A heated topic which sometimes comes up in cell tower leasing and zoning is the safety of the emissions (some call it radiation) from cell towers.
First the law. The Federal cell tower zoning law expressly prevents zoning approvals from being based on a cell tower’s “radio frequency emissions” to the extent the tower complies with FCC emission regulations. This preemption provision is not unique – the same principle applies generally to radio, TV and other radio transmitters. This is because the FCC claims exclusive jurisdiction over radio frequency emissions. It has set safety rules for such emissions that apply to all radio transmitters. As a result it and the courts have preempted state and local governments which have tried to regulate various types of towers based on their radio frequency emissions.
Second, given the law, what can a zoning authority do? It can require a cell phone company to run tests to show that the installation complies with the FCC’s rules. It can take action if these rules are violated. And it should look to other grounds to legitimately deny or condition zoning approval.
But in general it should not allow testimony about the adverse effects of RF radiation. I’ll get into that, related practical advice and RF radiation in the leasing context in my next post.© 2014 Varnum LLP