HomeMy WebLinkAbout1996 09 09 Regular Item K
COMMISSION AGENDA
ITEM K
REGULAR X
CONSENT
INFORMATIONAL
September 9. 1996
Meeting
MGR /!. ~EPT ~
Authorization
REQUEST: Land Management Division requesting Commission action on the recommendation
of the Board of Adjustment as it relates to the request of 1) Florida Power
Corporation and 2) the City of Winter Springs for variances to the height restrictions
set forth in Section 20-164 of the Code of Ordinances and Chapter 20 of the Code of
Ordinances. These variances are requested for the purpose of erecting
telecommunications towers within the City of Winter Springs. Separate action is
required for each request.
PURPOSE: The purpose of this Board item is to approve or disapprove the recommendation of
the Board of Adjustment as it relates to the request of Florida Power Corporation and
the City of Winter Springs for variances to the height restriction for the purpose; of
erecting telecommunications towers within the City of Winter Springs. The height of
the towers would be one hundred twenty (120) feet each, One (1) tower would be
erected at the Florida Power Corporation substation located east of the intersection
of Shore Road and Panama Road and is zoned R-1AA (One Family Dwelling
District). One (1) tower would be erected on City property within the West
Reclamation Facility located at 1000 West S.R. 434 (approximately 2,000 feet north
of S,R. 434, west of the Florida Power Easement, west of the Winter Springs; Golf
Course and northeast of Golf Terrace Apartments) and is zoned Planned Unit
Development (PUD).
APPLICABLE CODE:
Code Section 20-82. Duties and powers; general.
The Board of Adjustment shall make recommendations to the City Commission to
grant any variance or special exception as delineated in this chapter.
September 9, 1996
Agenda Item K
Page 2
Code Section 20-83(h) - "Any variance, special exception or conditional use
which may be granted by the city council shall expire six (6) months after the
effective date of such action by the city commission, unless a building permit based
upon and incorporating the variance, special exception or conditional use is
obtained within the aforesaid six-month period. However, the city commission
may renew such variance, special exception or conditional use for one (1)
additional period of six (6) months, provided good cause is shown and the
application for extension shall be filed with the board at least thirty (30) days prior
to the expiration of the six-month period. Any renewal may be granted without
public hearing, however, a reapplication may be charged in an amount not to
exceed the amount of the original application fee....."
Code Section 20-164. Building height regulations. (relative to Florida Power
Corporation request)
"In R-lAA and R-IA One-Family Dwelling Districts, no building or structure shall
exceed thirty-five (35) feet in height....."
Code of Ordinances, Chapter 20 (relative to City of Winter Springs request)
There is no definitive height restriction for this type use in the PUD Section of
Chapter 20. But, in no zoning district throughout the City does the height
restriction exceed fifty (50) feet.
FINDINGS:
1) The Telecommunications Act of 1996 is designed to remove regulatory
barriers and encourage competition among all types of communications
companies. It allows local telephone companies into the long distance, cable
television, and phone equipment manufacturing markets. It allows long distance
telephone companies, cable operators, cellular providers and others into the local
telephone market. The Act encourages satellite services to compete with cable.
But, the Act also loosens telephone and cable rate regulation. It loosens
regulations of television and radio broadcasters as well.
September 9, 1996
Agenda Item K
Page 3
The Act generally preserves local zoning authority over wireless
telecommunications facilities (such as cellular towers) as long as zoning
requirements are nondiscriminatory, do not have the effect of prohibiting service,
and are not based on the health effects of radio frequency emissions. Zoning
decisions must, however, be made within a reasonable time, be based on evidence,
and be in writing. In order to take advantage of the Act's general principle of
preserving local zoning authority, local government zoning decisions about
wireless telecommunications facilities must satisfy five conditions. Those
conditions are:
1. Local zoning requirements may not unreasonably discriminate among
wireless telecommunications providers that compete against one another.
The legislative history makes clear that local governments do not necessarily have
to treat competitive providers exactly the same if their proposed facilities present
different zoning concerns. Congress intended to give local governments some
flexibility in this area, It recognized, for example, that a proposed 50-foot tower in
a residential district presents different concerns than a a 50-foot tower in a
commercial district, even if the two towers are going to offer services that
compete with one another.
2. Local zoning requirements may not prohibit or have the effect of
prohibiting the provision of wireless telecommunications service.
This is intended to prevent local governments from imposing outright bans on
wireless telecommunications facilities, It probably also prohibits moratoriums on
accepting applications, at least any moratorium that is of indefinite length. At the
same time, local governments should have the ability to limit the number and
placement of facilities as long as those limits do no have the effect of precluding a
wireless telecommunications provider's ability to offer services.
September 9, 1996
Agenda Item K
Page 4
3. A local government must act on a request for permission to place or
construct wireless telecommunications facilities within a reasonable period
of time.
The time taken to act on an application will be considered reasonable as long as it
is no longer than the time the local government usually takes to act on the other
requests (say, for zoning variances) of comparable magnitude that have nothing to
do with telecommunications facilities. And Congress emphasized that the Act
does not require local governments to give preferential treatment to zoning
requests involving telecommunications facilities -- such requests can wait their
turn. As long as the request is not moved down the list, it does not have to be
moved up the list.
4. Any city councilor zoning board decision denying a request for
permission to install or construct wireless telecommunications facilities must
be in writing and must be based on evidence in a written record before the
council or board.
This requirement may necessitate a considerable change in practice fro some city
councils and zoning boards. It means that proceedings on a zoning application will
need to be reduced to writings. This can be done by having the proceedings
transcribed and by requiring the applicant, the city staff and any interested
members of the public to reduce their comments and arguments into written
submissions to the councilor board. This requirement also means that city staff
will need to make sure that any facts or arguments on which the councilor board
may rely on in denying a request are in fact included in the transcribed hearing or
written filings submitted to the councilor board before its decision is made. That
decision also must be in writing and contain reasons that are consistent with the
Act's requirements. Municipalities should carefully consult with their city
attorneys to implement this requirement.
5. As long as wireless telecommunications facilities meet standards to be
set by the FCC, a local government may not base any decision denying a
September 9, 1996
Agenda Item K
Page 5
request to construct such facilities on the ground that radio frequency
emissions from the facilities will be harmful to the environment or health
of residents.
The Act gives the FCC, not local governments, the sole authority to determine
what standards wireless facilities must meet to ensure that their radio frequency
emissions do not harm humans or the environment. While local governments can
require the facilities to comply with FCC emission standards, local governments
may not adopt their own standards. This means that, as long as the facilities meet
FCC emission standards, concerns about the effects of emissions from radio
towers on the health of nearby residents is not a permissible reason for making
zoning decisions about the placement of wireless telecommunications facilities.
NOTE: The above information is taken from the National League of
Cities Guide entitled "The Telecommunications Act of 1996: What It
Means to .Local Governments"'.
2) The approximate height of the major transmission towers going through the
City is ninety five (95) feet.
3) The Board of Adjustment, at their meeting of November 29, 1990, granted
variances to the height restrictions (twenty five (25) feet at the time) for the
Florida Power Corporation substation. The Board granted nine (9) structures to
be sixty (60) feet in height and one (1) structure to be eighty (80) feet in height.
4) The Board of Adjustment, at their meeting of February 7,1991, granted a
variance to the height restriction of fifty (50) feet at 1200 Belle Avenue (C-2
zoning) to construct a communications tower with a height of one hundred eighty
(180) feet.
September 9, 1996
Agenda Item K
Page 6
5) The Board of Adjustment, at their meeting of March 7, 1991, granted a
variance to the height restriction offifty (50) feet at Central Winds Park (C-1
zoning) to construct ball field light poles to a maximum height of seventy five (75)
feet.
6) All property owners affected by this request have been notified according to
Code requirements.
7) The Board of Adjustment is to hear these requests at their meeting scheduled
for September 5, 1996. Their recommendations will be provided to the
Commission as supplemental information to this item on September 6, 1996
8) The two (2) requests were incorporated into one (1) agenda item because the
information furnished is approximately 99% identical.
CONCLUSIONS:
The applicants' proposals to locate telecommunications towers in Winter Springs
is consistent with the Telecommunications Act of 1996. Code Section 20-83(h)
provides the Commission authority to approve Board of Adjustment
recommendations allowing height variances. There is precedence in the City for
approval of towers of this height. The actions of the Board of Adjustment will be
provided to the Commission in a separate report.
RECOMMENDA TION:
The recommendation will be forthcoming on September 6, 1996, after the Board
of Adjustment meets.
ATTACHMENTS:
National League of Cities Guide entitled "The Telecommunications Act of 1996:
What It Means to Local Governments"
" ,.
September 9, 1996
Agenda Item K
Page 7
Location Map of Florida Power Corporation Substation with approximate location
of tower depicted
Florida Power Corporation outlining request for special exception (variance)
Location Map of West Reclamation Facility with approximate location of tower
depicted
Photo ofNarcoossee Substation showing a similar monopole which is being
requested.
COMMISSION ACTION:
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REQUEST FOR A SPECIAL EXCEPTION
PCS PrimeCo / Florida Power Corporation respectfully submits this letter in support of its
application to City of Winter Springs for a permit to erect a telecommunications monopole
located on an existing electrical substation (Winter Springs Substation) approximately 1.5
miles south of the intersection of CR-434 and CR-4l9, at the intersection of Panama and
Shore Roads. PCS PrimeCo (Primeco) is a telecommunications company licensed by the
F. C. C. which is in the process of building an Personal Communication Service ( PCS )
wireless communications network across Florida.
Primeco has entered into a lease with Florida Power Corporation to install a 120' concrete
monopole and three small equipment cabinets (30'x30'X60') located at the base of the
monopole which will house the supporting electronic equipment, adjacent to the fenced area
of the substation. The substation property is 11.75 acres and is zoned R -IAA.
1. That the establishment, maintenance or operation of the Special Exeception will not be
detrimental to or endanger the public health, safety, or general welfare.
Pimeco will obtain Federal Aviation Administration ('FAA') required approval for the
construction and operation of the monopole at this location, in addition to an endorsement
from the F.C.C. The obligations of the F.C.C. licensing are quite extensive, to ensure
that Primeco's relied upon wireless communications service is provided in a safe and
uniform manner throughout its network. The subject site was carefully selected in order
to meet the system-wide engineering requirements at the location and in a manner which
will have a minimal impact on adjacent or nearby properties.
2. That the location of the Special Exception conforms to the City of Winter Springs
Comprehensive Plan and other applicable regulations.
3. That the Special Exception will be no more injurious, economically or otherwise, to
adjacent property or improvements than would any use permitting in the zoning district.
The entire site will be fenced and locked. This facility will not interfere with the
television and radio reception in the surrounding area and will not have any impact on the
provision of the city. It follows that the facility is compatible with the adjacent
properties and will not have adverse effects on these properties. As a co-located facility
this telecommunications site will serve the community as well as fostering increased
communications and safety, thereby supporting development in the area. The
communication facility will be operated continuously; however, since the facility is
unmanned, whether the facility is operating or not would be imperceptible to onlookers
or adjacent property owners. Thus, there is nothing to endanger the public health, safety
or general welfare.
4. That the establishment of this Special Exception, with the existing design and buffering,
will not impede the normal and orderly development and improvement of adjacent
property for uses permitting by the Zoning District.
5. That adequate utilities, access roads, drainage, and other necessary facilities are provided.
As shown on the attached site plan, acces~ will be provided by the existing substation
development. Other than that, since the facility is unmanned on-site parking, loading,
unloading and drainage are not applicable. Water and sewage disposal facilities will not
be needed since this site will be unmanned. Electrical power will be provided by Florida
Power Corporation.
6. That adequate measures are taken to provide ingress and egress designed to minimize
traffic congestion on public roads. With regard to ingress and egress to the
communications facility, the facility will be unmanned and will be visited on an average
of once per month for routine maintenance purposes. The effect on traffic and pedestrian
travel will be negligible.
7. That the Special Exception shall conform to the applicable regulations for structures, lots
and setbacks in the zoning district, requirements regulations for structures, lots and
setbacks in the zoning district, requirements as the Board may impose. All setback
requirements have been met according to applicable regulations. The facility does not
emit noise, glare or odor nor does it have signs or traffic congestion.
Primeco's wireless network system will work muchlike the cellular companies. Primeco's
F. C. C. license requires it to operate its system in a defmed service region using designated
radio frequencies ( 1900Mhz). Each site must be precisel{located relative to other sites.
Primeco's grid system must reflect the contours and topography of the area and the radius of
the antenna's reliable transmission. Primeco' s network dictates that a site be at this location
to avoid a gap in its service to this area of Winter Springs.
In conclusion, Primeco / Florida Power Corp. respectfully, requests that permission to erect
this communications pole be granted.
