Legislative Program Review and Investigations Committee

Chapter III

Telecommunications

Similar to energy proceedings, developers of new or modified telecommunications facilities regulated by the council must obtain approval from the council prior to beginning construction. This chapter describes the council's current siting jurisdiction and processes related to telecommunications.

CSC Siting Jurisdiction

In Connecticut, jurisdiction over the siting of telecommunication towers is split between the Connecticut Siting Council and local land use agencies. Table III-1 outlines the statutory parameters of the council's jurisdiction in telecommunications.

Under state law, the council has siting authority over towers used to provide cable TV and cellular telephone service. It also has jurisdiction over telecommunication towers owned or operated by the state, a public utility, or a telecommunications company certified by the Department of Public Utility Control.

Table III-1. CSC Jurisdiction for Telecommunications: C.G.S. § 16-50i

· Telecommunications towers, including associated equipment:

- owned or operated by the state;

- owned or operated by a public service company, as defined by CGS § 16-1;

- owned or operated by a person, firm, or corporation certified by the Department of Public Utility Control to provide intrastate telecommunications services pursuant to CGS § 16-247f through 247h, inclusive; or

- used in a cellular system as defined in the Code of Federal Regulations Title 47, Part 22, as amended.

Local land use agencies, such as zoning commissions and inland wetland agencies, have jurisdiction over all other telecommunication towers. These include towers used for personal communication services (PCS) ¹ as well as radio and television broadcast towers.

Federal role. In 1996, the federal government restructured the telecommunications industry by opening the market to competition and fundamentally changing its regulation. Through the federal Telecommunications Act of 1996, state and local governments can regulate the siting of telecommunications facilities with some restrictions. The major regulatory restrictions on state and local governments, pursuant to the federal act, are as follows:

• regulations may not unreasonably discriminate among providers of functionally equivalent services;
• regulations may not prohibit wireless services within a community; and
• regulations may not address radio frequency emissions if they meet Federal Communications Commission (FCC) standards.

Under the act, states and municipalities are required to act on requests for permission to build or modify these facilities within a reasonable time. The decisions must be in writing and based on substantial evidence in a written record. Any person adversely affected by a government's action or failure to act can appeal to state or federal court. In the case of alleged violations of the FCC standards, appeals go to the FCC.

In addition, towers near airports are subject to Federal Aviation Administration (FAA) regulation. Towers more than 200 feet tall may be regulated if they obstruct navigable airways.

State and local role. Both state and local agencies must comply with the federal Telecommunications Act of 1996. In Connecticut, the Connecticut Siting Council has exclusive jurisdiction over the siting of telecommunications towers used for cable television and certain types of telecommunications facilities including cellular services. Local land use agencies such as zoning commissions have jurisdiction over the rest, including towers used to provide radio, television, and personal communication services (PCS).

There has been extensive case law clarifying what states and municipalities can do in regulating towers under the federal act. Recently, Sprint PCS has taken the Connecticut Siting Council to federal court arguing that the state's split jurisdiction (cellular facilities to the council and PCS facilities to local zoning commissions) constitutes unreasonable discrimination. The district court rejected Sprint's motion for summary judgment. The U.S. Court of Appeals for Second Circuit disagreed with the lower court decision. On remand, the district court is expected to rule on the merits of Sprint's claim.

Under current state law, the council has exclusive siting jurisdiction over its statutorily defined facilities. The municipality where the tower is proposed to be built is entitled to notice of the certificate application and may participate in the siting proceedings as a party.

Certification Process

As with energy facilities, the steps and timeframes of the CSC telecommunications siting process are established in statute and council regulations. A flowchart of the process is provided in Figure III-1.

A certificate of environmental compatibility and public need must be obtained from the council prior to the construction or significant modification of a telecommunication facility. Prior to filing an application with the council, state law mandates certain pre-application activities.

Pre-application phase. At least 60 days before submitting a CSC application, an applicant must consult with the proposed municipality. As part of the consultation, the applicant must meet with the municipality's chief elected official to provide any technical reports and information regarding need for the facility, the site selection process, and the environmental effects of the project. The municipality is required to issue its recommendations by the time the application is submitted to the council. The applicant must provide the council all materials given to the municipality within 15 days after the application is filed.

Proof of service and public notice requirements are the same as energy proceedings. The applicant must publish notice of the application in newspapers in the affected towns and send notice to abutting property owners by certified or registered mail.

Application filing. Detailed form and filing requirements are specified in council regulations. Appendix A provides a listing of these requirements. As with energy applications, the applicant must provide the council with 20 copies of the application and may include any additional exhibits, sworn written testimony, data, models, illustrations, and all other materials the applicant deems necessary to support its application. The application fee schedule is identical to energy filing fees.

The council staff reviews each application and may reject any incomplete applications within 30 days. A council siting analyst conducts a technical review to ensure compliance with state and federal law and regulations. Council staff may also complete some independent review of the information such as computer modeling or propagation analysis. Consultants are rarely used in this evaluation but the staff does solicit comments from state agencies when needed.

Council members and staff may also conduct one or more field reviews of the proposed sites to visually assess the location and surrounding land uses. Weather permitting, a balloon may be flown to approximate the height of the proposed tower. Observations and recommendations are reported to the full council at its public hearing.

Public hearing. A public hearing on the application must be held between 30 and 150 days after receiving it. The hearings must be held by the council prior to making a final decision

on certification. At least one hearing in the county where the facility will be located must be held after 6:30 p.m. for the convenience of the general public. The council must advertise the date and location of the hearing in local newspapers at least a week in advance of the scheduled date.

