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Home My WebLink About97-976 06-24-1997RESOLUTION NO. 97 -976 A RESOLUTION OF THE CITY OF EULESS AFFIRMING THE AUTHORITY OF LOCAL GOVERNMENTS TO DETERMINE THE PLACEMENT, CONSTRUCTION AND MODIFICATION OF PERSONAL WIRELESS SERVICE FACIUTIES, INCLUDING BUT NOT UMITED TO, MONOPOLES AND TOWERS, WITHIN THEIR JURISDICTIONS. WHEREAS, on January 31, 1996, the 104th Congress of the United States of America adopted the Telecommunications Act of 1996, amending and repealing various sections and provisions of the Communications Act of 1934; and WHEREAS, the Telecommunications Act of 1996 was designed to provide for a pro - competitive, de- regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition; and WHEREAS, the National Wireless Telecommunications Siting Policy. Section 332 (c) (47 U.S.C. 332 (c) was amended by adding at the end the following new paragraph: "(7) PRESERVATION OF LOCAL ZONING AUTHORITY. (A) General Authority - Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local govemment or instrumentality thereof over decisions regarding the placement, construction and modification of personal wireless service facilities. (B) Limitations (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local govemment or instrumentality thereof: (1) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local govemment or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such govemment or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local govemment or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local govemment 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 the Commission's regulations conceming such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local govemment or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local govemment or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief"; and WHEREAS, the Telecommunications Act of 1996 does not place any further restrictions or limitations on the authority of a State or local govemment or instrumentality thereof over the decision to place, construct, and modify personal wireless service facilities, including monopoles and towers; and WHEREAS, the Telecommunications Act of 1996 defines the terms "personal wireless services," "personal wireless service facilities," and "unlicensed wireless service" but does not define "unreasonably discriminate," "reasonable period of time" or any other terms in Section 332 (c) (47 U.S.C. 332 (c): (7) PRESERVATION OF LOCAL ZONING AUTHORITY. RESOLUTION 97 -976 Page 2 of 4 WHEREAS, based upon the authority provided for and the limitations on that authority contained within the Telecommunications Act of 1996, and the traditional and long- standing authority of State and local govemments and instrumentalities thereof to determine and decide the appropriate land uses, zoning, and placement of businesses and facilities within their jurisdictions, the City Council of the City of Euless, Texas finds as follows: 1. Section 332(c)(47 U.S.C.332(c): (7) PRESERVATION OF LOCAL ZONING AUTHORITY of the Telecommunications Act of 1996 clearly defines the authority of State and local govemments and instrumentalities thereof to regulate the placement, construction and modification of personal wireless service facilities subject to the limitations contained above. 2. Further, Section 332(c)(47 U.S.C.332(c): (7) PRESERVATION OF LOCAL ZONING AUTHORITY of the Telecommunications Act of 1996 provides that an individual, who is adversely affected by any final action or failure to act by a State or local govemment or any instrumentality thereof that is inconsistent with subparagraph (7), may within thirty (30) days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. 3. Section 332(c)(47 U.S.C.332(c): (7) PRESERVATION OF LOCAL ZONING AUTHORITY of the Telecommunications Act of 1996 clearly specifies the role of the Federal Communications Commission as an appeal body for those instances in which the action or failure to act by a State or local govemment or instrumentality thereof is based upon substantial evidence contained in a written record which is inconsistent with clause (iv) conceming radio frequency emissions. 4. Finally, in Fact Sheet #2 entitled "National Wireless Facilities Siting Policies," provided by the FCC Wireless Telecommunication Bureau, it states that: "In certain instances, State and local govemments may benefit from a brief finite period of consideration in order to set up a process for the orderly handling of facilities siting requests... From the perspective of the personal wireless service provider, knowing what to expect in the zoning process is the primary concem...lt is also helpful for zoning authorities to share information about their land use priorities to determine where and how wireless service facilities fit into the plans." RESOLUTION 97 -976 Page 3 of 4 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS: SECTION 1 To support the actions of local govemments to retain their authority over decisions regarding the placement, construction and modification of personal wireless service facilities, including monopoles and towers. SECTION II To oppose the actions of the Federal Communications Commission which are designed to limit, remove, or in any way alter the authority of local govemments to make decisions regarding the placement, construction and modification of personal wireless service facilities, including monopoles and towers. SECTION III To encourage the FCC to continue its present practice of not intruding - without authorization - into matters involving local concems and particular factual scenarios. Congress explicitly gave the Commission the ability to receive petitions conceming regulations on the "environmental effects of radio frequency emissions" and then only "to the extent that such facilities comply with the Commission's regulations conceming such emissions." PRESENTED AND GIVEN FIRST AND FINAL READING AND APPROVED at a regular meeting of the Euless City Council on 24th day of June, 1997, by a vote of 7 ayes, 0 nays, and 0 abstentions. APPROVED: ATTEST: Susan Crim, C C, City Secretary RESOLUTION 97 -976 C&ILL Ma Lib Saleh, Mayor Page 4 of 4