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TABLE OF CONTENTS
Preface .......................................................................................................................................... i
Introduction.... .............. ................ ....... ....... .......... .... .................. ..... .... ... .............. ............. ....... ..1
Chapter 1: A Brief History of Telecommunications ................................................................5
Chapter 2: Overview of the Telecommunications Act of 1996 ..............................................9
Chapter 3: Removal of Barriers to Entry to Provision of Tekcommunications Services......13
Chapter 4: Provision of Telecommunications Services by Cable Operators ........................17
Chapter 5: Provision of Cable and Video Services by Telephone Companies ....................19
Chapter 6: Changes to the Cable Act ....................................................................................23
Chapter 7: Impact of the Act on Local Zoning Power ..........................................................27
Chapter 8: Effects on Local Taxation...... ..................... ...... ............ ............ .......... ............. ......31
Conclusion................................................................................................................................3 3
Glossary ........... ........ .................................................................................................................3 5
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Preface.
Enactment of the Telecommunications Act of 1996 presents local governments with many new challenges and opportunities. To
ensure that municipal officials understand the benefic.s-and the pirfalls--of this new law, the National League of Cities has
published this guidebook for local government leaders.
This primer provides an overview of the Telecommunications Act of 1996 and what it will mean for your community. It explains
how this new legislation affects issues of hiscorical importance co local governments, such as local ability co manage and receive
compensation for the use of the public rights-of-way, protection of local zoning and taxing authority, and cable rate deregulation. It
also provides a short overview of how selected provisions of the Act are intended co foster competition and deregulation in the
communications industry generally.
This guidebook does not provide an exhaustive, detailed explanation of every provision of the new law. Instead, it focuses on key
issues of importance co local governments so that local leaders can respond co the many questions they will receive from
constituents and induscry representatatives.
Local officials will playa key, continuing role in defining parameters and setting policies to ensure that community needs are
considered and protected as the information superhighway develops. In that sense, enactment of the Telcommunications Act of
1996 is a beginning. As the Federal Communications Commission begins co promulgate rules defining how the federal legislation
will be implemented, municipal leaders should be prepared to comment on rules that are likely co have the greatest impacts locally.
Moreover, city officials should be prepared co contact state legislacors and governors co protect local interests and ensure a role for
local governments in the development of the information superhighway.
This publication was drafted by the attorneys at the law firm of Miller, Canfield, Paddock and Scone, P.L.e. Special thanks are due
to the firm's arrorneys--ll11man Lay, Nicholas Miller, Joseph Van Eaton, and Matthew Ames--for the time they spent working on
this publication. We would also like co gratefully acknowledge Public Technology; Inc., whose financial support was essential in
order for NLC co produce this publication.
NLC gratefully acknowledges the editing on this book done by NLC staff members Renee Winsky, Manager, Local Government
Services, and Barrie Tab~n, Senior Legislative Counsel. Additional thanks go co NLC staff Jeff Retcher, Director, Center for Public
Affairs;' Frank Shafroth, Direccor, Center for Policy and Federal Relations; Camille Kellogg, Marketing Communications Manager,
and Susan Teerz, Graphic Artist. Christine Becker, Deputy Director, provided general oversight for this project.
We hope this guidebook contributes co the development of more effective telecommunications policies and programs in the
nation's cities and cowns.
Donald J. Borut
Executive Director
National League of Cities
,'l(ot
INTRODUCTION
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"The bill President Clinton signed today sweeps
away the old regulatory boundaries between
cable and telephone, between long~distance and
local exchange companies. It heralds an exciting
win-win era for the consumer and for the
telecommunications industry as well."
-Raymond W. Smith, CEO
Bell Atlantic Corporation
"The President's signature on this legislation
unleashes a new era of competition in
communications services . . .. The bipartisan
and industry support for the Telecommunications
Act of 1996 demonstrates what we've said for
twelve years - America's future is too important
to leave on hold."
-John L. Clendenin,
Chairman and CEO
BellSouth Corporation
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"Just a few years ago, the idea that consumers
would have a choice in local phone service or
that cable and telephone companies would soon
go head~to~head to serve American consumers
would have been virtually unthinkable. Now,
this landmark legislation provides a blueprint for
competition and choice. And the cable industry
is ready to compete and provide new services,
"new progTamming, and new technologies."
-Decker Ansrrom. President
National Cable Television Association
"Mr. Speaker, earlier it was said all elements of
industry liked this bilL 1 have no particular beef
with the industry, but I would suggest that when
all elements of industry like the bill, probably the
taxpayers and the consumers have reasons to
worry. "
- Barney Frank. Member
U.S. House of Representatives D-Mass.
1
The Telecommunications Act of 1996: What It Means to Local Governments
Telecommunications: Is It Too Complicated
to Comprehend?
Have you heard? Congress just passed a new law entitled the
Telecommunications Act of 1996. Is this a maccer better left co
experts? Telecommunications technologies are complicated
and high-tech. They really do require "rocket scientists" co
understand! And the jargon! The language of
telecommunications doesn't come close co plain English.
Consider, for example, these terms: What are HDTV, CATV,
MMDS, OVS, PCS, DBS, MF] or RBOCs? What are
monopolies of scale, scope and density?
Don't be discouraged. The new law is a huge statute and is
very complex. That is because it couches every single existing
federal law affecting communications, and tries co couch some
state and local laws as well. But the new Act is surprisingly
simple in concept and execution.
Getting Ready
Your community needs your leadership co get the benefits and
avoid the problems. You need co lUlderstand both the good
and the bad. Here are some things the new Act allows: beccer,
and more cost effective local government services through
creative use of public rights-of-way and procurement strategies;
new potential revenue sources for your budget through fair
rental payments for use of public rights-of-way; more vibrant
local economy through rapid entry of new vendors applying
new technologies co serve local businesses; and better
education and health services through expanded and improved
technologies available at reduced rates co qualified schools and
public institutions.
On the other hand, you may face the following new problems:
your costs of street and sewer maintenance may triple or
quadruple through the repeated and unsupervised construction
in your rights-of-way by multiple lUlregulated
telecommunications companies; your government's phone bills
may double or triple through decreased regulation of local
phone rates long before there is any genuine competitive
alternative co your local exchange telephone company; or more
social and economic isolation of the middle class and the poor
may occur through the lack of uniform, reasonable prices and
lUliversally available new services.
The Near Future
You can expect co face the following types of issues. They will
arise first in urban and commercialized.~uburban areas, and
then in upper income residential and smaller business centers.
More rural areas will have co wait.
You will face new demands on local rights-of-way. Many
companies, from the dominant local telephone company to
small, single-purpose companies, will want co rrench your
srreets. If not handled properly, this landrush could result in
your community losing potential revenue sources and mcurring
new expenses, resulting in higher ta.xes.
I\s laroe consumers of local telephone services, local
oove~ments will have new alternatives for meeting their
'"
telecommunications needs. But you will need co develop
strategies co avoid being trapped into monopoly prices in this
new world. You will need co marshal your assets - public
rights-of-way and budget dollars - co get the best deal for
taxpayers.
Not all telecommunications consumers will be equal in this
new world. Large telecommlUlications users will enjoy wider
choices at declining prices. Small businesses, residential users,
and low to middle income families, on the other hand, may not
have real competitive alternatives for a long time.
Local zoning b~ards will face a flood of requests for siting of
cellular cowers and other communications facilities.
Local ta.xes or franchise fees on telephone companies will be
challenged as unfair if other telecommunications service
providers are not covered by the taxes or fees, or nor creared
the same.
You have lirde rime. But you are not alone. Every other
jurisdiction in your region will face the same problems in the
same timeframe. Share information. Cooperate. Participate.
2
Introduction
Municipal Officials Are Up to the Task
Remember, if you can build roads, plan a city, deliver services,
and manage a workforce, then you can also manage
telecommunications and its impact on your community. Here
are a few principles to keep in mind.
. Principle One: Local governments are landlords of most
telecommunications companies. You own the public
rights-of-way in public trust. Most telecommunications
companies place wire and other facilities on, over or under
those rights-of-way. Taxpayers have a right to fair return
for private businesses' use of public property. Historic
prices for right-of-way use are not relevant in today's
market. There is no sound reason to give away valuable
public property for free.
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. Principle Two: Local governments are large users of
telecommunications. Remember, everyone wants your
business, but they will want to charge you above-market
prices if they can. If you procure telecommunications.
services carefully, you can save money and deliver new and
better governmental services more efficiently.
. Principle Three: Telecommunications companies live by
the same universal, economic rules as everyone else.
Competition is uncomfortable but healthy. It spurs
investment and innovation, better services and lower
prices. But, wishing for competition doesn't make it
happen. Some markets, when deregulated, simply become
unregulated monopolies. The company that enjoys such a
monopoly in one market can compete unfairly in other
markets. Remember though, businesses should pay fair
market prices for the public rights-of-way they consume.
Otherwise, the r~sulting local government subsidy of those
businesses will distort competition.
. Principle Four: Cities will need to participate actively to
protect their interests and the interests of their residents.
Because the Act sweeps broadly, it contains a lot of gaps
and unanswered questions. These questions will be filled
in by the Federal Communications Commission ("FCC"),
the courtS, state legislatures and - importantly - by
municipal officials like you. In addition, you c~ be sure
that the various telecommunications industries will
participate vigorously in each of these forums. Cities
should participate actively as well, or they could lose
valuable rights.
3
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The Telecommunications Act of 1996: What It Means to Local Governments
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CHAPTER ONE
A Brief History of Telecommunications
It's difficult to understand the new Telecommunications Act
unless you have some feel for the history that led up to it.
Historically, the telephone, cable, and broadcast industries
operated under separate - and quite different - regulatory
structures. Regulation varied, but each industry was regulated
in a manner that was based on the assumption that each
industry was unrelated to the other, and that each had
monopolistic characteristics. New technologies have raised the
possibility that each of these industries can compete with one
another, and that new entrants can compete as well. The new
Act is based on the premise that this possibility will in fact
occur - and occur soon.
The Communications Act of 1934
In 1934, Congress passed the grand-daddy of all federal
communications law. The 1934 Act established the Federal
Communications Commission. It required the FCC to regulate
interstate telephone services and left: intrastate services to state
regulators. The law also established that the airwaves belong to
the federal government and authorized the FCC to grant
licenses for broadcast and other "wireless" services in the public
interest.
To handle telephone regulation, the FCC established an
implicit regulatory partnership with the states to oversee the
telephone industry. A fundamental premise was that telephone
companies, both local and long distance, were "common
carriers." In other words, telephone carriers were only in the
business of transporting the messages of others - they were
prohibited from controlling the content of the telephone
messages they carried. In time, a uniform state and federal
system of rate-of-rerurn price regulation and investment
oversight over the telephone industry developed. The system
included a subsidy mechanism to average long distance rates
. nationwide.
The AT&T Monopoly
Since the rum of the century, AT&T dominated the telephone
industry, enjoying a virtual monopoly over not only long
distance service, but also local telephone service through the
local Bell operating companies that AT&T owned. The
industry invested huge amounts of money in copper wires that
were expensive to build but cheap to maintain and operate.
After World War II, microwave radio links began to replace
cross-country copper wires for long distance circuits.
Microwave was cheaper to build and more reliable over long
distances. The Rural Electrification Administration extended
loans to locar telephone cooperatives and tural telephone
companies" to expand telephone service into small towns and
farms.
The Department of Justice achieved the breakup of AT&T on
January 1, 1984. In a consent decree with the government
known as the Modified Final Judgment ("MFJ"), AT&T agreed
to relinquish all of its local telephone exchange companies in
return for the right to compete openly in computer,
information and long distance services. The local Bell
operating companies formerly owned by AT&T were broken
into seven Regional Bell Operating Companies ("RBOCs").
AT&T also agreed to divestiture terms that prohibited the new
RBOCs from entering into any new businesses other than local
telephone service. The federal district COurt responsible for
enforcing the MF] has gradually relaxed this absolute
prohibition on the RBOCs over the last twelve years. But the
MFJ remained the law over the RBOCs.
The rationale for the MF] agreement is important. The
Department of Justice, the court and AT&T all agreed that the
provision of local telephone service was a natural monopoly. In
other words, most of the costs of providing local telephone
5
The Telecommunications Act of 1996: What It Means to Local Governments
service were in building the network of local copper lines that
run from each business or home to the local telephone
company's switching offices ("exchanges"). Once built, the
ongoing costs to operate the local telephone exchanges and the
lines to customer locations were relatively low. The number of
local calls on the wires did not increase the company's costs.
Since the only way to compete would be to build a duplicate
local network, it was difficult, if not impossible, for a second
local company to enter the exchange area and successfully
over-build the original telephone company. Long distance
service, in contrast, could be much more competitive because
the up-frOnt network costs were lower. Connections between
switching offices and long distance lines had much smaller
economies of scale.
Television Enters the Picture
Television displaced radio as the leading electronic mass media
in the 1950s. Unlike telephone common carriers, broadcast
licensees were given complete control over the content of the
information they transmitted. The FCC attempted, however,
to require broadcasters to abide by "public trustee" obligations.
Broadcast networks dominated the broadcast industry by
producing mass audience appeal programming. The network
influence is a function of economics. Local broadcasters can
get larger audiences for less cost by running network shows
than by producing their own local programming. The
networks became the major outlet for all video programming,
surpassing movie theaters in annual revenues paid to studios.
