Small Town Pulls Plug on Cell Tower: A Lesson from Sitka, Alaska

Small Town Pulls Plug on Cell Tower: A Lesson from Sitka, Alaska

In a story we have been following for months, the residents of a small Alaskan island town who have been fighting against a proposed cell tower placement in a residential area were recently given the best news they could hope for, making over half a year of hard work worth it:  the proposed cell tower was officially rejected by a court decision this October.

Studying the details of this case should help other local municipalities fight proposals for inappropriately placed cell towers in their area, and the precedent set by this case could strengthen other legal battles that are fought on similar grounds.

How did Sitka, Alaska win this case, when the Telecommunications Act of 1996 only allows local governments to reject new cell tower placements under very specific conditions?

Sitka is a remote island town of roughly 8,400 residents who take pride in the spectacular scenery, wildlife and tight-knit neighborhoods.  Local wireless communications provider Tidal Networks had their sights set on a building location on a hill right above a residential neighborhood on Nancy Court, in an area with R-1 residential zoning, within 150 feet of homes.  They insisted that the cell tower would need to be a massive 120-foot monopole to provide the level of coverage they were targeting, even though the R-1 zoning laws restrict the height of cell towers to only 35 feet, to protect local aesthetics and property values.

Another major issue is that the proposed cell tower location is in a zone with considerable landslide risk.  This neighborhood is located at the edge of town, on the base of a hill.  Landslides at this location are a distinct possibility, and far more likely if the soil is disturbed through construction of a large cell tower.  Not only would the addition of a cell tower destabilize the ground in this area, making landslides more likely, but a strong landslide could cause the cell tower itself to collapse.  If this occurred, the tower would fall towards the neighborhood, and local residents would be in danger for not just their property, but their lives.

Aesthetics are an important subject for local residents, who specifically built their houses in this location for the breathtaking natural views of nearby mountains, thick trees of the temperate rainforest, and the ocean view below.

As soon as the local government notified residents of the planned tower, many of them became alarmed and began researching the potentially harmful health effects of living so close to a radio frequency radiation emitting cell tower.  Although the Telecommunications Act of 1996 specifically prohibits the rejection of cell towers based on the environmental effects of radio frequency emissions (which is absurd, as this should be a valid concern and argument in itself), fortunately Sitka had several other solid arguments to lean on, which were supported by the Act.

Tidal Networks filed for a variance (a zoning exception) to the 35-foot tower zoning restriction, arguing that the surrounding trees would block too much of the tower’s signal.  Even though the Sitka Planning Director initially recommended that the variance be granted, it ended up being denied the first time, in April, due to a lack of supporting evidence.  The telecom provider did not give up, and appealed their request, but it was eventually denied once more for several reasons.  R-1 residential zoning restrictions only allow cell towers up to 35 feet in height, and variances are only granted if the tower would serve a clear need in the community.  Sitka is already considered to be well serviced by wireless network providers, including accessible plans for low income residents, so the Tidal Networks tower would not be filling a need that was previously absent.

Another unusual aspect of the proposal that contributed to its denial by the court is the tower would have no wired fiber optic ground connection that would allow other local providers to place antennas on it, but would exclusively connect with satellite internet providers like Starlink.  This would limit the usefulness of the tower as a placement structure for other antennas, and the company provided no cost analysis plans for building out a wired ground connection, now or in the future.

One of the telecom’s arguments for being granted this tower location is that they investigated 129 different sites in the Sitka area, and the Nancy Court location was the only one providing adequate coverage.  It turns out that many of these 129 sites were private property, and property owners refused to sell their land to the telecom.  Since Tidal Networks intended to use grant money for this tower, and the grant required that Tidal has ownership over their building locations (instead of just leasing the land), the property owners’ refusal to sell automatically ruled out many of the other sites.

The Court Decision text states, “Public comments and letters were uniformly opposed to the variance based on concerns that construction of the tower would lower the value of nearby properties, would expose nearby residents to potentially dangerous radio emissions, destabilize landslide prone slopes in the area, and negatively impact aesthetics and land values in the area.”

The successful rejection of this tower was fully due to local residents banding together and taking quick and decisive action, both in seeking out legal assistance, as well as speaking out about the tower through letters and at local meetings throughout the entire process.  Early on, as soon as residents were informed of this tower proposal and became cognizant of its potential dangers, they formed Sitka For Safe Tech, and contacted Children’s Health Defense attorney Scott McCullough, an expert attorney with extensive experience with cell tower related cases.  This early action was vital to their success.

It is vastly easier to prevent a cell tower from being placed while in the early planning stages, than to cause a cell tower to be removed after it’s already been built.


Why is it so hard for local governments to reject cell towers?

The court decision document for the Sitka case included an insightful section that illustrates the heart of the problem of why rejecting cell towers is so difficult:

“Proposals to build wireless telecommunication towers invariably raise thorny issues for local zoning authorities. Much like high voltage power lines, highways, and airports, almost everyone uses the services made possible by these towers. Indeed, given the number of people and businesses who depend on the availability of reliable wireless networks, these towers are a necessity of modern life. Correspondingly, however, nobody wants a telecommunications tower constructed close to their home. If the decision to build these towers was effectively handed over to the owners of nearby properties, it seems a safe assumption that few would ever be built.”

This paragraph illustrates a classic conflict between the needs of the public and the values of the private.  The document then follows up by quoting the Telecommunications Act of 1996, and how Section 704 (which is an amendment to Section 332 of the original Communications Act of 1934) intends to balance the scales between the values of the private individual and the benefits desired by the public:

“For this reason, Congress has enacted provisions within the Telecommunications Act, that limit the ability of state and local governments to deny applications for the construction of “personal wireless service facilities.” These provisions, which have been codified at 47 U.S.C. §332(c)(7)(B), provide as follows:

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

 (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time

 (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

 (iv) No State or local government . . . may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

To the extent a local government denies an application to build a personal wireless service facility in violation of these provisions, the applicant may seek an injunction in federal court that overturns the denial.”

