Date: Wed, 04 Feb 1998 17:18:30 -0500 From: Al Boright
To: firstname.lastname@example.org Subject: JRH 109 Content-Disposition: inline Here is the Towers Preemption Resolution as it was introduced in the Vermont House and referred to the Committee on Natural Resources and Energy. It is a different version than the draft that was circulated for comment: ----- J.R.H. 109 Reps. Deen of Westminster, Bjerke of Burlington, Coleman of Londonderry, Darrow of Newfane, Nuovo of Milddlebury, Snyder of Pittsford, Sullivan of Burlington and Zuckerman of Burlington, offered a joint resolution, entitled Joint resolution relating to federal preemption of State and local regulation of Broadcast tower facility siting; Whereas, the federal Telecommunications Act of 1996 (TCA) limited the ability of the citizens of all states and American communities to control the negative effects of personal wireless service facilities, in part, by its provisions which prohibit states and communities from having health and safety standards stricter than the federal standards that regulate the environmental effects of radio frequency emissions from those facilities, and Whereas, despite the fact that Congress expressly intended in enacting the TCA, not to occupy an entire field of regulation, but rather to preserve remaining state and local regulatory authority in the area, petitioners to the Federal Communications Commission (FCC) have pressured the FCC to adopt rules which would expand the narrow federal preemption over limited aspects of the regulation of personal wireless facilities into a broad preemption of state and local regulatory authority over the siting of any type of telecommunications facilities, including AM, FM, UHF and VHF, and Whereas, included in these petitions are proposed rules that would violate principles of federalism and democracy by, for example, severely restricting the ability of local governments and the public to meaningfully participate in decisions to place transmission facilities in their communities, and Whereas, these requested rules also would prohibit state or local governments from denying requests to place, construct or modify any broadcast tower in a manner that meets federal requirements, if that state or local government was acting on the basis of: (1) health or environmental effects of radio frequency emissions (despite the fact that the FCC, which sets the standards, does not purport to be a health agency and turns to health and radiation experts outside the agency, and despite the fact that the Food and Drug Administration and the Environmental Protection Agency agree that current research is insufficient to determine whether cellular phone usage presents risks to human health), (2) interference effects (despite the fact that there are no adequate federal standards on this important problem, and despite the fact that the FCC's authority may well apply only to electronic equipment likely to be found in a private residence, as distinguished from devices intended for medical, or office and business use), or (3) lighting, painting, and marking requirements (despite the fact that federal requirements are primarily concerned with limiting hazards to air navigation, anddespite the inherent local nature of site-appropriate aesthetics determinations), and Whereas, despite the fact that there is no precedent for federal preemption on aesthetics issues, not even in the heavily regulated subject areas of nuclear facilities and hydropower, the FCC docket specifically asks the question of whether federal regulation, for the first time, should preempt local regulation intended for aesthetic purposes, and Whereas, FCC action expanding federal preemption may revitalize attempts by the National Association of Home Builders, and others, to convince Congress to enact provisions which passed the House during the last session, in H.R.1534, which envision a potentially much broader general preemption of virtually all state and local land use regulation, and Whereas, the regulation of broadcast towers involves many factors which argue in favor of the states retaining their traditional power and primary responsibility to protect the public safety, health and welfare in a reasonable way that allows the introduction of beneficial new technology while also preserving existing values and protecting existing investments; factors which include: (1) the rapid proliferation of personal wireless transmitters and the expected roll out of digital television transmitters, which in the near future will dramatically increase the number of sources of nonionizing radiation and the relative strength of these sources, (2) the site-specific nature of determinations regarding the optimal size of safety zones around towers, which not only must be sited so as to limit exposure to local hiking trails, but which also, as recent events suggest, may be the source of falling ice or may collapse on local neighbors as a result of ice storms, (3) the strong local interest in preventing radio wave interference with pacemakers and other essential medical appliances, with business equipment, and with other electric appliances, (4) the absence of independently funded, conclusive, peer-reviewed