Network control was enhanced by an FCC post-war decision ro
limit the number of television licenses in each major urban
market. The FCC argued that television was an unproven
technology and investors needed assurances of large audiences
and limited competition. Fewer licenses meant less
competition. The FCC tried to counteract this effect, at least
partially, through strict limits on the number of stations anyone
could own.
Then Came Cable
Before 1976, cable television was a small entrepreneur's
business. Cable was nothing more than a means of
retransmitting television broadcast signals to communities with
poor off-air television reception. Cable reached barely ten
percent of the nation's televisions, and mostly in rural areas.
This changed in 1976 when HBO started to provide television
programs by satellite. HBO was soon followed by several other
satellite programming services unique to cable. Cable
operators then had an unrivaled product to offer major
suburban and urban area viewers. The gold-rush for major-
market cable franchises was on. Within a few years. the
industry went from passing 20 percent of U.S. television
households to over 90 percent of television households. Today,
more than 60 percent of television households in the nation
subscribe to cable. And cable systems were, like the local
telephone network, a natural monopoly. The costs of operating
a system varied little with the number of subscribers or
television channels on the system. So over-builders were rare
and could not survive.
Faced with de-facto monopolies, cities began to use cable
franchises to regulate prices and behavior of cable companies.
Cities also began to use the franchise bidding process to
recapture for the public the fair value for the use of the public
rights-of-way occupied by cable systems. The cable industry
appealed first to the FCC and then to Congress for relief from
the local cable franchise process.
In 1984, Congress passed the first Cable Act. It deregulated
cable rates, but endorsed the cable franchise process as a
mechanism for obtaining community benefits.
In response to rate deregulation, cable rates soared. In 1992,
Congress responded by amending the Cable Act to allow rate
regulation, subject to FCC oversight and control.
Fiber Optics and Convergence
In the late 1980s and early 1990s, technology convergence hit
telephony, cable television, video, music programmers and the
computer industry. The form: digital transmission on strands
of fiber optic glass.
Remember those early Sprint ads where you could hear a pin
drop over a glass fiber? Fiber optics first entered telephony on
high-density, long distance routes. Light on thin glass strands
could carry many more messages than copper wires. And light
on fiber did not dissipate over long distances.
These features made fiber more attractive than copper wire.
But fiber optical transmission requires digital signals.
Traditional telephone and cable signals, however, were sent in
an analog format. So both industries faced an expensive
conversion process. The telephone industry converted to fiber
in those parts of the telephone network that had heavy "trunk
line" traffic that could justify the cost of conversion. Low-
density routes were left to pre-existing analog copper
technology.
6
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Chapter One
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and fewer distinctions among them.
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With time, fiber construction became routine in me telephone
industry on high-densiry routes. And digital transmission
became common in all parts of the national telephone network
except the local line berween cuscomers and the first switching
office.
As fiber optic technology evolved in the telephone nerwork,
cable television operarors discovered fiber was actually cheaper
co build and operate than traditional coaxial copper cable.
"Fiber rebuilds" became common in the cable industry, with
fiber replacing coaxial cable in the backbone of cable nerworks,
leaving only the last portion direcdy in fronr of subscriber
homes as analog copper coa.'Xial cable. For the first time, cable
operacors had wires (fiber optic strands) through major arteries
of cities that could carry high quality, rwo-way digital signals.
Today, telephone, cable television, and computer nerworks all
choose a common technology ro build new systems: digital
aansmission. And fiber is the aansmission medium of choice
for lengthy and/or high-densiry routes. Bur me
telecommunications world is far from being all fiber and digital.
There are roo many miles of copper wires and too many analog
telephones and televisions still in place. But the speed of
evolution is accelerating. E'XpertS anticipate that in ten years,
nearly all televisions could be digital format. The last analog
elements will be the "last mile" of local telephone wire and
local cable television wire, and perhaps me television set. At
all other levels of the distribution nerworks, whether cable or
telephone, the technology of choice for me future is the
same-digital transmission and fiber optics.
Technology Convergence Forces Legal
Convergence
This short hiscory reveals a pattern: each communications
industry had its own unique technology-and monopoly. In
response, Congress and the states enacted differenr laws and
regulatiOns for telephone, for cable television, for broadcast,
and for computers. Each industry started as a distinct
technology with strong natural monopoly characteristics. The
legislatures reacted by passing separate laws adapted co each
separate technology and market.
The new 1996 Telecommunications Act seeks to adapt federal
law ro changing technological reality. The Act rests on the
fundamenral premise that the various media industries -
cable, telephone, and broadcast - are less and less
technologically distinct, and thus the law should draw fewer
What this technological convergence means is that, to an ever
greater extenr in me future, industries that hiscorically have
not competed with another -like cable, local telephone, long
distance telephone and wireless radio - will begin ro do so.
The premise of the new Act is mat, if the regulacory lines
berween the industries are removed - and everyone is allowed
to enter and compete in everyone else's market - then new
competition will emerge, displacing the need for regulation to
protect consumers from monopoly abuse.
If all of this sounds like a grand experimenr based on faith in
future developments, that's because it is. Even industry leaders
frankly admit they do not know where these changes will lead.
7
. , . ...... ' : ,,', "'.",' ,: ,:... ,"", , ;"" ' ..' ,
The Telecommunications Act of 1996: What It Means to Local Governments
8
CHAPTER TWO
Overview of The Telecommunications Act of 1996
.
-
The new Act is designed to remove regulatory barriers and
- encourage competition among all rypes of communications
companies. It allows local telephone companies into the long
distance, cable television, and phone equipment manufacturing
markets. It allows long distance telephone companies, cable
operators, cellular providers and others into the local telephone
market. And the Act encourages satellite services to compete
with cable. But the Act also loosens telephone and cable rate
regulation. And it loosens regulations of television and radio
broadcasters as well. The Act also contains provisions
intended to preserve universal service to poorer areas and to
restrict children's access to violent and sexually explicit
programming on cable, broadcast and the Internet.
-
What Is the Telecommunications Act of 19961
The new Act couches every existing electronic
communications industry. The legislation expresses very broad
principles but leaves lots of gaps that regulators and industries
will have co fill in.
Public information about the Act has been sketchy. The
general media has covered the progress of the legislation, but
not the content. Most commentary has been vague and only
begins to describe the real workings of the statute. Most
citizens have heard of the information superhighway, but know
little about the details.
This chapter describes the Act in broad terms. It is not a legal
analysis of the details of the legislation. Think of it as an
orientation tour of this important legislation.
Impetus Behind the Act
The impetus behind the Act was, in a word - competition.
The telephone, cable television, and broadcast industries were
converging toward common technologies with digital formats
for content, and fiberoptics and wireless technologies for
transmission. The industries are capable of competing with
each other in many new ways. They also are burdened with
inconsistent historical laws and regulations that hamper their
abiliry to compete.
So, Congress sought to eliminate regulatory requirements chat
interfere with competition and to give providers authority to
enter new markets. If competition does develop, service will
improve and prices will fall.
What the Act Does
The Act encourages competition wherever possible.
Specifically, the Act opens local telephone exchange service to
competition; allows the seven RBOCs to enter new lines of
business, long distance, equiprment manufacturing, and
information services chrough seperate subsidiaries; allows cable
television operators into local telephone services; allows local
telephone companies to offer cable television services and
deregulates cable operators; and encourages new services (such
as cellular, Direct Broadcast Satellite, and wireless cable) to
compete with telephone and cable television companies where
possible.
The Act gives broadcasters greater regulatory flexibility. For
example, the Act greatly rela.xes current limits on the number
of radio or television stations one company can own. One
company may own up co 8 radio stations in a single major
media market. One company may own an unlimited number
of television stations as long as all of chose stations do not
reach more chan 35 percent of the national audience. Terms of
broadcast licenses are extended to 8 years, and the incumbent
broadcaster is given more protection at license renewal.
9
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The Telecommunications Act of 1996: What It Means to Local Governments
The Act regulates obscene, indecent, and violent program
content. For example, sending obscene or "indecent" content
on the Internet is illegal. Cable television operators must
scramble or block sexually explicit adult or indecent
programming. Cable television operators may also refuse to
transmit "indecent" public access programming. New
televisions must have a V-chip installed to allow blocking of
violent programming. Broadcasters and cable operators are
encouraged to adopt a rating system for violent and sexually
explicit programming.
The Act also establishes a Telecommunications Development
Fund and a National Education Technology Funding
Corporation. The Development Fund is a federal loan fund to
stimulate small business entry into telecommunications. The
Education Technology Funding Corporation receives funds
from any source to sti'mulate investment in "education
technology infrastructure."
Direct Effects of the Act on Your Community
Local governments shape communications activities. The new
Act recognizes this fact and ratifies local authority in
significant respects. But the Act also limits local authority in
other areas. Effects of the Act on your community include:
1. Universal Service
The legislation attempts to protect against monopoly
pricing of basic telephone services. It does this through
creation of a class of basic service called "Universal
Service." Rates for telecommunications services that the
FCC or state public service commissions classify as parr of
universal service must be "jUSt, reasonable and affordable."
The FCC can determine what COSts of
telecommunications facilities are allocable to universal
service. The FCC may not, however, use the rate-of-
return COSt principles it has used in the past.
Universal service will be available everywhere in the
country, including rural and urban areas. Universal service
rates must be uniform throughout the country. A
company that offers universal service at rates below its
cOSts qualifies for a subsidy from a universal service fund
that is paid from all telecommunications service providers.
A few special classes of users will get special rates for
universal service: health care providers; primary/secondary
schools; and libraries.
Taken together, these are new legal concepts, and it is
impossible to predict how the regulators will apply these
tests and what rate levels will result. There is a reasonable
possibility that basic rates for basic telephone services
could double or triple--or stay the same.
.
2. Expansion of Competition
The Act opens the legal opportunity for long distance
companies to offer local telephone service, for local
telephone companies to offer long distance services and
cable television service, and for local cable television
operators to offer all forms of telephone services.
,.
Observers suggest that vigorous competition is likely to
develop most rapidly in services and facilities for long
distance services and for large business users of
telecommunications. This may drive down the price of
long-distance rates between urban areas and the overall
COSt of telecommunications for larger businesses.
3. Residential and Small Business Telephone
Rates
Calling for competition does nor guarantee it will develop.
There remains strong evidence that local telephone service
to residential and small businesses still exhibits strong
economies of scale. The same appears true for urban cable
television service. If competition does not develop in these
markets, and price regulation is not maintained, local
telephone and cable rates could skyrocket.
4. Cable Television Rates
The Act continues the trend started by the FCC in
.. removing all teeth from cable rate regulation.
Many small cable companies may see their rates
deregulated immediately. Others may be deregulated
whenever the local telephone company claims it offers
service in some parr of the franchise territory. And all
cable rates will be substantially deregulated by March
1999. In addition, specific provisions make meaningful
rate regulation in the interim largely a sham.
Cable operators are speaking openly of $3-$6/month rate
increases in 1996. Future rate increases will be determined
by whether and when telephone companies choose to
overbuild cable companies. Many industry observers
predict that will not occur to any significant degree until
after the turn of the century, if then.
10
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Chapter Two
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Some Conclusions - or Simple Guideposts
Local governments comrol three important elemems in the
new telecommunications mix: 1) local governments comrol
the price of real estate - the public rights-of-way - that the
wired companies want to.use; 2) local governments are a major
customer and source of funding to the industry in that they are
me largest local telephone service customer, the funder of
education, health services, and libraries and a potemiallender
of construction capital through public bonds; and 3) local
governments retain their residual police power to regulate local
business practices and to protect consumers.
Technology is helping to open markets because new technology
is cheaper and commonly available to all the players. In
addition, telecommunications providers are converging on the
same least-cost solutions for transmission.
Not all markets will be competitive, regardless of what the law
permits. Do not expect overbuilding of residential and small
business local exchange lines. New entrants in the local
telephone service market (long distance companies, cable
television operators, and competitive access providers) will
build only to high-density point locations. Elsewh~re, they will
cominue to rely on the wires of the traditional local telephone
company to reach Customers. Cable television lines are still
difficult and expensive to convert to telephone service.
You can expect, in areas where competition does not develop,
that basic telephone prices will escalate dramatically unless
there is strong regulatory action. In addition, cable rates will
escalate over the next several years as the FCC continues to
withdraw from effective rate regulation.
11
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The Telecommunications Act of 1996: What It Means to Local Governments
12
I
CHAPTER THREE
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Removal of Barriers to Entry to Provision of Telecommunications
Services
The Act preempts all state and local laws that prohibit - or
have the effect of prohibiting - a business from providing
telecommunications services. But the Act also preserves: (1) all
state laws that non-discriminatorily promote universal service,
public safety and consumer protection; and (2) all state and
local laws that involve management of local rights-of-way or
require telecommunications providers to pay compensation for
use of local rights-of-way, as long as those laws are non-
discriminatory.
Probably the most important goal of the Telecommunications
Act of 1996 is to encourage competition in the provision of all
types of communications services - from traditional telephone
and other voice and data services, to traditional cable and
other video services. Both the telephone and cable industries
argued ro Congress that state and local regulation, franchising
and permitting requirements were an obstacle to competition,
making it more difficult for businesses to emer and provide
telecommunications services in various markets.
