Need Some Breathing Room? Think About a Moratorium on Telecom Permits

There's a good chance your community is facing a variety of communications-related matters: applications to construct antenna towers, applications to install fiber-optic cabling, cable franchise renewal, new entrants into your cable market, cable companies offering telephone service and telephone companies offering cable service.

For some of these requests, you may not have permitting procedures in place. For others, your current procedures may be out of date. For antenna siting, your zoning regulations and procedures for leasing public property may not be appropriate for the growing proliferation of PCS antenna applications.

Complicating matters is the Telecommunications Act of 1996, which limits the ways you can manage your rights of way, negotiate cable and other telecommunications franchises, and enforce zoning and building codes on communications carriers.

Under the new act, you must respond to applications in a timely fashion and manage your rights of way in a competitively neutral way. As a result, you are no longer able to deny a request arbitrarily or to negotiate each application on a case-by-case basis. Rather, you need ordinances and procedures that specify a standard way to deal with such applications.

The problem facing you is threefold: First, you may be under pressure to act quickly on a number of applications. Second, if you act precipitously, you may generate chaos-for example, multiple street cuts at the same busy intersection or the proliferation of unsightly antennas-and set poor precedents that will apply to future applications. Third, you can neither ignore nor deny applications without landing in court for violating the Telecommunications Act.

What you need most is time-time to pull together an overall approach to managing telecommunications permitting and then time to embody that approach into ordinances, regulations and procedures. To buy such time, an increasing number of cities and towns are passing short-term moratoria on telecommunications permitting.

Medina Test Case

The best-known of these moratoria is the one passed by Medina, Wash., which has been followed as a key test case. In early 1996 Medina's City Council passed a six-month moratorium on the granting of special use permits, at which point the city was immediately sued by Sprint Spectrum L.P. in federal and state courts. Sprint then dropped the state suit in order to concentrate on the federal suit. In the suit, Sprint argued that Medina's moratorium violated the 1996 Telecommunications Act. Sprint also requested a preliminary injunction that would have forced the city to process applications under old regulations.

The good news is that the U.S. District Court upheld Medina's moratorium (Sprint Spectrum v. City of Medina, Case No. C96-408WD, decided May 3, 1996, in U.S. District Court, Seattle). The court ruled that Medina's moratorium did not violate the Telecommunications Act or the Omnibus Budget Reconciliation Act of 1993. Note, however, that much of the court's ruling was based on careful crafting of the moratorium and that Washington state law is quite favorable to moratoria.

Should you believe it is in your best interests to pass a moratorium, you need to act now. The telecommunications arena is changing rapidly, and much of the impact is being felt by local governments. Now is the time to develop a clear strategy for managing development of your community's telecommunications infrastructure and then to develop ordinances, regulations and procedures that support your strategy. A short-term moratorium can buy you the time you need to do a thorough job rather than being forced into a reactive mode by a backlog of applications.

Miles Fidelman is president of the nonprofit Center for Civic Networking, which maintains a Web site at www.civic.net/telecom/ that focuses on municipal telecom. He can be reached at mfidelman@civic.net or (617) 241-9205.

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