MoCo Residents have had enough of the false claims by the Telecom industry and their lobbyists AND by Councilmember Hans Riemer

Council’s narratives about residential wireless zoning requirements cannot be squared with what the FCC guidance actually states.


The following is an excerpt of a report by Montgomery County Clear Vistas. Read the entire document here.

Background Information: Zoning Text Amendments relating to “small” wireless facilities

  • On July 27, 2021, the Council approved Zoning Text Amendment (ZTA) 19-07, which enables deployment of telecommunications towers in County rights-of-way in residential and agricultural zones. These zones include most single-family homes and many (if not most) multifamily dwellings in the County.
  • On May 15, 2018, the Council approved ZTA 18-02, which allowed similar deployments in commercial and mixed commercial/residential zones, with the placement of towers just 10 feet from existing buildings (including homes and schools).
  • Montgomery County was not required to adopt these ZTAs in order to comply with federal law:
    • Montgomery County is not and was not vulnerable to liability for “a lot of money” if it failed to adopt these ZTAs, as some have claimed. The Supreme Court ruled in 2005 that localities cannot be fined or liable for money damages for failing to deploy a cell tower. (4)
    • The below comparison table summarizes key areas in which 19-07 is more permissive, with towers much closer to homes, than FCC guidelines.
  • Both of these ZTAs were passed without input from the Office of the People’s Counsel (OPC), a required step to amend the zoning code. (5) OPC was created to “protect the public interest” in zoning matters. (6) The Council had previously defunded OPC and voted again on May 11, 2022 to withhold funding. (7)

“If you don’t like this then you can go ahead and accept it because the FCC requires it”. DC News Now Video

“…to quote a decision maker in my community who said, and I quote, they were commanded by the FCC to allow cell towers in homes in a residential area and that’s really not true–it’s really not factual” Theodora Scarato, Montgomery County Resident and Executive Director of Environmental Health Trust to the  House Science, Technology and Energy Committee  (09/26)

Recent federal court decisions regarding FCC

  • On August 13, 2021, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Environmental Health Trust et al. (8), as follows:
    • The Federal Communications Commission (FCC) violated federal law (the Administrative Procedures Act, or APA) by failing to provide a “reasoned explanation” for deciding that its wireless radiation exposure limits do not need updating, even though these limits have not been reviewed since 1996.
    • The Food and Drug Administration (FDA) has not provided an “articulation of the factual… bases” for its conclusions, which “represent[s] a failure by the FDA”, and therefore the FCC cannot rely upon FDA webpage FAQs on cell phone safety.
    • All other expert agencies in the federal government have been silent on the question of safety, and “silence does not even indicate whether the expert agencies… considered any of the evidence”.
    • The Court ordered FCC to “provide a reasoned explanation for its decision” and to address the impacts of RF radiation on children and the environment. FCC has not yet complied with this order.
  • Additional background regarding the EH Trust decision:
    • Petitioners submitted over 11,000 pages of scientific evidence indicating health effects of wireless radiation exposure at levels below FCC’s current limits.
    • FCC is required to set exposure limits to protect public health, but it is not a health agency and relies on other expert agencies’ analyses (which have not been done).
    • FDA acknowledges that it has not made any determination about the safety of cell towers. (9,10)
  • Title 47 Section 332 of the US Code (11) says local governments may not “regulate the placement” of cell towers based on environmental effects of radiofrequency emissions, which is based on the premise that the FCC complies with environmental protection law before it seeks to preempt local zoning authority.