Rightly or \\oTongly, many members of Congress were swayed by
the industries' argumems. As a result, the Act comains a
section entitled "Removal of Barriers to Emry'~ that is directed
at state and local governments.
The "Barriers to Entry" section overrides any state or iocallaw,
ordinance or requiremem that prohibits any business or other
person from providing any telecommunications services. This
limitation also reaches any scate or local law, ordinance or
requirement that, while not prohibiting the provision of
telecommunications services, has the effect in practice of
prohibiting a business from providing such services.
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The statu[~ does not describe what types of state or local laws
or requirements might be considered as prohibiting or having
the effect of prohibiting someone from providing
telecommunications services. New telecommunications
providers seeking to compete with the local telephone
company, however, are likely to claim that the new law
nullifies virtually any kind of municipal franchise, ta.x or
permitting requirement that the providers don't like.
Municipalities should take such claims with a healthy grain of
salt. In fact, what types of municipal laws or requirements
would be considered barriers to entry will have to be answered
based on the local law and facts in each individual communiry.
To be prepared for competitive entry, municipalities should do
rheir homework in advance and be thoroughly familiar with
applicable state laws and their own historical treatment of
rights-of-way users.
Safe Harbors
Although the Act does nor define what types of local laws or
requirements will be considered to be prohibited barriers to
13
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The Telecommunications Act of 1996: What It Means to Local Governments
entry, it does define two categories of state and local laws that
will not be considered barriers to entry. These permissible
types of state and local law are untouched by the Act. They
are "safe harbors" - as long as a local law or requirement falls
within one of the safe harbors, it will not be considered a
barrier to entry, regardless what effect the local law may have
on the ability of telecommunications providers to enter a
market.
Safe Harbor for Universal Senrice, Public Safety and
Consumer Protection
The first "safe harbor" is for state laws that are necessary to
promote universal service; protect public safety and welfare;
ensure continued quality of telecommunications services; and
protect the rights of consumers. To qualify for this "safe
harbor," a state law falling into any of these categories also
must be "competitively neutral." While undefined, that
probably means the law cannot favor one class of
telecommunications providers over another.
Interestingly, this "safe harbor" applies to "state" laws and
requirements. There is no reference to local laws or
requirements. The telecommunications industry will no doubt
claim chat chis "safe harbor" is restricted to state laws like
consumer protection laws and state public utility commission.
requirements. Since most local governments are political
subdivisions of the state, however, a good argument can be
made that this "safe harbor" applies to local governments as
well, as long as state law gives che local government authority
to act in these areas.
Safe Harbor for Rights-of-Way Management and
Compensation
The second "safe harbor" - and one of more importance to
most municipalities - relates to state and local laws
concerning compensation for, and management of, local streets
and rights-of-way. Local public streets and rights-of-way are
property that a local government holds on behalf of the public
and that is paid for by the taxpayers. All private businesses
that place wires, conduits or pipes over, on or under this public
property are therefore tenants of the public. And like any
property owner, the public - through its local government -
is entitled to compensation from those who use its property for
profit and to manage the use of that property to make sure it is
used efficiently and safely.
In enacting the new Telecommunications Act, Congress
specifically recognized and endorsed the rights of local
governments to manage this valuable local public property, and
to receive fair compensation for its use. The Act therefore
contains an explicit "safe harbor" for all non-discriminatory
local laws or requirements that either involve management of
local rights-of-way, or require telecommunications providers to
pay fair and reasonable compensation for their use of local
rights-of-way.
Local management and compensation requirements of this type
will not be considered barriers to entry, regardless what effect
they may have on entry, as long as those requirements are
imposed in a non-discriminatory manner.
At a minimum, chis means chat any non-discriminatory local
franchise fee or ta.x that a municipality imposes on all
telecommunications providers will be safe from attack under
the new Act. The same is true of any non-discriminatory
requirements relating to street use, such as street opening or
right-of-way permits, bonding, insurance and indemnity
requirements, and the like.
One task all municipalities will want to undertake immediately
is to review all of their current franchise, tax and right-of-way
relationships with telecommunications providers, such as the
local telephone company. Another task will be to research and
analyze any state law limitations on a municipality's taxing,
franchise and right-of-way authority. In some states,
municipalities may want to consider asking the state legislature
to modify state law to give municipalities more flexibility to
deal with these issues. At a minimum, municipalities will want
to be on the lookout for efforts by the telecommunications
14
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Chapter Three
industry to modify state laws to the industry's advantage and
municipalities'disadvantage.
Disputes about whether a particular local right-of-way
management or compensation requirement falls within the
"safe harbor" will be Jecided by a local state or federal court,
not by the FCC in Washington. A local court is likely to be a
far more favorable (and less expensive) forum for most
municipalities.
Preemption by the FCC
The Act also gives the FCC authority to preempt any state or
local law or requirement that is a "barrier to entry." There is,
however, a very important exception to this FCC authority -
an exception beneficial to municipalities. The FCC's authority
does not extend to determining whether a local law falls within
the "safe harbor" for local right-of-way management and
compensation.
.
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15
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The Telecommunications Act of 1996: What It Means to Local Governments
16
F
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CHAPTER FOUR
Provision of Telecommunications Services by Cable Operators
The 1996 Act allows cable operators to provide
telecommunications services over their cable systems. Cities
may require a cable operator to pay compensation for tts use of
rights-of-way to provide telecommunications services, but cities
may not do so through the cable television franchise process.
Cities must rely on their authority over telecommunications
service providers instead.
As discussed in the preceding chapters, a central purpose of the
1996 Act was to allow any entity to provide any
telecommunications service it chooses. One of Congress'
specific objectives was to encourage cable operators to provide
telecommunications services in competition with traditional
telephone companies.
In the past, the scope of services a cable operator may provide
was rypically determined chrough che local cable franchising
process chat Congress approved in che 1984 Cable Act. Thus,
if an opera cor wanted to provide telecommunications services
in addition to cable service, it often had to ask the city to
modify its cable franchise to authorize the operator to provide
additional services. Conversely, a city might have granted the
authority to use the cable system to provide ocher kinds of
services, contingent on the cable operator's payment of
franchise fees on its revenues from these other services. Cities
also had the authority to collect franchise fees on all the
revenues that an operator derived from operating its cable
system, including telecommunications service revenues. The
1996 Act changes those options.
The new Act makes the following changes:
. Unlike in the past, municipalities may not require cable
operatOrs to obtain cable franchises before rroviding
telecommunications services.
. Unlike in the past, cable operators providing
telecommunications services will not be bound by the
requirements of the 1984 Cable Act. Instead, they will be
governed only by the rules applicable to other
telecommunications providers.
. Municipalities may not use their cable franchising powers
to order a cable operator to stop providing a
telecommunications service, nor may they use those
powers to order an operator to stop operating its cable
system for the purpose of providing such services.
However, che Act does not prevent municipalities chat
have authority under state or local law from requiring all
telecommunications providers - including cable operators
- to obtain franchises to provide telecommunications
services or to pay compensation for use of the public
rights-of-way.
. Other than requiring a cable operator to provide public,
educational and government ("PEG") access facilities and
institutional networks, municipalities may not use the
cable franchising process to require cable operators to
provide any telecommunications services or facilities.
Note that this does not affect a municipality's authority to
require cable-related services or facilities. It also does not
affect any authority a municipality may have under state
law to franchise or tax telecommunications service
providers, including a cable operator that happens to
provide telecommunications services.
17
IIIiIll
The Telecommunications Act of 1996: What It Means to Local Governments
. Finally, under the Cable Act, a municipality may not
collect cable franchise fees on revenues that a cable
operator earns from telecommunications services. A city
may, however, as provided under state and local law,
collect fees or taxes on telecommunications services
provided by cable operators just as the city can from other
telecommunications service providers.
What This Means for Cities
Cities will now have to rely on state and local law, rather than
the Cable Act, to regulate and obtain compensation from cable
operators' provision of telecommunications services. In cities
where states permit the grant of telecommunications franchises
or the imposition of fees or taxes on telecommunications
providers cities will probably be less affected by this change in
law. Cities that do not already have telecommunications
taxing or franchising ordinances in place, however. will have to
implement the procedures required by their state laws if they
wish to continue to be able to manage fully their cable
operator's use of local rights-of-way and their ability to receive
full compensation for that use. In some states, cities may have
to lobby the state legislature for the needed authoriQ{.
Cities that do nothing may lose revenue and might be forced to
accommodate unregulated rights-of-way users. Cities that act
could retain control over management of their property and
receive fair compensation for its use.
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CHAPTER FIVE
Provision of Cable and Video Services by Telephone Companies
The new Act allows telephone companies to provide cable-like
video services in their local telephone service areas.
Depending on how a telephone company structures its
provision of video service, the telephone company may be
subject to local franchise-like obligations similar to those
imposed on cable operators. Does this mean that cable
companies and telephone companies will compete in the video
services market? Not necessarily: the Act also allows cable
companies and telephone companies to merge operations
under certain circumstances.
To understand the changes that the new Act makes concerning
telephone company provisions of cable-like video services, you
first have to understand a little bit about prior law. In the early
1970s, the FCC adopted rules largely prohibiting a local
telephone company from providing cable service in its local
telephone service area. This prohibition, often known as the
cable-telco crossownership rule, was incorporated into the 1984
. Cable Act passed by Congress.
The prohibition was originally based on the fear that local
telephone companies would come to dominate what was, in
the early 1970s, a fledgling cable industry. There also was a fear
that a single company providing both local telephone and
cable service would possess too much market power.
As a result of the cable-telco crossownership ruh~, your local
telephone company has long been prohibited from building a
cable system or providing cable service in your city. (There
were a few exceptions to this rule, but only for smallrural areas.)
As the cable industry grew in the 1980s, it became apparenc
that cable operators were no longer a fledgling industry in need
of protection from the larger telephone industry. To the
contrary, the cable industry itself became large and enjoyed a
monopoly in most cities and counties.
The most likely potencial competitor to a local cable operator
is the local telephone company. The reasons are fairly obvious:
the telephone company already has utility poles, conduits and
wire facilities in place, as well as a billing system, maintenance
and installation equipment and personnel. These resources
place the local telephone company in a uniquely favorable
position to enter and compete with the cable operator - far
mqre favorable than any other entrant, who would have to
acquire such resources from scratch.
The 1996 Act eliminates the cable-telco crossownership
p~ohibition. . It does so in a rather convoluted way, however.
Rather than simply eliminating the prohibition and allowing
the local telephone company to enter as a cable operator, the
new Act gives the telephone company various alternative ways
to enter the video market, but piaces special constraints on the
telephone company as well.
Options for Telephone CDmpanies
The legislation allows local telephone companies that want to
provide cable-like video services to select from among the
following four options.
1. The "Wireless" Option
A telephone company may provide cable service using so-
called "wireless" cable technologies. If a telephone
company opts for this approach, it need not obtain a Cable
Act franchise from the local municipality, as long as the
telephone company's wireless system is truly "wireless" -
that is, it does not cross any public rights-of-way with
wires.
19
The Telecommunications Act of 1996: What It Means to Local Governments
2. The "Common Carrier" Option
''Traditional Cable" Option v. "OVS" Option
A telephone company may distribute video programming
on a common carrier basis. Several local exchange carriers
provided a version of this service - known as "channel
service" - even before the new Act was passed. They
built cable systems and the cable operator simply leased
the system from the telephone company. If a telephone
company Opts for the pure common carrier approach, it
need not obtain a Cable Act franchise from the
municipality. The Act, however, leaves open the question
of whether, where state law requires telephone companies
to obtain a local telephone municipal franchise, a
municipality may require the telephone company to
amend its franchise or get a new franchise.
3. The "Traditional Cable" Option
A telephone company may opt to provide video
programming in some other manner than those described
above, including as a traditional cable operator. If it does,
the telephone company is fully subject to aU the provisions
of the Cable Act, including franchising requirements,
unless it constructs an FCC-certified "open video system"
("OVS").
4. The "OVS" Option
A telephone company may elect to enter as an FCC-
certified OVS provider. Unlike a traditional cable operator,
an OVS operaror must allow others to purchase capacity
from it at JUSt and reasonable, nondiscriminatory rates. It
will also be required to satisfy some FCC-established rules
that will require the OVS operator to pay a fee to local
governments for use of rights-of-way, and to provide
suPPOrt for PEG access channels and facilities on the OVS
system - just as a cable operator must provide support for
PEG access.
Traditional cable systems must set aside capacity for use by
others, but the amount of capacity set aside is more limited-
PEG access channels plus commercial leased access channels
(commercial leased access obligations top out at 15 percent for
systems with 55 or more channels). An OVS provider, in
contrast, must make available up to two-thirds of system
capacity for use by others, in addition to PEG access
obligations.
Traditional cable operators have been able to effectively
eliminate or reduce their leased access obligations by
demanding high rates. Whether OVS operators wiU be able to
limit their obligations in the same manner will depend on the
outcome of an FCC rulemaking that will implement the OVS
provisions of the new Act. The rule making will determine, for
example, what it means to provide capacity at rates that are
both "nondiscriminatory" and "just and reasonable.." The
rulemaking will also determine what OVS system capacity may
be used for. The statute states that an OVS provider must set
aside capacity for use by others to provide "video
programming," which is defined as programming comparable to
programming provided by a television broadcast network. The
FCC may need to decide whether pay-per-view programming,
video on demand, or other advanced video services are "video
programming.""
