Somebody is listening in Vermont ...

Date: Wed, 04 Feb 1998 17:18:30 -0500
From: Al Boright 
To: thistle@plainfield.bypass.com
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.