Jarrett, chief counsel for the county board of commissioners. The county hired an engineering firm and a Motorola public-safety consultant to investigate the SWB tower.

"Both of those experts indicated that RFI not only could but likely would occur," Jarrett said. "It's just a question of the degree."

In response, SWB filed suit seeking both a declaration that federal law preempts county zoning regulations involving RFI and an injunction against the regulation's enforcement. About one year into the case, CTIA filed a brief supporting SWB and the FCC. "Allowing local authorities to adopt RFI regulations would expose wireless carriers to a rash of potentially inconsistent legal obligations, delaying the construction and implementation of wireless networks (and) creating an unlawful barrier," CTIA wrote.

A few months later, the FCC told the county that the FCC alone "has exclusive jurisdiction over RFI matters." As the appeals court later noted, the FCC didn't file suit against the county despite the fact that a local authority apparently was impinging its power. In May 1998, the district court ruled in SWB's favor.

One unresolved issue is whether SWB must pay for the experts, stipulated by one of the 17 permit conditions, said a SWB spokeswoman. One reason could be that the county plans to appeal to a higher court, though it hasn't said so publicly, she said. The county has indicated that it intends to uphold its RFI provision despite the fact that the courts invalidated it as "preempted by federal law."

The county argued in its appeal that the district court erred in determining that federal law preempts its interference regulation, which was attached to the conditional-use permit. The appeals court rejected that argument along with the county's contention that the court was usurping the reservation of state powers guaranteed by the 10th Amendment to the Constitution.

The court also didn't buy the county's argument that the Telecom Act altered the FCC's authority with the "preservation of local zoning authority" section, making its interference regulation legal.

Wireless-service providers will roll out location-based technologies over the next 5 years to meet federal E-911 mandates. Because these technologies allow enhanced services, service providers now have to decide which ones to offer consumers. A Strategis Group telephone survey of wireless users aims to help service providers make the call by indicating what percentage of wireless users definitely or probably are interested in which services.