OVS systems and traditional cable systems will vary in another
important respect: certified OVS systems will not be subject to
the Cable Act ~equirement of obtaining a local cable franchise.
They may, howe:'er, be required to obtain a franchise or other
authorization from local governments under other provisions of
state law.
Even though OVS systems are not required to obtain a Cable
Act franchise, they are subject to certain cable franchise-like
requirements. For example, an OVS system may be required to
set aside channels and to provide suPPOrt for PEG access. They
may also be required to pay a fee in lieu of a franchise fee "on
the gross revenues of the operator for the provision of cable
service imposed by a local franchising authority or other
governmental entity." The rate at which the fees are imposed
cannot exceed the rate at which franchise fees are imposed on
any cable operator. The meaning of this language will be
determined in regulatiOns that the FCC is required to adopt by
August 1996. OVS systems may also be required to comply
with privacy and Equal Employment Opportunity (EEO)
regulations adopted by the FCC and by state or local
governments.
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Chapter Five
Unfortun~tely, the new Act does nO( clearly state how the PEG
access and franchise fee requirements on OVS operators are to
be imposed or established. Again, the critical issues will be
determined in an FCC rulemaking. Whether, for example,
PEG access requirements imposed on OVS systems in any
given municipality are identical to those the municipality
imposes on its cable operacors may depend on the outcome of
that rule making. That outcome will be particularly important
co municipalities that have issued franchises to cable operators
containing "most favored nations" clauses.
OVS operators are specifically exempted from some provisions
of the Cable Act, including Cable Act franchise requirements.
In addition, they are not subject to the rate regulation
provisions of the Cable Act (but, interestingly, OVS systems
also may not be protected by Cable Act limitations on local
and state rate regulation of cable systems). They are not
entitled to the renewal protections of the Cable Act (because
they do not have to obtain a cable franchise under the Cable
Act). The consumer protection provisions of the Cable Act-
including the FCC's consumer protection standards - do not
apply to OVS systems. (OVS operators can be expected to
argue that local authority to establish customer service
standards for OVS has been preempted, but it is not at all clear
that this is true.)
The Role of Local Government in Regulating
Telephone Companies Providing Video Services
It is clear under the new Act that if a telephone company
chooses the "traditional" cable system option, it will be subject
to local franchising requirements and all the provisions of the
Cable Act. However, that doesn't mean that a telephone
company is free to provide video service under the other three
options without obtaining any authorizations from the local
municipality. For example, a telephone company might wish
to locate the facilities required to provide wireless cable service
on public property. If it does so, depending on state and local
law, a franchise or right-of-way use agreement might be
necessary. The same may be aue of entry under the "common
carrier" or "OVS" options. The municipal role in telephone
company provisions of cable-like video services is therefore
likely to be defined through a combination of FCC
rulemakings, the provisions of state law and municipal charter
and ordinance provisions.
Telephone-Cable Mergers
One key question from your constituents is likely to"be: will the
new Act actually result in head-co-head .video competition
between the telephone company and the cable company?
Unfortunately, the answer co that question is not clear. The
new Act allows cable companies and telephone companies to
acquire up to 10 percent interests in the operation of the other.
Further, the new Act allows cable companies and telephone
companies to merge or to engage in joint ventures in several
circumsJances.
A merger or joint venture can occur if the FCC decides that
the merger is appropriate in light of the economic condition of
the merging companies, or is justified in light of the
"convenience and needs of the community to be served."
However, the FCC can allow such a merger only if the affected
local government(s) approve.
In rural areas, a merger or joint venture is also permitted when
the merger is between a local telephone company and cable
company, where the cable system being acquired serves fewer
than 35,000 inhabitants and is not in an urbanized area. A
local relephone company is limited, however, to acquiring
cable systems that serve fewer than 10 percent of the
households in the service area of the telephone company.
There is a second separate exemption from telephone-cable
merger limitations for cable systems that (a) serve no more
than 17,000 subcribers; (b) are not owned by one of the 50
largest cable systems operators; and (c) are located outside of
the tOp 100 television markets.
In competitive .cable markets, a joint venture or merger is
permitted in some circumstances where there are at least twO
cable systems in the market and the cable system that is being
acquired by or acquiring the local telephone company is not
the largest cable company in the market.
In cases involving small telephone and cable systems, a merger
or joint venture is permitted between a cable company and
local telephone company where the telephone company has
less than $100 million in annual operating revenues and the
cable system serves no more than 20,000 subscribers, no more
than 12,000 of whom live in an urbanized area.
21
~.. .... .,-.... .. ." '." ..........~...."....................-...-;....:....;......W..;I..~..oI.4It_.H...I...........". ....~~~
~ ~ .: , .. . . ..' ' . . . '" ': ' , . . . . '.' ..' .' , ,
The Telecommunications Act of 1996: What It Means to Local Governments
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CHAPTER SIX
Changes to the Cable Act
The new Act will significantly reduce and in many cases
eliminate local and federal control over cable rates, especially
over "expanded basic" tier rates. Subscriber notice protections
are limited in some cases. Local control over technical
standards is narrowed. But overall, local franchising authority
over cable - including the franchise renewal process and local
authority to require cable operatOrs to provide significant
benefits to the community in the form of PEG access and
institutional networks - has not been affected.
The new Act makes several changes to the Cable Act. The
changes relate to a variety of issues - the definition of "cable
system," rate regulation, subscriber notice, system ownership,
technical standards, and franchise transfers. The only common
denominator in these various changes is that virtually all were
sought by the cable industry. It is important to remember,
however, that these changes do not alter a municipality's basic
authority over cable system operators under the cable franchise
process.
Key Provisions Experience No Change
Municipal authority to franchise cable systems is not changed.
Among other things, operators can still be required to meet a
municipality's cable-related needs and interests as a condition
of obtaining a franchise. A municipality can still require a
cable operator to set aside capacity for PEG use, to provide
equipment and facilities for PEG use, and to build an advanced
"institutional network" that links, for example, schools,
government and key local institutions. (Institutional networks
can be used for voice, video and data transmission under the
Cable Act.) A municipality can still establish minimum
facilities and equipment requirements for a cable system. The
renewal provisions of the Cable Act remain unchanged.
Several other provisions of the Cable Act, however, were
altered.
Revised Definition for "Cable System"
The definition of "cable system" was revised to include only
systems that cross public rights-of-way. Previously, systems that
did not cross public rights-of-way, but served multiple buildings
not under common ownership, control or management, were
deemed "cable systems" and required a franchise. As a result of
this change, systems that do not use rights-of-way will not be
subject to Cable Act franchises, even if the service they
provide is identical to the cable service traditionally provided
by cable operators. In many municipalities, this exclusion will
serve only to exempt apartment or condominium buildings
linked by cable laid across private property. In some
municipalities - particularly cities with large private
developments whose streets are not public rights-of-way - the
change may be more significant.
Cable System Ownership
The new Act removes the longstanding Cable Act restriction
on local telephone company ownership of cable systems. (This
issue is discussed separately in Chapter Five.) The new Act
also allows local broadcast stations and cable systems, as well as
local newspapers and cable systems, to be commonly owned in
most instances.
23
The Telecommunications Act of 1996: What It Means to Local Governments
Notice to Subscribers of Rate and Service
Changes
FCC regulations, and many local franchises, now require an
operator to give advance written notice to subscribers of
proposed changes in cable service packages and rates. Many
local franchises, for example, provide that prior notice -
usually 30 days - must be given of any proposed change in
rates or services. The new Act amends the consumer
protection provisions of the Cable Act to permit a cable
operator to provide notice of service and rate changes to
subscribers "using any reasonable written means at its sole
discretion." The amendments further provide that a cable
operator may not be required to provide prior notice of any rate
change that is the result of a regulatory fee, franchise fee, or any
other fee, tax or assessment of any kind imposed by a federal,
state or local government.
Cable operators are likely to argue that these provisions
essentially leave the substance and timing of notices to
subscribers entirely to the operator's "sole discretion." It is also
arguable, however, that the law is intended, at most, to give
operators latitude in deciding the best means to give \\oTitten
notice (whether to use a bill stuffer or separate mailing, for
example), while leaving it up to local franchising authorities or
to states to define what is "reasonable" written notice. FCC
rule makings are likely to resolve the answers to these questions.
For now, local governments should not assume that subscriber
notice requirements have been entirely preempted-
particularly notice provisions that are not strictly related to
changes in programming services or rates.
Changes to Cable Rate Regulation
It has been widely reported that the new Act eliminates cable
. rate regulation. That is not true. Depending on the outcome
of FCC rulemakings, however, many communities could see
rates deregulated. even where subscribers have no genuine
competitive alternative to the cable operator.
When Can Rates Be Regulated?
Under the new law, as under the old law, rates cannot be
regulated in communities where the operator faces "effective
competition." The new Act, however, redefines "effective
competition" to include any community where a local
telephone company or its affiliate, or any other multichannel
video programming distributor using the local telephone
company's facilities, offers video programming services
"comparable" to that provided by an unaffiliated cable operator
in the area. The effect of this provision depends on what is
meant by "comparable" video programming "offered" in the
franchise area. If, for example, the phrase "offered" in the
franchise area is triggered by a telephone company's offering of
service to a single apartment building anywhere in the
franchise area, the sweep could be quite broad. In many large
cities; local phone companies may already be offering, or soon
will offer, cable service in standalone apartment buildings, and
nowhere else. An FCC rulemaking will address this issue, and
the outcome will decide whether the Act will deregulate rates
in many communities.
"Expanded Basic" Tier Rates Deregulated in 1999
Effective in March 1999, the new Act will deregulate what the
Act refers to as "cable programming service" - commonly
referred to by operators as the "super basic" or "expanded basic"
tier. This acro~;the-board deregulation of expanded basic in
1999 will occUr regardless whether effective competition exists
or not.
Additional Rate Regulation Relief for "Small Cable Operators"
The Act could be read to deregulate the rates of "small cable
operators" immediately. This deregulation would apply in any
franchise area where the operator serves fewer than 50,000
subscribers, and the operator qualifies as a "small cable
operator." A "small cable operator" is defined as an operator
that, individually and through its affiliates, serves fewer than
1 percent of all cable subscribers nationwide (that's about
600,000 subscribers) and whose gross annual revenues are
$250,000,000 or less.
Many smaller communities may see their expanded basic rates
deregulated immediately by this provision. Rates in small
communities that are served by large national cable operators,
however, will not be deregulated under this "small cable
operator" exception.
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Chapter Six
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New Burdens Imposed on Local Governments
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Under existing FCC rules, any subscriber can file a complaint
with the FCC regarding expanded basic tier rates. Once filed
with the FCC, that complaint must be resolved by the FCC in
accordance with its rules. Under the new Act, only the local
government can file complaints about expanded basic rates
with the FCC. Moreover, the local government can file such a
complaint only if it receives complaints about those rates from
local subscribers within 90 days of the date a new rate for
expanded basic goes into effect. This means that local
governments must devise a means of recording rate complaints
they receive from subscribers. This is particularly important
because the FCC can only order refunds for overcharges back
to the date the local government first receives a complaint
about new rates from a subscriber.
a
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Rate Regulation of Basic Service and Equipment
In municipalities where the operator is not subject to "effective
competition," the operator's rates for basic service and
equipment will remain subject to regulation. In most areas,
this means local governments can continue to regulate rates for
basic service and equipment. With respect to equipment rates,
however, the Act allows operators to aggregate equipment costs
for broad categories of equipment - converters, for example
- and to charge the same rate for all converters no matter how
shopworn or functional. This effectively allows operators to
require subscribers with old, cheap converters in small markets
served by old systems to subsidize the rates for more expensive,
advanced converters paid by subscribers in some large markets
with more modern systems. This subsidization will also make
local government's job of effectively regulating basic service
and equipment rates more complicated and difficult.
Umits on Local Authority over Cable System
Technology and Subscriber Equipment
The 1984 Cable Act specifically allows municipalities to
include facilities and equipment requirements in franchise
proposals and renewals, and to enforce such requirements in a
franchise. The new Act leaves these provisions unchanged,
but adds new language stating that a municipality may not
prohibit, condition or restrict a cable system's use of any type of
subscriber equipment or any transmission technology.
The meaning of this new language is unclear. Read in context,
the language appears to be intended to prevent municipalities
from requiring cable operators to use a specific kind of
converter or signal security technology.
The cable industry, however, will no doubt argue that the new
language is broader in scope. Some operators might even go so
far as to argue that it prevents municipalities from bargaining
for increased system channel or fiber capacity at franchise
renewaL Such a reading seems unreasonable in light of the fact
that the new Act leaves unchanged municipalities' basic
authority over cable system facilities and equipment. But you
should expect your cable operator to claim aggressively that
this change removes your authority over such matters as system
capacity and installation of fiberoptic capacity. And you
should be prepared to defend vigorously against the cable
operator's argument.