Any person or group, including municipalities interested in the council's proceedings, may petition the council to participate as a party or intervenor. Anyone entitled to party or intervenor status may:

• file pre-hearing questions;
• present testimony at the hearing;
• cross-examine witnesses at the hearing; and
• file exhibits, briefs, and proposed finding of fact.

All parties and intervenors are required to respond to pre-hearing questions and cross-examination by the council, applicant, or other parties or intervenors. In addition, any person who is not a party or intervenor may make an oral statement at the public hearing or file a written statement within 30 days after the close of the hearing.

A record and copy of the hearing must be filed with the council and at a public office, designated by the council, in the county where the facility will be located. The council's record must remain open for 30 days after the close of the hearing.

Council deliberations. The information and materials submitted through the application and public hearing form the basis of the council's Findings of Fact, Opinion, and Decision and Order. These documents are considered in draft form, at a publicly noticed council meeting allowing the public to observe council deliberations. Parties and intervenors may identify any errors or inconsistencies with the council's drafts and the record. A final decision must be made within 180 days of the application although the council may extend this deadline by another 180 days if the applicant consents.

Council membership for telecommunications is the same as for energy proceedings. In making its decision, the council must review the need for the facility and its probable impacts on the natural environment, public health and safety, scenic, historic and recreational values. A certificate cannot be granted unless the council determines that the facility's adverse environmental impacts are not sufficient to deny the application.

In addition, the council must determine whether it is feasible to require the developer to share an existing tower or whether the proposed tower could be shared if built. The council may deny a certification if the applicant can share an existing tower or is unwilling to share the proposed tower.

A copy of the council's decision must be served on each party and published in the appropriate local newspapers. The decision is subject to judicial review. According to the Attorney General's Office, few council decisions are challenged. As of June 2000, one court appeal from 1998 was pending.

Follow-up and monitoring phase. Compliance with council orders are verified through field investigations and detailed development and management plans. Enforcement of council orders and state law is performed by the Attorney General who provides the council with legal assistance.

Council activities. The map in Figure III-2 shows all existing CSC-approved telecommunications facilities in the state. Table III-2 lists the outcomes of CSC certifications for telecommunications since 1990.

As of July, the council has not certified any new telecommunications facilities this year. The last certificated facilities include one cellular telephone facility and one community antenna television facility in 1999. As the table shows, the council has approved a number of telecommunications projects each year. Since 1990, the council has approved a total of 69 telecommunications facilities and denied 34. The largest number of facilities were considered in 1990 when 24 projects were approved. Few applications are withdrawn or dismissed.

Exemptions. State law allows exemptions to the certification process for the modification of existing telecommunications towers, the replacement of damaged towers, and temporary use of cellular equipment. In general, exemptions may be permitted if routine general maintenance is needed and one for one replacement of facility components is necessary for reliable operation. Exemptions are also allowed if the changes do not:

• increase the tower height;
• extend the boundaries of the tower site;
• increase noise levels at the site boundary by six decibels or more; and
• increase the total radio frequency electromagnetic radiation power density measured at the tower site boundary to or above the standard adopted by DEP.

Parties seeking exemptions must give the council and the chief elected official of the municipality of the site prior written notice detailing its reasons for claiming exemption. The council reviews the proposed modifications to ensure there are no significant changes or alterations in the physical and environmental characteristics of the site. If not, the council may find the project constitutes a regulatory exemption. In FY00, the council reviewed and acknowledged 62 modifications of existing telecommunications facilities.

Tower Facility Sharing

In 1993, the Connecticut General Assembly passed legislation supporting the sharing of towers to avoid unnecessary tower proliferation. As a result, the Connecticut Siting Council must consider whether it is technically, environmentally, and economically feasible and consistent with public safety to have an applicant share an existing tower. The council may impose reasonable conditions on a certificate for a telecommunications tower to avoid undue proliferation. As discussed earlier, the council may deny an application if it determines that shared use of an existing tower is feasible and the applicant would not cooperate with regard to future sharing of the proposed tower.

State law also allows a potential tower user to ask the owner of an existing tower to share it and establishes proceedings to compel sharing if the owner denies the request. If the owner agrees to shared use, the requesting party must comply with reasonable conditions imposed by the owner regarding its use. The council can arbitrate any issue between the requesting entity and the tower owner regarding the conditions of shared use of the tower.

If the owner refuses to share, the requesting entity can bring the issue to the council. A council hearing must be held within 90 days to determine whether sharing is technically, legally, environmentally, and economically feasible, and whether such sharing would meet public safety concerns. The host municipality must receive notice of the hearing. If the council finds shared use is feasible and consistent with public safety concerns, it must order the owner to share the tower upon the terms and conditions the council deems appropriate. The council does not determine the compensation paid to the tower owner. If the parties cannot agree on compensation, they can submit the matter to arbitration within 90 days of the council's decision or petition the Superior Court to determine the issue.

According to CSC reports, the council reviewed and acknowledged 94 requests in FY00 for tower sharing at existing facilities to avoid the construction of new telecommunications towers.

¹ PCS is a telecommunications technology that is superseding cellular telephones. In the United States, PCS operates in the 1850 to1990 megahertz (MHz) bands. In contrast, cellular systems operate in the 824 to 849 MHz bands. Unlike the earlier analog versions of cellular, PCS uses digital signals.

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