Local Telecom Zoning Authority Threatened by FCC Rules

Article excerpt

Local authority to regulate zoning of satellite earth stations and television broadcast signals is under fire by the FCC. NLC has filed comments asking for reconsideration of the earth station rule. Further, NLC encourages municipalities to let the FCC know that preempting local authority is not in the public interest because it restricts local governments' ability to be a watchdog for the safety and well-being of the community.

These rules, which the FCC is putting forth with great alacrity, are part of the Telecommunications Act of 1996, and Nation's Cities Weekly win keep members informed of developments as they happen.

FCC Final Order Preempts

Local Zoning of

Satellite Earth Stations

The National League of Cities, the National Association of Telecommunications Officers and Advisors (NATOA) and 33 State Municipal Leagues filed a petition for reconsideration before the FCC urging the agency to reconsider its final order preempting the ability of local governments to regulate the zoning of satellite earth stations. The FCC final order became effective April 17, 1996.

The petition argues that the final order is contrary to the language and legislative history of Section 207 of the Telecommunications Act, and represents an unprecedented federal intrusion into state and local authority in areas that are traditionally the province of state and local governments and about which the federal government has little or no expertise.

More specifically, the petition argues that Section 207 only directs the FCC to publish regulations prohibiting state and local laws that "impair" a viewer's ability to receive Direct Broadcast Satellite (DBS) service. According to the legislative history of the 1996 Act, by "impair," Congress meant "prevent." Therefore, the final order ignores Congressional intent by immediately invalidating all state and local "zoning, land use, building or similar regulations" that in any way "affect" rather than "prevent" the use of certain small satellite dishes.

Moreover, the petition argues that the final order intrudes on police powers generally retained by slate and local governments. Under the Commerce Clause of the Constitution, Congress may only utilize such police powers to regulate an activity that "substantially affects" interstate commerce. The final order exceeds the limits of the Commerce Clause because it preempts all local zoning, land use, building and similar regulations that merely "affect" small satellite antennas, regardless whether the regulations "impair" DBS service or whether they "substantially affect" interstate commerce. …