Elimination of Anti-Trafficking Umitation on
Cable System Transfers
The 1992 Cable Act generally prohibited cable operators from
selling or transferring their systems within three years of system
acquisition or construction, subject to certain exceptions. The
new Act eliminates this restriction, allowing cable operators to
sell or transfer their systems as often as they like. The new Act
does not, however, change the requirement of the 1992 Cable
Act that municipalities must act on cable franchise tranSfer
requests within 120 days.
Umitation of the Unifonn Rate Requirement
The 1992 Cable Act generally required a cable operator to
charge uniform rates throughout the geographic area served by
its cable system. The new Act loosens this requirement in that
the uniform rate requirement does not apply to any cable
operator subject to effective competition. It also does not apply
to any programming service offered on a per-channel or per-
program basis. This means that an operator's rates for premium
programming like HBO and for pay-per-view programming
need not be uniform. In addition, bulk discounts that an
operatOr provides to multiple dwelling units (such as apartment
buildings and condominiums) are not subject to the uniform
rate requirement. This is true even if the operator is not
subject to effective competition and thus otherwise subject to
rate regulation.
2S
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'" . '. ,.: ...., ';.,:',~' .', '. ," '!'.- .r;,
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The Telecommunications Act of 1996: What It Means to Local Governments
FCC to Set New Rules for Cable Equipment
Compatibility
Public Access Channel Programming
The new Act largely rewrites the provisions of the 1992 Cable
Act concerning cable equipment compatibility. It requires the
FCC to adopt rules that set only minimal standards at most.
This may mean that subscribers will continue to experience
difficulty in obtaining televisions and VCRs that are fully
compatible with the cable system.
The new Act gives a cable operacor the power to refuse to carry
any programming (or part of a program) on a public access
channel that contains obscenity, indecency or nudity. This
restriction - particularly the undefined scope of the "nudity"
prohibition - could lead to litigation.
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CHAPTER SEVEN
Impact of the Act on Local Zoning Power
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The Act generally preserves local zoning authority over
wireless telecommunications facilities (such as cellular rowers)
as long as zoning requirements are nondiscriminatory, do not
have the effect of prohibiting service, and are not based on the
health effects of radio frequency emissions. Zoning decisions
must, however, be made within a reasonable time, be based on
evidence, and be in writing. By August 1996, the FCC will
complete a proceeding that could affect local zoning authority
over rooftop television antennas and satellite dishes. Interested
communities should participate in that FCC proceeding.
In the past several years, a host of new wireless
communications technologies have been developed.
Telecommunications services include paging service, cellular
telephone service, and personal communications services
(UpCS"). Television service delivery includes direct broadcast
satellite ("OBS").
What all of these new wireless technologies have in common is
that, to varying degrees, they require either the construction of
transmitting equipment (placed on towers) or receiving
equipment (such as satellite dishes), or both. As a result, if left
unchecked, the growth of these services could result in the
sprouting of new radio towers and receivers all over a
municipality's landscape - far more than exist under older
technologies such as radio telephone service and television
broadcast service. Most of these new facilities will be sited in
developed areas - such as cities and suburbs - where the
potential residential and business customers of these new
services are located.
Local governments have long exercised zoning authority over
development. to ensure that the appearance and integrity of
neighborhoods are not marred by the cluttering of unsightly
facilities or the intrusion of commercial facilities into
residential areas. Like warehouses and smokestacks, placement
and location of antenna towers and satellite dishes present
zoning issues.
The Act contains language specifically protecting local zoning.
authority to a significant degree. However, at the same time,
the Act does place some new federal requirements on local
zoning authority over wireless telecommunications facilities,
and it leaves the door open for the FCC to consider adopting
rules that could limit local zoning authority over DBS receiving
dishes and television antennas.
Local Zoning Authority over Wireless
Telecommunications Facilities
The Act addresses the issue of local zoning authority over
wireless telecommunications facilities in three steps. It (1)
establishes a general principle that local zoning authority is
preserved, subject to certain conditions; (2) lists the conditions
that local zoning requirements must satisfy; and (3) identifies
which disputes will be handled by the courts and which will be
handled by the FCC.
27
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The Telecommunications Act of 1996: What It Means to Local Governments
General Principle: Local Zoning Authority Preserved
The Act makes clear that as long as local zoning requirements
satisfY certain conditions, nothing in the entire
Communications Act of 1934 will limit or affect zoning
authority of local governments over the placement,
construction, and modification of wireless telecommunications
facilities. This principle is important because over the years,
the FCC has attempted to exercise its general authority over
wireless transmissions under the Communications Act of 1934
to limit or preempt local zoning authority. Until now, the _
1934 Act contained no explicit limit on the FCC's authority
over zoning. With this new principle, local governments for
the first time will have a statutoty basis in the Act to defend
themselves against unwarranted federal intrusion into local
zoning.
Conditions to local Zoning Requirements
In order to take advantage of the Act's general principle of
preserving local zoning authority, local government zoning
decisions about wireless telecommunications facilities must
satisfY five conditions. Those conditions are:
1. Local zoning requirements may not unreasonably
discriminate among wireless telectJmmunications providers
that compete against one another.
The legislative history makes clear that local governments
do not necessarily have to treat competitive providers
exactly the same if their proposed facilities present
different zoning concerns. Congress intended to give local
governments some flexibility in this area. It recognized,
for example, that a proposed 50-foot tower in a residential
district presents different concerns than a 50-foot tower in
a commercial district, even if the two towers are going to
offer services that compete with one another.
2. Local zoning requirements may not prohibit or have the
effect of prohibiting the provision of wireless
telecommunications service.
This is intended to prevent local governments from
imposing outright bans on wireless telecommunications
facilities. It probably also prohibits moratoriums on
accepting applications, at least any moratorium that is of
indefinite length. At the same time, local governments
should have the ability to limit the number and placement
of facilities as long as those limits do not have the effect of
precluding a wireless telecommunications provider's ability
to offer service.
3. A local government must act on a request for permission
to place or construct wireless telecommunications facilities
within a reasonable period of time.
The time taken to act on an application will be
considered reasonable as long as it is no longer than the
time the local government usually takes to act on the
other requests (say, for zoning variances) of comparable
magnitude that have nothing to do with
telecommunications facilities. And Congress emphasized
that the Act does not require local governments to give
preferential treatment to zoning requests involving
telecommunications facilities - such requests can wait
their turn. As long as the request is not moved down the
list, it does not have to be moved up the list.
4. Any city councilor zoning board decision denying a
request for permission to install or construct wireless
telecommunications facilities must be in writing and must be
based on evidence in a written record before the councilor
board.
}'his requirement may necessitate a considerable change in
practice for' some city councils and zoning boards. It
means that proceedings on a zoning application will need
to be reduced to writing. This can be done by having the
proceedings transcribed and by requiring the applicant, the
city staff and any interested members of the public to
reduce their comments and arguments intO written
submissions to the councilor board. This requirement also
means that city staff will need to make sure that any facts
or arguments on which the council or board may rely on in
denying a request are in fact included in the transcribed
hearing or written filings submitted to the council or board
before its decision is made. That decision also must be in
writing and contain reasons that are consistent with the
Act's requirements. Municipalities should carefully
consult with their city attorneys to implement this
requirement.
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Chapter Seven
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5. As long as wireless telecommunications facilities meet
standards to be set by the FCC, a local government may not
base any decision denying a request to construct such
facilities on the ground that radio frequency emissions from
the facilities will be harmful to the environment or health of
residents.
The Act gives the FCC, not local governments, the sole
authority to determine what standards wireless facilities
must meet to ensure that their radio frequency emissions
do not harm humans or the environment. While local
'Sovernments can require the facilities to comply with FCC
emission standards, local governments may not adopt their
own standards. This means that, as long as the facilities
meet FCC emission standards, concerns about the effects
of emissions from radio towers on the health of nearby
residents is not a permissible reason for making zoning
decisions about the placement of wireless
telecommunications facilities.
Who Resolves Disputes Between Municipalities and Wireless
Telecommunications Providers?
In a major victory for municipalities, the Act requires that a
wireless telecommunications provider claiming that a city has
violated any of four out of five conditions listed above must
seek relief in a state or federal court, not at the FCC. The
disappointed applicant may go to the FCC only if it claims that
the municipality improperly based its decision on the harmful
effects of radio frequency emissions from the proposed facilities.
The FCC is also prevented from preempting local zoning
requirements except for those relating to radio frequency
emissions. Consistent with this restriction, the Act also
requires the FCC to discontinue its pending rulemaking
proceeding concerning preemption of local zoning
requirements for cellular towers.
Zoning Issues Relating to DBS and Television
Broadcast Facilities
The Act contains no comparable local zoning provisions
dealing with the other type of communications facilities that
might appear on your City's landscape (e.g., television broadcast
antennas and satellite television dishes). This will probably
seem odd to most cities, since television antennas and dishes
may present precisely the same types of zoning concerns as
wireless telecommunications facilities - they can affect
neighborhood appearance and integrity. After all, zoning
requirements tend to be directed at the physical size and
appearance of facilities, not the particular services they are used
to provide.
The Act does, however, contain two provisions that both the
television broadcast and DBS industries are likely to try to use
t'o restrict municipal zoning authority over television antennas
and dishes.
The first provision gives the FCC exclusive jurisdiction over
"direct-to-home satellite services" - in other words, DBS
service. This essentially gives the FCC the same broad
authority over DBS service that it has long had over television
broadcast service. This may strengthen the FCC's hand in
adopting rules concerning limitations on local zoning authority
over satellite dishes.
The second provision may be a bit more of an explicit threat to
local governmenrs. This provision requires the FCC - by
August 1996 - to adopt rules that prohibit "restrictions" that
impair a viewer's ability to receive television programming from
over-the-air local television broadcast stations, DBS services, or
"multichannel multipOint distribution services" ("MMDS").
The Act does not say what types of "restrictions" the FCC is
supposed to prohibit. You should assume, however, that the
broadcast and DBS industries will argue to the FCC that local
zoning requirements concerning rooftop antennas and
backyard satellite dishes are "restrictions" that the FCC should
limit or prohibit.
29
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The Telecommunications Act of 1996: What It Means to Local Governments
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CHAPTER EIGHT
Effects on Local Taxation
Cities may no longer impose any local tax or fee on the
programming services of direct broadcast satel!ite providers.
The state, however, may impose such a tax and remit some or
all of it co municipalities.
The 1996 Act and the legislative history explicitly recognize
the authority of local governments to receive compensation for
telecommunications providers' use of local rights-of-way.
UnfortUnately, Congress was not so understanding of
traditional local taxation authority unrelated to rights-of-way
use. Instead, at the urging of providers of DES services,
Congress preempted local taxation of DBS services. And in
House debates on the floor, at [east two members of Congress
threatened to extend this principle to exempt other kinds of
communications services from local ta"(ation in the future.
Before the 1996 Act became law, federal law did not address
the local taxation of DBS services at alL The 1984 Cable Act
does not reach such services because they are not delivered by
means of a cable system. Consequently, although federal law
did not give cities any authority to impose fees or taxes on DES
providers, it also did not in any way limit a city's authority to
impose such taxes under state and local law. In other words, if
a city had the authOrity under state law to impose a tax on DBS
service, it could. The 1996 Act, however, explicitly preempts
local taxation of DES services.
The Act and the Legislative History ~ntain the Following
Provisions:
· No local government may impose any kind of tax or fee on
the provision of DES services. The preemption is so broad
that it could be read to preempt all local taxes on DBS
services, even generally applicable taxes such as a sales tax
to the extent they apply to DES services.
· Unlike local governments, the state may tax DES services.
In addition, the Act specifically allows the state to collect
such a tax and then distribute it to local governments.
· Only ta"(es on DBS service itself are preempted. Cities ma
still tax the sale of DBS equipment, and they may still
collect real estate ta"(es on property owned or leased by a
DBS provider.
The wireless cable industry hopes to broaden the exemption
beyond DBS. During the floor debate in the House, Reps. Hyde
of Illinois and Buley of Virginia stated that they believed
wireless cable raised the same factual situation as DES, and
Hyde indicated that he will probably hold hearings on the issue.
Since the Act specifically allows the state to tax DBS service
and to remit it to localities, you will want to determine if
DBS is currently taxed in your state, either specifically or
through a more generally applicable tax. If not,
municipalities in your state might want to develop a state
initiative to impose such a tax.
In assessing the effects of the 1996 Act on their taxing
authority, cities also need to consider the consequences of
other state legislation in this area as welL Many states are
adopting their own telecommunications reform legislation,
often altering local taxing powers in the process. For example,
localities in Michigan have the authority to collect taxes from
public utilities, and telecommunications providers have always
been treated as public utilities under Michigan law. The 1995
Michigan Telecommunications Act, however, states that
telecommunications providers are not public utilities, thus
exposing Michigan cities to the risk of substantial revenue loss.
31
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The Telecommunications Act of 1996: What It Means to Local Governments
What This Means for Cities
Cities that currently tax DBS services under cheir own taxing
powers will lose revenues. Cities will face additional revenue
losses if wireless cable services are brought under the
preemption. In addition, cities must be prepared to fend off
long-term efforts by industry to bring caxation of all kinds of
ocher telecommunications services - even wire line services -
wirhin the scope of the new Act. Cicies will also need co be
prepared to face a general threat that the industry will seek to
limit their ability to tax telecommunications services at the
srate level as welL
. Do you currently tax DES services in any way?
you have a meanS of replacing that revenue?