studies on the health effects of low-level prolonged exposure to nonionizing radiation, which, among other issues, should accord due consideration to the subtle effects of electrical, chemical, and magnetic cues on human beings who have chemical and electrical sensitivities and the effects of these electric, chemical, and magnetic cues on other mammals, and (5) the distractive and debilitating community effects that are likely to accompany the careless, imperious, unnecessary placement of broadcast towers, particularly in the absence of meaningful state and local input on tower siting, and Whereas, Vermont's wireless communication coverage is adequate, and the state's history of regulating transmission towers under Act 250, instead of being grounds for preemption, is strong evidence of the state's ability to protect business opportunities, the environment, and the state's most important economic asset, its natural beauty, in a way that preserves Vermont for future generations, without inhibiting growth and development, as is evidenced by the fact that between 1990 and 1995, of 66 permit applications, 58 were able to meet Act 250 criteria and receive permits, while only two applicants for new or modified transmission structures were denied, now therefore be it Resolved by the House of Representatives and Senate: That the General Assembly commends its entire Congressional Delegation on their untiring efforts to prevent this unprecedented assault on essential state and local authority on matters which affect their citizens' property values, their health, the enjoyment of their homes, and their ability to sell their homes, and be it further Resolved: That the General Assembly wholeheartedly supports the state's Congressional Delegation in their attempts to enact the provisions of S.1350 and H.R.3016, or comparable federal legislation, which would: (1) repeal the current limitations on the exercise of state and local authorities regarding the placement, construction and modification of personal wireless service facilities, (2) permit state and local governments to regulate such facilities on the basis of the environmental effects caused by the operation of the facilities, (3) place the burden of proof in tower permitting applications where it belongs: on the party seeking to place, construct, or modify a tower, (4) prohibit the FCC from adopting rules that would preempt state and local regulation on these matters, (5) in the case of the House Bill, allow an applicant relief from an adverse action only after they have exhausted all state and local remedies, and be it further Resolved: That evolving telecommunications systems should be allowed to expand their coverage: (1) through a thoughtful, interactive process in which the developers of the technologies undergo a comprehensive, long-range planning process together with the communities and states involved, in a way that develops public confidence in and allows adequate public access to desirable technology, while fostering competition, efficiency, responsibility, and responsiveness in the industry, (2) not pursuant to a top-down, one-size-fits-all federal mandate which: (a) may well be inconsistent with the express intent of Congress, (b) encourages stealth planning and development on the part of the industry, (c) excludes local communities from decisions affecting their health, property and quality of life, (d) imposes weak and technically incompetent federal standards, and (e) favors narrow, short-term business interests over the long-term economic environmental and health interests of the American citizens, and be it further Resolved: That the Secretary of State is directed to send a copy of this resolution, within seven days of its passage, to Senators Patrick Leahy and James Jeffords, to Congressman Bernard Sanders, to the other members of the United States Senate and House of Representatives, to the FCC, to the legislative leaders of each House in each of the other 49 states, and to the Governors of those states, and be it further Resolved: That Governor Howard Dean is hereby requested: (1) to take all appropriate steps to bring this issue before the National Governors' Association for action by the association, (2) to personally encourage the Governors of the other 49 states to support the above-mentioned legislation before the Congress, (3) to otherwise continue his commendable efforts to regain this essential component of states' rights and to repel future attempts to preempt state and local control on these issues, and (4) to report back to the General Assembly at least two times per year with a status report on this issue, and be it further Resolved: That the Vermont League of Cities and Towns is hereby requested to work together with its sister groups on a national level and in the other 49 states, to build support for the above-mentioned legislation before the Congress and to otherwise participate in this effort to regain this essential component of local control and to repel future attempts to preempt state and local control on these issues. ----- Which was read and, in the Speaker's discretion, treated as a bill and referred to the Committee on Natural Resources and Energy.