Overall, these rules provide a reasonable compromise between private and public needs.  The main exception is subsection (iv) that prohibits the rejection of cell towers on the basis of “the environmental effects of radio frequency emissions”, which could also be construed to include health effects.  At this time, as studies continue to pile up demonstrating harmful health effects (on humans, animals, trees, insects and more) from radio frequency radiation, there is a major movement towards overturning section 704 of the 1996 Act, and specifically subsection (iv).

The most vocal source of opposition is 704 No More, an initiative of the Children’s Health Defense, who have been instrumental in helping local municipalities battle inappropriate placement of cell towers.  The 704 No More initiative seeks to educate people about the need for an environmental and health based defense against cell tower placement, with the intention to eventually overturn or revise Section 704.


FCC seeks to override local zoning restrictions with new rule – don’t let them!

Ironically, or perhaps intentionally, the FCC is currently seeking movement in the opposite direction.  From FCC’s Docket 25-276, a Notice of Proposed Rulemaking is attempting to “streamline” tower placement by eliminating “regulatory burdens imposed at the state and local level”.  Even with the very reasonable rules already stated in the 1996 Act, which mostly favor the telecoms and not local governments, that is not enough for them.  They want to “expedite, eliminate and simplify permitting burdens”, which they argue are limiting economic development, job creation and energy production.

We don’t see what the problem is.  Aren’t there enough cell towers already?

Also, it is perfectly reasonable to require a large build-out of infrastructure (like a cell tower) to go through a full permitting and approval process, and not to be granted special benefits to skip over any part of a full assessment for appropriate placement and planning at the state and local level.

Local municipalities already have limited power to prevent cell tower placement, and must base their rejection on very specific arguments (as outlined in the 1996 Act above).  If a local government cannot listen to the concerns of the people they serve, and act as an intermediary between the needs of their citizens and the desires of large corporations (who may not truly have the benefit of the people in mind, over their own profits), then what fail-safe do we have to prevent unchecked growth that may be motivated by greed?

It is true that private values and public benefits can sometimes seem to be in conflict.  This should be where the “scales of justice” can step in, assess the nuances of an individual situation, and decide on a solution that is truly fair.  To do this successfully, the appropriate laws must be in place to act as a basic framework for these real-time decisions to be made in the courts.  We cannot completely skew the law in favor of large corporations, and leave no recourse for local areas to defend the needs of their people.

If we allow this, there would be nothing left to limit and safeguard against the greed of money-hungry corporations who aren’t serving a real need to “underserved” areas, and are mainly concerned with propping up as many cell towers as they can get away with.

The FCC Proceeding is titled “Build America: Eliminating Barriers to Wireless Deployments”, Docket Number 25-276.

A website titled Preserve Local Control has been created as a platform to spread the word about this proposed rule, so that we can submit comments directly to the FCC’s docket within a time-sensitive window.  If you want to share your opinion, please go here and read about how to submit comments, along with a sample comment, in case you need a template to start from: Preserve Local Control – https://www.25-276.org

 

What did Sitka, Alaska do correctly that other local areas can learn from?

Let’s go back to the successful Sitka case to close this out, and summarize what Sitka did right that other local areas fighting proposed cell tower installations could learn from.

It’s true that part of their success was situational:  the Tidal Networks cell tower proposal was almost doomed to fail, due to their bravado in assuming they could take advantage of the inertia of the system and be granted an easy variance to the zoning regulation on tower height.  They were also lazy in their planning, with an insufficient argument as to why they needed a 120-foot tower (instead of a more gentle compromise of a tower height somewhere between 35 and 120 feet).  Another aspect of the denial was due to the telecom’s inability to show that its proposed tower “would not be materially detrimental to the public welfare or injurious to the property nearby parcels.”  This likely refers to both the landslide risk of the area, as well as the tower affecting aesthetics and property values, both of which are strong grounds for a rejection that are well supported by the 1996 Act.

However, even with all its flaws, this tower proposal would have likely been approved seamlessly if local residents didn’t take a stand against it.

The court’s verdict also stated that 47 U.S.C. § 332(c)(7)(B) does not apply to the tower proposed by Tidal Networks, because it would only provide services for their fixed wireless broadband internet service subscribers, and not wider and more generic commercial mobile services “available to a substantial portion of the public” that the Act provides protection for.

Even though we currently cannot argue for the rejection of a cell tower on the grounds of environmental or health effects of RF radiation (which we are hoping will change!), there are still other arguments we can make that are strongly valid under the current laws.

The most important thing is to act quickly – as soon as you hear about plans for a proposed cell tower in your area, seek legal counsel from an experienced attorney (like Scott McCullough) to determine if your area has solid grounds on which to reject the tower placement.  Since the 1996 Act requires that local governments must “act on any request within a reasonable period of time”, this means you cannot delay taking action, because your local area is required to respond as quickly as possible.


Blushield supports the EMF and cell tower initiatives of Children’s Health Defense

Every month at Blushield, we donate a portion of our profits from our EMF protection devices specifically to the EMF and cell tower related initiatives of Children’s Health Defense.  This helps to fund vitally important cases against inappropriate and dangerous cell tower placements, including the recent successful case in Sitka, Alaska.

Every purchase you make to protect yourself from EMFs with Blushield home and portable devices will help fund cases that will protect the health and well-being of local families from cell towers that would be placed near homes and schools.


 

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