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32
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CONCLUSION
In the years ahead, you will encounter many new challenges
and oppornmities as a result of the new Act. The meaning of
many of the provisions we have discussed will be refined and
clarified through FCC decisions, coUrt decisions, state
legislation and - yes - through municipal ordinances as well.
For cities to protect their interests, they will have to be active
participants in all of these forums.
To take full advantage of the opportUnities the new Act
presents, as well as to resolve many of the problems it creates,
you also will Want to consult with your municipal attorney and
perhaps specialists in the field as wetl. As you wind your way
through this legislative thicket, you will need to refocus your
thinking in three critical areas:
· You will need to move away from thinking of the world as
being composed of a single local telephone company and a
single cable operator, and towards thinking of a world
composed of multiple telecommunications providers, each
competing with one another, with some providing voice
services, some providing data services, some providing
video services, and some providing all three.
· You will need to think of your local government as the
landlord of the local public streets and rights-of-way, and
of the various private companies that place facilities on
those rights-of-way as your tenants. You are entitled to fair
compensation from those private companies, but you
should also strive to reorganize your ordinances and
franchises to treat those rights-of-way users in a
coordinated, nondiscriminatory way.
· Your local government is a large user of
telecommunications services. The new world will provide
you with many new alternatives to the traditional
procurement process CO obtain the telecommunications
services your local government needs. You will want to
leverage your starus as a large user and as landlo~d of the
rights-of-way to ma.'Ximize the telecommunications services
you receive and minimize the costs.
If you proceed carefully and wisely, the opportunities presented
by the new Act will outweigh the problems. The new world
offers a chance for your local government to be a significant
interchange on the information superhighway. To realize that
opportunity, you will need to be proactive at the federal and
state level to protect your interests.
33
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The Telecommunications Act of 1996: What It Means to Local Governments
34
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GLOSSARY OF
TELECOMMUNICATIONS TERMS
A
Analog telecommunications - Moving information from place
to place in the form of continuous electrical signals. Analog is
the form of information that comes out of an ordinary voice
telephone, or from a modem into a telephone line.
B
Broadcast - To transmit information over the airwaves to two
or more receiving devices simultaneously. Information can be
transmitted over local television or radio stations, satellite
systems or wireless data communications networks.
c
Cable programming service - A tier of cable service containing
multiple channels of programming commonly referred to by
operators as the "super basic" or "expanded basic" tier.
Cable system - A wired distribution system that crosses public
rights-of-ways and is used to deliver multiple channels of video
programming to multiple subscribers in a community.
Cellular service - A telecommunications service that permits
customers to use wireless, mobile telephones to connect, via
low-power radio transmitter sites called cell sites, either to the
public switched network or to other mobile cellular phones.
Coaxial cable - A high capacity cable, typically copper,
commonly used in cable television systems. It has more
bandwidth than twisted pair, but less bandwidth than fiber-
optic cable. (See Twisted pair, Fiber optics.)
Commercial leased access - Channels set aside on a cable
system for commercial use by programmers unaffiliated with the
cable operator and whom the operator does not voluntarily
choose to carry.
Common carrier - An entity licensed by the FCC or a state
agency to supply local and/or long-distance
telecommunications services to the general public at
established and stated prices.
Competitive Access Provider (CAP) - Provides local
exchange "bypass" service to businesses with large long-
distance traffic. A CAP connects these businesses directly with
their long distance carrier of choice, "bypassing" the need for
the local telephone company to provide the connection.
Customer premises equipment - The equipment employed on
the premises ,of a person (other than a carrier) to originate,
route, or terminate telecommunications. A telephone and a
modem are examples of customer premises equipment.
D
Digital telecommunications - An information transmission,
storage and processing method that uses electronic or optical
pulses, also called bits. Digital switching technology transmits
and processes calls faster and better than analog transmission,
its predecessor. This improves both the capacity and the
efficiency of the network.
Direct Broadcast Satellite (DBS)- A radio communication
service in which programming signals transmitted or
retransmitted by satellites in space are intended for direct
reception by the general public (both individual or community
reception).
35
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The Telecommunications Act of 1996: What It Means to Local Governments
E
Effective competition - Any community where either: (1) a
local telephone company or its affiliate, or any other
multichannel video programming distributor using the local
telephone company's facilities offers video programming
services "comparable" to that provided by an unaffiliated cable
operacor in the area; (2) less than 30 percent of the homes
subscribe to cable services; (3) multichannel video distributors,
other than the largest cable opera cor, offer cable services co at
leas~ 50 percent of the homes and at least 15 percent of the
homes subscribe to such other, competitive multichannel video
distributors; or (4) a municipally owned cable system offers
cable service to at least 50 percent of the households in the
area. Where "effective competition" exists, cable rates are
immune from rate regulation.
Exchange - The local area served by a central office or
switching center. An exchange can be identified by the area
code and first three digits of a phone number. Exchanges are
grouped to form a Local Access and Transport Area. (See
LATA.)
F
Federal Communications Commission (FCC) - The FCC has
the power to regulate interstate and foreign communications by
radio, television, wire, satellite and cable. No more than three
of the five members can be from the same political party. The
president nominates the commissioners, and the Senate
confirms them for five-year terms.
Fiber optics - A form of communications transmission by glass
wire strands that uses light to send data, high-quality video and
sound. Fiber optics technology has a much greater capacity co
carry information, consumes less electricity and is less sensitive
, to electromagnetic glitches than traditional forms of
communications shipped over twisted pair or coaxial cable.
(See Coaxial cable, Twisted pair.)
H
High-Definition Television (HDTV) - Any of a variety of
video formats offering higher resolution than current television
broadcast standards.
Integrated Service Digital Network (ISDN) - A digital
s\~itched network that provides very fast, simultaneous
transmission of voice, data and images over a single telephone
line. It enables the carriage of hundreds of communications at
once and multipage faxes in seconds instead of minutes, as well
as medium-quality video images.
Institutional Network (I-Nee) - A communication network
which is constructed or operated by the cable operator and
which is dedicated co use exclusively by the local government,
schools, or other local institutions, as opposed to residential
subscribers.
Interexchange Carrier (!XC) - A telephone company
authorized to provide long-distance communications, but not
local telephone service. Companies like AT&T, US Sprint and
MCI are IXes. (See LEe.)
Internet - An unregulated, global confederation of computer
networks linked through regional, private business and
educational networks. The Internet began in 1969 as an
acrempt by the Defense Department to link universities to
Pentagon researchers, while also serving the national security
purpose of spreading out crucial computing tasks to a wide
geographic area. The Internet provides file transfer, remote
login, electron'ic mail, news and other services.
L
LAl'J' (Local Area Network) - A network of computers and
peripheral equipment that interact mainly with one another
within a relatively small area.
LATA (Local Area and Transport Area) - Any of 161 local
telephone serving areas in the United States created by the
MF] in 1984. LATAs were established co create boundaries that
distinguish between local and long-distance service. Calls'
between LAT.As are carried by long-distance companies, while
calls within a LATA are handled by local phone companies.
LATAs are further divided into areas called exchanges. (See
Exchange.)
LEC (Local Exchange Carrier) - Any person that is engaged
in the provision of telephone exchange service or exchange
access. Such term does not include a person insofar as such
person is engaged in the provision of a commercial mobile
service, except to the extent that the FCC finds that such
service should be included in the definition of such term.
36
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Glossary of Telecommunication Terms
M
;;
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,Modified Final Judgement (~fF]) - The consent decree
entered into August 24,1982 by AT&T and the Justice
Department that broke up the monopoly of local and long-
distance telephone service and equipment manufacturing
controlled by AT&T.
Multichannel Multipoint Distribution Service (MMDS) - A
service involving the transmission of multiple channels of
television programming through earth-bound (rather than
satellite) transmitters. To receive MMDS, a subscriber must
have a special antenna installed. Also know as "wireless cable."
N
National Education Technology Funding Corporation - The
Telecommunications Act of 1996 created this corporation to
receive funds from any source ro stimulate investment in
"education technology infrastructure."
Network - A system of terminals, switches and connections
(lines and radio channels) that communicates information
among users. (See Public switched network.)
o
Open Video System (OVS) - A local exchange carrier may
provide cable service to its cable service subscribers in its
telephone service area through an open video system that
complies wim the Act. The conditions under which a LEC
may provide OVS will be determined by regulatiOns mat the
FCC will prescribe consistent with the public interest,
convenience, and necessity. Unlike a cable operator, the
operation of an OVS must make available two-thirds of its
capacity for use by others through reasonable, non-
discriminarory tariffs.
p
Pay television - A system of distributing television
programming, either over-me-air or by cable, for which the
subscriber pays a fee. The signals for such programming may be
scrambled to keep non-subscribers from receiving service. Also
know as "premium television."
Public, Educational and Government (PEG) access-
Channel capacity and facilities set aside by a cable operator for
public. educational or governmental use. The amount of PEG
access is determined by local governments in their franchise
agreements with cable operators.
Personal Communications Services (PCS) -Digital wireless
telephone technology such as portable phones, pagers, faxes
and computers. Such mobile technology promises to allow each
consumer to use the same telephone number wherever he or
she goes. Also known as Personal Communications Network
(PCN).
Premium channels - Optional per-channel, pay-television
services, usually first-run movies and special events, that are
offered by a cable television system for a seperate monthly fee.
Public access - A very broad and important term covering the
public's right to participate in the marketplace of ideas as
provided by the Constitution. Public access means providing
ramps for wheel-chairs in public places. It means the Freedom
of Information Act to broaden public access to government
decision-making. It means public access ro cable TV. The
principle of public access is important in addressing areas of
public life traditionally underserved by the commercial market,
such as education, health care and governance.
R
Regional Bell Operating Company (RBOC) - The breakup of
AT&T created s~ven regional Bell holding companies, known
as Baby Bells: Ameritech, Bell Atlantic, BellSouth, NYNEX,
Pacific Telesis, Southwestern Bell and US West.
s
Small cable operator. A cable operator that, individually and
through its affiliares, serves fewer than 1 percent of all cable
subscribers nationwide and whose gross annual revenues are
$250,000,000 or less.
T
Telecommunications - The transmission, between or among
points specified by the user, of information of the user's
choosing, wimout change in the form or content of the
information as sent and received.
Telecommunications Development Fund - The
Telecommunications Act of 1996 established this federal fund
ro stimulate small business entry into telecommunications.
Telecommunications infrastructure - The cables, switches,
radio rowers, and other facilities and equipment that are
required to make telecommunications work. Cables and wires
that connect customers to switching centers are called outside
37
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The Telecommunications Act of 1996: What It Means to Local Governments
plant. Equipment under a roof is inside plant.
v
Telecommunications service - The offering of
telecommunications for a fee directly to the public, or to such
classes of users as co be effectively available directly co the
public, regardless of the facilities used.
Tier - Different packages of multiple programming channels
available through cable television systems for different prices.
"Basic" service, received for a minimum fee, includes local
broadcast television stations and PEG channels. "Expanded
basic" service, the next level of service after basic, includes the
majority of the popular satellite-delivered, advertiser-supported
programming services such as CNN and ESPN. A "fat basic"
tier is a basic service tier that includes channels usually found
on the expanded basic tier.
Trunk line - The main distribution line of a cable television
system, which feeds signals from the headend co feeder lines.
Subscriber drop cables are connected to feeder lines.
Twisted pair cable - A wire consisting of insulated copper wire
organized in distinct pairs that are twisted around each other in
order to identify each separate circuit. Individual pairs of wire
are the primary path between a cuscomer's premises and the
telephone company's local central office. This type of cable has
been standard in the telephone industry for decades. However,
it is being gradually replaced by fiber optic cable, which has a
vastly greater capacity to carry information. (See C03.xial cable,
Fiber optics.)
u
Universal service - An evolving level of telecommunications
services that the FCC shall establish periodically under the
Act, taking into account advances in telecommunications and
information technologies and services. In reviewing the
definition, the FCC shall consider the extent to which such
telecommunications services: A) are essential to education,
public health, or public safety; B) have, through the operation
of market choices by customers, been subscribed to by a
substantial majority of residential customers; C) are being
deployed in the public telecommunications networks by
telecommunications carriers; and D) are consistent with the
public interest, convenience, and necessity.
V-chip - Technology built into television sets that will allow
parental choice in television programming. Specifically, an
apparatus designed to block display of all programs with a
common rating, such as video programming containing violent
or sexual content.
Video programmer - Any provider of video programs, such as
cable operators, television networks, local broadcasters and
satellite program distributors. Telephone companies would be
allowed to own and offer video programs under the new Act.
w
Wireless access - Anyone of a number of methods to replace
all or part of the wired connections in a communities nerwork,
to residential and business subscribers. Examples include DBS,
MMDS, analog and digital cellular, and personal
communication services.
