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Viroqua committee denies Verizon permit
VQA water tower

VIROQUA - The Viroqua Public Works and Parks and Recreation Committees held a joint meeting on Tuesday, Feb. 12 to consider a request from Verizon to begin research pursuant to placing a cell phone antenna on the water tower in Eckhardt Park.

Public Works Committee members Jeff Gohlke, Mike Koppa, Steve Bekkedal, John Thompson and Gregory Splinter; and Parks and Recreation Committee members Terry Noble, Mike Koppa, John Thompson, Cyndy Hubbard, and Sondra Naxi, voted unanimously to deny the request. 

The motion was made by Mike Koppa, and seconded by Cyndy Hubbard to “deny the request by Verizon to use the water tower in Eckhardt Park for cell antennas and equipment.”

“At the first joint meeting of the two committees ever held, the committee voted to deny Verizon their request to conduct land surveys for their proposed site plan,” Viroqua City Engineer Sarah Grainger said. “In their request, Verizon cited state and federal laws giving them the right to site cell phone antennas. The request stops with the committee and will not require further action by the Viroqua City Council.”

Over a dozen local residents shared their concern for the health and safety of those of us who live near by or use the park for recreation and relaxation.

Viroqua resident and Verizon customer Dave Breitbach expressed concern about the proximity of the proposed antenna to residences, and Sarah Caldwell stated that she is “light sensitive,” and felt siting the antenna in the park would “affect her health.” Toby Gratz was concerned about electromagnetic waves that could cause corrosion of the water towner. Dallas Seevers also expressed concern about potential damage to the water tower, and in addition feared that siting the antenna in the park could cause a decline in nearby property values. Zachary Mathes stated that “I do not want children playing under a cell phone antenna.” Ximena Puig stated that “if the antenna is sited in the park, I will have to move because the health of my children matters.” Paula Grenier stated support for keeping the nature of the park and preserving the value of the forest. Tom Westhoff was opposed to siting the tower in the park, stating, “the antenna will pose potential health risks, and there are already 22 cell towers and 58 antennas within four miles of Viroqua.”

According to Grainger, the committees discussed work by attorney Anita Galucci for the Wisconsin League of Municipalities, to create a sample ordinance for municipalities to use to craft their own ordinances to protect all of the powers remaining to them. The purpose of the sample ordinance will be to proactively best position municipalities in a situation where they may experience a legal challenge to a decision they may make. 

In the public input section of the City of Viroqua’s consideration of Verizon’s request, local resident Claire DeCoster weighed in.

“I am excited about the possibility of Governor Tony Evers administration exploring making changes to state laws that limit municipality’s ability to regulate where cell phone towers are located.”

2018 FCC Order

In a Memorandum regarding the FCC 2018 Small Cell Order and Model Ordinance for Siting of Wireless Facilities in Local Rights-of-Way, available on the Wisconsin League of Municipalities web site, Attorney Galucci gives an overview of state and federal legal limitations on the ability of municipalities to regulate cell phone facility siting:

The Federal Communications Commission’s (FCC’s) 2018 Small Cell Order, which largely took effect January 14, 2019, contains new and significant limitations on a municipality’s ability to regulate wireless facilities in local rights-of-way (ROW).

The 2018 order affects municipal regulation of all wireless telecommunications facilities in the ROW, but the order is directed at small wireless facilities (SWF) used to provide personal wireless services to the public (eg. cell phone service). Small cell systems, as well as distributed antenna systems, are deployed to serve areas of high demand and to enhance broadband capacity.

These systems typically use relatively small antennas and equipment cabinets installed on utility poles, street light poles, traffic signal poles, or stand-alone poles. Small cell and distributed antenna system components in the ROW can include: poles, antennas, base stations or equipment cabinets, power sources or meters, canisters or boxes attached to a pole for housing antennas or equipment, and fiber lines.

The purpose of the 2018 Small Cell Orderis to remove perceived barriers to the deployment of wireless broadband services by ensuring that wireless broadband providers have low-cost and easy access to municipal property located in local ROW. The 2018 order attempts to achieve this purpose by limiting municipal authority to regulate the placement of SWF in local ROW and on municipally owned structures in the ROW, including light poles, traffic light poles, and utility poles.

The FCC looks to Sections 253 and 332 of the Telecommunications Act of 1996 (the “Act”) as the basis for its legal authority. First Section 253(a) of the Act, 47 U.S.C. §253(a), provides that “[n]o 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. In addition, Section 253(c) preserves state and local authority to regulate the ROW and “to require fair and reasonable compensation from telecommunications providers,” provided that such regulations are “competitively neutral” and “nondiscriminatory.”

Specifically, the FCC declared that an effective prohibition occurs where a municipal legal requirement “materially limits or inhibits any competitor’s or potential competitor’s ability to compete in a fair and balanced legal and regulatory environment.” Thus the test is now applied not only when a provider is trying to fill a gap in coverage, but also when the provider proposes to densify its existing wireless network, introduce new services, or otherwise improve service capabilities.

By its terms, Section 253 applies both to wireline and wireless telecommunications facilities located in the ROW. Section 332(c)(7) had previously only been applied to wireless facilities outside the ROW. The 2018 Order clarifies that Section 332(c)(7) also applies to wireless facilities inside the ROW and that both 253(a) and 332(c)(7) apply to “wireless telecommunications services as well as to commingled services and facilities.

Home Rule limited

Although municipalities have the right to regulate wireless telecommunications facilities sited in local ROW pursuant to their statutory home rule powers, Wis. Stat. §§196.58(1r), and 182.017(1r), there are significant limitations imposed on municipal regulatory authority by both state and federal laws and regulations.

Under Wisconsin law, a municipality has the authority to regulate utility facilities in the ROW, subject to the requirement that those regulations be “reasonable” and defensible on public health, safety, and welfare grounds. The Public Service Commission of Wisconsin (PSC) has been authorized to hear complaints by utility companies challenging a particular municipal regulation as unreasonable. If the PSC finds the regulation to be unreasonable, then the regulation is legally void.

Specific ways that state law inhibits communities from limiting companies from installing new or expanding existing cell phone facilities are as follows:

·       prohibition of express moratoriums enacted by municipalities which are outright prohibitions

·       prohibition of de facto moratoriums which are “local actions that are not express moratoriums, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits

·       strict regulation of the time limits for review and action on applications to place wireless telecommunications facilities in local ROW. These time limits are referred to as “shot clocks” and can vary based on the type of application submitted. The State of Wisconsin also has shot clocks.

·       Requirement that fees be “reasonable,” according to strictly defined standards.

·       Requirement that aesthetic requirements be reasonable and no more burdensome than for other types of infrastructure deployment, objective, and published in advance.

Legal challenges

Communities across the country and several municipal organizations have filed petitions challenging the 2018 Order, according to Galucci. The cases raise substantial questions regarding the validity of the order, and among other things, challenge the FCCs new effective prohibitions test.

Attorney Galucci states in the Memorandum regarding a sample ordinance being developed for the Wisconsin League of Municipalities that, given the possibility that the order may be overturned, they have tried to avoid incorporating the FCCs standards themselves into the Model Ordinance. Otherwise, there is a risk that the ordinance may require the municipality to continue to comply with those standards even after they have been overturned.

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