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Local Officials Will Take the Heat for Federal Rules Governing Cell Towers

Section 6409(a) of February's Middle Class Tax Relief Act purports to compel local governments to approve cell tower zoning collocation applications.  But it is probably unconstitutional.  Why?  Precisely because it compels local approval. 

To explain – the Supreme Court has rejected as unconstitutional Federal statutes which "blur the lines of political accountability" by directing local officials to take actions for which the Feds are really responsible.  Section 6409(a) runs squarely afoul of that prohibition.

Think about it:  The statute requires local officials to "approve" qualifying collocation applications.  As the Supreme Court has stated, that results in local officials taking the heat for which Congress is really responsible.  Stated another way, Congress devised the statute so that to the ordinary person zoning approval of an egregious cell tower collocation application would appear to be the result of local action, with local officials bearing the political consequences.  But in fact it is Congress and the Federal government pulling the strings, but effectively trying to avoid responsibility.

There are other reasons for doubting the constitutionality of Section 6409(a), such as basic principles of federalism.  But its' impermissibly blurring the lines of political accountability is one of the clearest and easiest to understand.

© 2020 Varnum LLPNational Law Review, Volume II, Number 159


About this Author

John W. Pestle, telecommunications attorney, Varnum

John is a member of the firm's Environmental, Energy and Natural Resources Team. Since 1996 he has represented property owners across the country (businesses, developers, schools, churches, municipalities, real estate companies) on the grant, renewal and modification of cell tower leases with companies like Verizon Wireless, AT&T Wireless, T-Mobile and Crown Castle. He has also represented clients on the evaluation or sale of over sixty (60) cell tower leases and future leasing rights to companies like American Tower, Crown Castle, SBA, Wireless Capital Partners,...