SOURCES: Federal Communications Commission,
Congressional Quarterly, GTE Telephone
Operations, Jones Cable Television and
Information Infrastructure Dictionary, and the
Telecommunications Act of 1996.
38
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About The National League of Cities
The Nacional League of Cities was established in 1924 by and for reform-minded state municipal leagues. It
now represents forty-nine leagues and more than 1,400 cities directly, and through the membership of the state
municipal leagues, some 17,000 cities indirectly.
NLC serves as an advocate for its members in Washington in the legislative, administrative, and judicial
processes that affect them; develops and pursues a national municipal policy that meets the present and future
needs of our nation's cities and the people who live inchem; offers training, technical assistance, and
information to municipal officials to help them improve the quality of local government in our urban nation;
and undertakes research and analysis on topics and issues of importance to the nation's cities and towns.
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COMMISSION AGENDA
ITEM K
SUPPLEMENT
REGULAR X
CONSENT
INFORMATIONAL
September 9. 1996
Meeting
DEP~
Authonzation
PURPOSE: The purpose of this Board item is to update the Commission on the
recommendations of the Board of Adjustment taken at their meeting of
September 5, 1996 as it relates to the requests of: 1) Florida Power Corporation,
and 2) the City of Winter Springs to construct telecommunications towers in
excess of established height restrictions.
FINDINGS:
1) Florida Power Corporation request - Four (4) citizens spoke.
a) William Fernandez represented the Ranchlands Homeowners' Association
and stated that the Association is maintaining a neutral position on this
Issue.
b) Thorp Earley (Seville Chase Subdivision) opposed the location of the
monopole because it would be directly across from the secondary entrance
to the subdivision. Mr. Earley's suggestion was that it be moved, north
and eastward and be located on city owned property.
c) R.J. Risser wanted more information on what would be there.
d) Harold Scott was seeking additional information.
Primeco, the company that would actually utilize the space on the towers, visited
the city owned property and have identified an alternate location on this property.
This location is to the north of the power easement and east of the ponds, and is
approximately two hundred fifty (250) feet northeast of the proposed Florida
Power location.
September 9, 1996
Agenda Item K
(Supplement)
Page 2
The original motion was to recommend approval as presented. Smith stated that
he would feel more comfortable if the site were located on the City property to
allow the City to maintain and control (of the tower) and stated that he respects
Florida Power's position as they have to be somewhat generous in allowing some
flexibility in that regard.
Amended motion was to allow at least the two alternative sites to be considered
(on Florida Power and City of Winter Springs property) to be determined and let
the City Commission make the final determination based upon recommendation by
City Staff All voted aye. (Note: This motion is to allow a monopole to be
constructed to a height of one hundred twenty (120) feet).
2) City of Winter Springs request - Bob Reeve, General Manager for the Winter
Springs Golf Club, had concern over the height of the tower, however, they would
like to cooperate with the City if that is the best location.
Mr. Ariele, Primeco, stated to clarify that the application at this time is to include a
one hundred forty (140) foot pole in this location.....to accommodate other users.
LeBlanc stated that at the present time the City is (only) considering 120', the
Board could make in their recommendation that the pole be allowed to (be) no
more than a maximum of 140'
Motion was to recommend approval to the City Commission to the request for the
monopole up to a maximum of 140'. All voted aye
(Note: The City was unaware of the request for one hundred forty (140) feet
in height for the monopole and this height, or the potential for a third party user
was not discussed in the lease negotiations.)
September 9, 1996
Agenda Item K
Supplement
Page 3
RECOMMENDA TION:
1) Florida Power Corporation request - The recommendation is that the
Commission approve that a tower be constructed to a height of one hundred
twenty (120) feet on city owned property.
2) City of Winter Springs request - The recommendation is that the Commission
approve that the tower be constructed to a height of one hundred twenty (120)
feet, and that the additional twenty (20) feet be authorized (only) after successful
lease negotiation by the City Manager.
ATTACHMENTS:
Unofficial Minutes of the September 5, 1996 Board of Adjustment Meeting
Location map depicting the proposed Florida Power Corporation location and
the City of Winter Springs location.
COMMISSION ACTION:
MINUTES
BOARD OF ADJUSTMENT
SEPTEMBER 5, ]996
The Board of Adjustment Meeting of September 5, ] 996 was called to order by Vice-Chairman AI
Becker at 7:00 p.m.
ROLL CALL:
Elizabeth Harrow, Vice-Chairman, present
Thomas Wixted, present
Al Becker, present
Frank Adams, absent
Greg Smith, Chairman, present
CITY STAFF:
D. LeBlanc, Land Management Specialist
Approval of Minutes of June 6. ]996:
Vice-Chairman Becker asked for a motion to approve the minutes of June 6, ] 996.
Motion was made by Smith to approve the minutes of June 6, 1996. Seconded by Harrow.
Vote: All aye.
Election of Chairman:
Becker nominated Greg Smith for Chairman. Seconded by Harrow. Motion was made by Wixted
to close nominations. Seconded by Becker. Vote: All aye. New Chairman Greg Smith.
Election of Vice-Chairman:
Becker nominated Elizabeth Harrow for Vice-Chairman. Seconded by Smith. Motion was made
by Wixted to close nominations. Seconded by Smith. Vote: All aye. New Vice-Chairman
Elizabeth Harrow.
Request of Mr. & Mrs. Jolm Drehofffor Variances to Sections 6-2]9(a) and 6-2]9(c) of the Code
of Ordinances to allow a swimming pool (water's edge) to be closer than ten (10) feet from the rear
property line, and the screen enclosure to be closer than seven (7) feet from the rear property line.
The property is located in The Reserve at Tuscawilla, Phase I, Lot 23, Plat Book 48, Pages 3] thru
40 (105 Atrium Court). The subiect property is zoned Planned Unit Development (PUD):
Donald LeBlanc, Land Management Specialist, gave his presentation. LeBlanc stated that there are
no property owners to the rear of this property, the property to the rear is retention/detention and a
conservation easement. The screen at one point will be on the lot line and the water's edge will be
as close as 8 feet, 6 inches. Discussion.
Smith asked ifthere is anyone present to speak for or against the request. There was no one present
who spoke for or against the request.
Motion was made by Becker to approve the request of Mr. & Mrs. Drehoff for val'iances to
Sections 6-219 (a) and (c). Seconded by Wixted. Vote: All aye.
BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 5. 1996
PAGE 2
Request of Florida Power Corporation for a Variance to Section 20-164 of the Code of Ordinances
which will allow a concrete, telecommunication monopole to be built in excess of thirty five (35) feet.
The property is a substation for Florida Power Corporation and is located to the east of the
intersection of Shore and Panama Roads. The property is zoned R-lAA (One Family Dwelling
District):
LeBlanc gave his presentation, and stated this variance would allow a concrete telecommunication
monopole to be built in excess of thirty five feet, namely approximately 120 feet. LeBlanc stated that
the property owners that would be affected by this were notified of this request. Discussion.
William Fernandez, 250 Panama Road East, spoke on this request. Fernandez stated that as President
of the RancWands Homeowners Assoc., the Officers of the Homeowners Assoc., has discussed this
request and stated that so long as it is confined within the boundary of the Florida Power substation
through their easement and stated that they (Assoc.) will remain neutral on this matter. Fernandez
also stated he is the fee simple owner of the 100' stretch of land underlying the Florida Power
Corporation easement in Block E, which has some rather tall metal monopoles and if it is
incompatible and the Board of Adjustment doesn't approve the variance, Fernandez stated that he
would be happy to talk to the representatives about leasing them a pole that they can construct on
the corner of Hayes and Bahama on the power easement for $1,000 a month.
Thorp Earley, 4224 Enwood Landing Drive, Orlando, developer of Seville Chase subdivision, stated
the subdivision is 110 lots and stated that he doesn't have a problem with the pole's height, but does
have a concern about the location. Earley stated that the location in question at this point would be
directly across from their secondary entrance into the 110 lot subdivision. Earley stated that he feels
there is a better way to do this and after researching, has found out that the City owns property to
the north of the power easement, where at this time there are effluent ponds and spray fields. If you
were to go to the eastern part of the City owned property (by the ponds) you could put the pole there
and minimize any impact for any homeowners in the area. Earley said it is their concern that the
location even within the Florida Power substation area would have a direct impact on his subdivision
and stated if the City could put it on their property, not only does the City get the lease money but
the City would minimize the impact.
LeBlanc showed the Board the location of the Florida Power easement and the City owned property.
RJ. Risser, 217 West McCromic, Apopka, stated that he owns a strip ofland (approx. 32 acres) that
is landlocked to the east of the substation and stated that he would like more information on what is
going on there. LeBlanc stated that there are no plans as of yet, this is for a height variance and if
it is granted then the plans would come into the City.
Harold Scott, 911 Augusta National Blvd., asked how many monopoles will be located in the City.
John Ariele, representative from PrimeCo (the company who would utilize the towers) stated there
will be two sites in the City and no other sites at this point in time.
BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 5. 1996
PAGE 3
Smith asked if there would be any disruptions in terms of the broadcast range. Ariele said no,
because of the frequency, there is absolutely no interference with other frequencies.
Smith asked about the height of the tower. Ariele said that is about the average height of a tower,
100' to 120' (or a little higher than that). Ariele stated that part of what they are looking at in Winter
Springs is accommodating additional users; should additional users need to be accommodated, such
as the City of Winter Springs Public Safety and so forth. They have to have enough vertical
separation to allow additional antennas to be put on those facilities.
Mr. Scott asked if the additional users be at the same frequencies and low power. Ariele stated no.
Scott said then there would be the possibility that other frequencies could interfere with present TV
or Satellite reception. Ariele said no, we are talking about the Public Safety system which is already
in place and we are talking about a whole different megahertz frequency. Discussion. LeBlanc stated
that the City would not need the space for Public Safety but would possibly need it for the Utility
Department.
Richard Noble, representative from Florida Power, stated that Florida Power made application
originally for a very specific site for the pole on the substation site, it is located in the northeast
portion of the substation and showed the specific site on his drawing to the Board. Noble stated that
they are asking for that specific spot, they are not asking for the whole site and work out the location
later, they have already performed the soil boring and know that the pole would work in that exact
location. There was discussion as to where the pole would be located on the Florida Power property.
There was also discussion on the location of the pole on a different site as was discussed by Earley.
Noble stated that there are a number of poles on the substation site and the heights range from 50'
and up to about 110', the poles on the northwest corner of the site are the taller poles. Discussion.
Ariele stated that they have a situation that they have an opportunity to work with Florida Power and
a potential alternate site and said they respectfully request is that they would certainly entertain an
opportunity to work with the City of Winter Springs for an alternate site, they have had their
construction people meet with the Director of Utilities as early as today, and they did find an alternate
location that would work for their purposes and would work for the City's purposes, however, they
don't have a lease agreement yet with the City of Winter Springs, and said they would like to run both
of those parallel and leave it up to the City Commission to decide which way they would rather go,
pending the Board of Adjustment's review of the situation. Ariele stated that yes, they do have a site
located and have met with the City officials and have determined a site that would work for both
parties.
Wixted moved to recommend approval to the City Commission the application as presented.
Seconded by Becker. Discussion. Smith said that he would feel more comfortable if the site were
located on the City property to allow the City to maintain and control and stated that he respects
Florida Power's position as they have be somewhat generous in allowing some flexibility in that
regard and Smith stated that he would like to amend the motion to allow at least the two
BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 5. 1996
PAGE 4
alternative sites to be considered (on Florida Power and City of Winter Springs property) to
be determined and let the City Commission make the final determination based upon
recommendation by City Staff. Discussion on the amendment. Wixted stated if the Board
members are in accord he will entertain the amendment to change his motion. Seconded by
Harrow. Vote on the amendment to the motion: All aye. Vote on the motion: All aye.
Request of the City of Winter Springs for a Variance to Chapter 20 of the Code of Ordinances which
will allow a concrete, telecommunication monopole to be built in excess of fifty (50) feet. This
property is the West Reclamation Facility and is located about two thousand (2,000) feet north of
West S.R. 434, west of the Florida Power Corporation Easement, west of the Winter Springs Golf
Course and northeast of Golf Terrace Apartments (1000 West State Road 434). The property is
zoned Planned Unit Development (PUD):
LeBlanc gave his presentation and showed the Board the site location on the map.
Bob Reeve, General Manager for the Winter Springs Golf Club, 900 West S.R. 434, spoke on the
request. Reeve stated that the location of this tower (towards the 13th hole) there is no problem with
the location but have concern about the height of the pole, however they would like to cooperate
with the City if that is the best location. Discussion.
Mr. Ariele stated to clarify that the application at this time is to include a 140' pole in this location
due to the fact that the City Public Utilities and other co-location opportunities, to prevent the need
for another tower in the general location, they try to make use of the height to accommodate other
users. LeBlanc stated that at the present time the City is considering 120', the Board could make in
their recommendation that the pole be allowed to no more than a maximum of 140'.
Becker moved to recommend approval to the City Commission to the request for the monopole
up to a maximum of 140'. Seconded by Wixted. Vote: All aye.
The meeting adjourned at 7:50 p.m.
Respectfully Submitted,
Margo M. Hopkins,
City Clerk
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