FCC Preempting States Rights
Thank you all for coming here to discuss what is obviously a very important issue for the state of Vermont.
Let me begin this morning by briefly discussing what I believe are the problems facing us and why we are here today.
First, as many of you know, the Telecommunications Act of 1996 deregulated many aspects of the telecommunications industry, with the bold promise that "competition" would help all consumers and bring us into the "Information Age." I voted against that bill, because I feared it would not benefit consumers with respect to cable and telephone rates. I think in this area, the record shows that thus far the Act has failed, cable and telephone rates are soaring, and we haven't benefitted. And now we are learning that the Act takes away the authority of the State and the local governments to make the sorts of land-use decisions that they have traditionally made.
Briefly, there are two issues we face in Vermont with respect to communications towers. The first has to do with a preemption of local or state law with respect to the siting of cellular telecommunications facilities. The second has to do with the preemption of state and local laws with respect to the deployment of digital television broadcast technologies.
First, the Federal Communications Commission, an independent agency created by Congress, has the responsibility of issuing new rules that effectively spell out the meaning of the law and implement what Congress intended in the Telecommunications Act. The FCC works on these rules initially by drafting them within the agency, then it releases this draft, called a "proposed rule," to the public. It then establishes a docket, which is essentially a file for receiving comments on these proposed rules from interested parties. It then reviews the comments that were filed and issues a final rule, which then serves as the controlling legal authority on the matter.
In this case, the FCC issued a proposed rule on wireless or cellular towers which, among other things, would preempt Act 250 requirements for full and fair review of an application to construct or modify a transmitter tower. The rule also removes the Act 250 requirement that the applicant publicly demonstrate compliance with federally-set radio frequency emissions guidelines. Lastly, the FCC proposal would allow cellular companies which were denied an Act 250 permit to seek immediate relief before the FCC in Washington, which would unfairly burden towns by shortcutting the normal state-appeal process. For simplicity, I will call this the proposed rule for wireless facilities. The comment period for this rule closed on October 24 of this year.
Second, last April, the FCC adopted a rapid "roll-out" schedule for digital television, and issued conditional new spectrum licenses to more than a thousand television stations all across the country. These licenses give television broadcasters rights to broadcast signals over approved portions of the digital broadcast spectrum, but also mandate that they must provide digital television within only a few years time. The broadcast industry has subsequently petitioned the FCC, arguing that state and local laws will impede its ability to construct its facilities in a short time period. The broadcasters claim that they must build new towers, some as tall as 2000 feet, or substantially modify existing towers in order to deliver digital television.
In response to the broadcasters, the FCC has issued a proposed rule which would pre-empt much of local government authority over the siting of television and radio broadcast towers. Among other things, the rule would apply to all broadcast facilities, not just digital facilities and would force land-use authorities to respond to applications under unrealistic time constraints. The rule would also allow the broadcasters to essentially self-certify their compliance with radio frequency radiation guidelines. This rule is known as MM Docket 97-182, and the initial comment period for this rule closed on October 30, but the "reply comment" period will remain open until December 1st.
I would like to now briefly explain what is happening around the country on this issue. If anyone here is under the impression that Vermont is the only state with objections to this loss of authority, you are mistaken. In fact, over 250 moratoria on the siting of wireless broadcast facilities have been passed in towns across the country since the Telecommunications Act became law in February of 1996. Towns in states such as Massachusetts, Connecticut, Washington, New York, Florida, and California have opposed the siting of these towers. I have only begun to explore this issue among Members of Congress, but what I have learned thus far has convinced me that this is a real issue that many members from both political parties are concerned about. Additionally, it is my understanding that many other interest groups are concerned about the siting issue, including the Communications Workers of America, the National League of Cities, the National Association of Counties, as well as independent groups concerned about radio frequency exposure.
Originally, many of us working on the issue were under the impression
that FCC was mandated by law to issue final rules on these two issues by
a date certain in January of 1998. However, we have learned more
recently that it is entirely at the discretion of the Commissioners.
This suggests to me that one of the strategies that we should undertake
is to seek a delay from the FCC on any final action on these rules. To
me, this means that our strategy with respect to the FCC would be to get
them to delay final action on their proposals. Last week, Congressman
Chris Shays of Connecticut, who is also very concerned about this issue,
joined me in sending a letter to the Chairman of the FCC, requesting
that he postpone any final action on these rules for one year.
Now allow me to very briefly summarize some of the work my office has done thus far on this issue, and then I want to turn the meeting over to the Senators' offices to hear from them, and then we should turn to the Governors office and state officials as well as concerned citizens to gather their input and suggestions.
First, my office submitted formal comments on the proposed rules to the FCC under deadlines for each of dockets.
Second, as I mentioned earlier, I have written a letter with Congressman Shays to the Chairman of the FCC asking for a one-year postponement in issuing the final rules.
Third, just before the close of the session, we introduced legislation, H.R. 3016, which is similar to the bill introduced earlier by Senators Leahy and Jeffords, which would prohibit the FCC from adopting its proposed rules and repeal parts of the Telecommunications Act in order to give local and state governments full authority regarding the siting of telecommunications towers. This legislation was cosponsored by Reps Shays and DeFazio, and I expect to gain additional cosponsors in the weeks to come.
Fourth, my staff has been in regular contact with officials at the FCC, and we would like to hear your views about the benefits of inviting a top FCC official to Vermont for a hearing on this issue.
In conclusion, it seems to me that this is an important issue for a vast number of us who are involved on this issue at different levels.
Number one, it is an issue for a majority of government officials who are concerned about the loss of their authority to make land-use decisions at the local level.
Number two, it is an issue for all of us who are concerned about aesthetic impacts from new towers located peaks and ridges in the state.
Number three, there are many who are concerned about possible health effects due to exposure to low-level radio frequency radiation.