Reading the Law: 1996 Telecommunications Act

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47 USC § 332(a)(7)(A) . . . also known as Section 704 from Senate Bill 652, the Telecommunications Act of 1996 (1996-TCA)

47 USC § 332(a)(7)(A)

General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

47 USC § 332(a)(7)(B)

  • (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government shall not prohibit
    • functionally equivalent services
    • personal wireless services
  • (ii) State or local government shall act on any request for place, construct, or modify personal wireless service facilities within a reasonable period of time
  • (iii) Decision by a State or local government 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 government may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions
  • (v) Any person adversely affected by any final action or failure to act by a State or local government 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 government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

47 USC § 332(a)(7)(C)

Definitions. — For purposes of this paragraph —

  • (i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
  • (ii) the term ‘personal wireless service facilities’ means facilities for the provision of personal wireless services; and
  • (iii) the term ‘unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)).”

47 U.S. Code § 253

(a) In general

No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

(b) State regulatory authority

Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.

(c) State and local government authority

Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.

(d) Preemption

If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. 


CONCLUSION

  1. Nothing in the 1996-TCA limits or affects the authority of a State or local government to regulate the operations of personal wireless service facilities
  2. Such regulation may be based on  Effective Radiated Power levels, as long as such regulation does not prohibit personal wireless services
  3. Broadband by Fiber-Optic to the Premises (FTTP) and Broadband by Wireless are not functionally equivalent services because they have vastly different properties, leading to vastly different impacts in the public rights-of-way.

FTTP Broadband and Wireless Broadband
Are NOT Functionally Equivalent Services

 Wireline FTTP BroadbandWireless Broadband
Data MediumWireline glass fiberWireless through the air
SpectrumVisible LightMicrowave
FrequenciesTerrahertzMegahertz
Frequency Ranges405,000,000,000,000 Hz
to
790,000,000,000,000 Hz
600,000,000 Hz
to
86,000,000,000 Hz
Frequency Ranges405 × 1012 Hz
to
790 × 1012 Hz
600 × 106 Hz
to
86,000 × 106 Hz
Wireless InterferenceNoneUbiquitous
Data capacityHugeLimited
Download speed1,000 Mbsp down25-100 Mbsp down
Upload speed1,000 Mbsp up5-10 Mbsp up
Latency1-5 mill-seconds10-50 ms
Energy-efficiencyExtremely efficientExtremely inefficient
More Frequent InstallationUndergroundOn poles
Less Frequent InstallationOn polesUnderground
Ease of date captureDifficultEasy
SecurityMuch more secureMuch less secure
National SecurityMore reliableMuch less reliable
Electromagnetic Pulse AttackSurvivesDoes not survive
Fire: Natural or AttackSurvives UndergroundDoes not survive=
Health EffectsNoneMany Proven*
Biological EffectsNoneMany Proven*
Environmental EffectsNoneMany Proven*
Impacts in/from PROWNoneSignificant**

* Link to tens of thousand of peer-reviewed studies — established science that proves Negative Health, Biological and Environmental Impacts of RF microwave radiation exposures 


**Link to safety, privacy and property value harms from Wireless Telecommunications Facilities (WTFs) installed near homes


Listening to Oral Arguments: Portland et al. v FCC (Feb 10, 2020)

Note: the Ninth Circuit Ruling is expected in mid-July, 2020

Re: Repeal of of the Aug, 2018 and Sept 2018 FCC Orders:

  • FCC 18-111: (Aug 2018) Speeding Access to Poles and FCC Presumptive Order on State Moratoria
  • FCC-18-133: (Sept 2018) Streamline Small Cell Deployment Order

Full video is featured here: https://scientists4wiredtech.com/ninth-circuit-case-repeal-of-fcc-18-133/

Scott Noveck, FCC Attorney on Feb 10, 2020: — https://youtu.be/t_IMrAqwpNk?t=36m47s

“The Moratoria Order doesn’t prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

FCC 18-133 Footnote 246 → “Our decision to adopt this objective requirement is supported by the fact that many states have recently adopted limits on their localities’ aesthetic requirements that employ the term “objective.” [objective meaning easily ascertainable, per Scott Noveck, FCC Attorney on Feb 10, 2020]

Scott Noveck, FCC Attorney on Feb 10, 2020: — https://youtu.be/t_IMrAqwpNk?t=53m15s

These small cells, though they have much less range than macro towers, they have a fair range.”

Note: Noveck’s truthful statement in front of a Panel of Federal judges from the Ninth Circuit agrees with the comments of Lee Afflerbach, RF Engineer for CTC Technology that were entered into the City of Sonoma Public record on 9/12/19:At 3:10:24 in the video → https://youtu.be/HRYFXx7oNN4?t=3h10m24s“many people are [wirelessly] streaming video and other services like that . . . each [small] cell is capable of almost putting out the same energy as one macro cell.”At 3:13:22 in the video → https://youtu.be/HRYFXx7oNN4?t=3h13m22s“. . . my staff has probably reviewed several hundred of these small cells in the last year . . . and they are all 4G . . . The radios that they are using are the exact same radios that are up on the macro towers. It’s not a different technology . . . the same boxes as on macro towers. I see them all the time.”

Joseph Van Eaton, BBK Attorney for City of Portland et al. on Feb 10, 2020:
https://youtu.be/t_IMrAqwpNk?t=1h10m52s 

“What the FCC sees as a generous order, when you look at what the findings of law are, it is actually pretty harsh and the same thing is true with the reasonable aesthetics requirements . . . well reasonable is defined as technically feasible . . . and we know from the intevenor’s brief that the intervnor’s view that as they get to install what the want and basically where they want subject to only such minor adjustments as they can make without preventing them from doing that which they want to do, so it doesn’t protect the city . . . ; the Wireless carriers always have the out of technical feasibility.” 


Key Definitions

Commercial Mobile Service: the term “commercial mobile service” means any mobile service (as defined in section 153 of this title ) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission;

From Section 153 of this title
(24) Information service — The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

(50) Telecommunications — The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

(53) Telecommunications service — The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

(33) Mobile service — The term “mobile service” means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and includes 

   (A) both one-way and two-way radio communication services 

   (B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and 

   (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled “Amendment to the Commission’s Rules to Establish New Personal Communications Services” (GEN Docket No. 90–314; ET Docket No. 92–100), or any successor proceeding.

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