    • However, in 2019 the U.S. Court of Appeals for the D.C. Circuit in the Keetoowah case found that FCC violated federal law (the APA) by failing to justify its assertion that “small cell” wireless facilities “pose little to no environmental risk”. (12) The court held that the FCC acted in an arbitrary and capricious manner and that FCC’s “public interest analysis did not meet the standard of reasoned decisionmaking.” Although almost three years have passed since that decision, we are not aware of FCC having provided any analysis of the environmental effects of small cell networks or of their cumulative effects.
    • Wireless carriers have asserted that “environmental effects” includes “health effects”, however this has not been tested in court. Courts have issued decisions based on “potential” health effects or “concerns” about health effects, but not on imminent or actual effects. (13) There is an open legal question about this assertion. (14)

Wireless facilities’ regulatory compliance in the County

  • The County has been approving wireless transmission facilities on rooftops of multifamily residential buildings since at least 1996, as far back as its public database is available. Many of these multifamily homes provide relatively affordable housing in our high-priced County.
  • Residents have brought to the attention of the County’s Transmission Facilities Coordination Group (also known as the Tower Committee) errors in many applications for wireless facilities. For example, in 2020, residents pointed out to the Committee an apparent pattern of errors relating to the underreporting of expected levels of exposure to wireless radiation. This pattern affected at least 25 sites, including nine residential buildings and two County high schools. (15) All had been favorably recommended by the Committee before the errors were discovered, requiring the Committee to seek corrections and re-consideration.

  • Applicants’ own estimates often predict that their antennae on top of residential buildings will generate levels of exposure to wireless radiation in certain areas atop the building and/or over the sides that will exceed federal exposure limits for the general public, sometimes by dozens of times. (16) In one example, the maximum anticipated level of exposure in one area on the rooftop was predicted to be as high as 114 times FCC limits. (17)

  • The Tower Committee does not include any resident representatives, nor are residents permitted to speak at its meetings.

  • The County currently has no policy or procedure to ensure that, after installation, wireless facilities – whether in rights-of-way, on school property, on private property, or on buildings – comply with County requirements and do not exceed FCC exposure limits, even when applications anticipate exceeding those limits.

Comparison between FCC guidelines and recent zoning changes adopted by the Council For Residential and Agricultural Zones summarizing key areas in which 19-07 is more permissive, with towers much closer to homes, than FCC guidelines.

Topic Description FCC guideline ZTA 19-07

< 30 feet from homes (18)

ZTA 19-07

≥ 30 feet from homes(19)

Setbacks Minimum distance from a dwelling (previously 300 feet)
  • No requirement or specific guidance
  • Allowed

  • Allowed

Shot clock

Number of days to process an application to install a small cell tower

  • 90 days, or longer if needed (20)

  • 90 days

  • 90 days


Whether notice of an application is sent to nearby residents

  • Allowed

  • Sent to property owners within 300 feet

  • Eliminated

Hearing process

Administrative hearing to consider applications and hearing examiner autonomy

  • Permitted at any distance

  • Eliminated hearing examiner ability to reject an application

  • Eliminated


Ability for residents to appeal a hearing decision

  • Allowed

  • Eliminated

  • Eliminated


Ensuring compliance with FCC radiofrequency exposure limits

  • Allowed

  • None

  • None


Amount County may charge the applicant for use of the County right-of-way (21)

  • Can recover all costs

  • $2600

  • $690


Ability of Counties to specify the visual look of cell towers

  • Allowed

  • Hearing examiner minimal latitude

  • Same color as pole

Antenna size  Maximum size of a “small cell” antenna, less than 50 feet from the ground
  • 3 cubic feet
  • 6 cubic feet
  • 6 cubic feet
Liability Antenna owner responsible for liability arising from its deployment
  • Allowed
  • No requirement
  • No requirement

Note: Table above summarizes the changes enacted by ZTA 19-07, which amended the zoning code section 59-3.5.2; this summary does not capture all aspects of a complex zoning code, nor does it reflect the applicability of section 59-3.5.14, which is the subject of a proposed ZTA 22-01 (see endnote 3).






5 See Zoning Ordinance, Appendix B, section 2(a)


7 PHED Committee recommended withholding OPC funding: Full Council adopted this recommendation without discussion:

Recommendation shown on the summary for that Council meeting: 20220511.pdf

8$file/20-1025- 1910111.pdf

9 See letter dated January 11, 2022, from FDA Center for Devices and Radiological Health Radiation-.pdf

10 See public comments by local resident groups regarding Montgomery County’s reliance on FDA statements:


12 This paragraph has been updated from an earlier version.

13 Maryland is located in the Fourth Circuit of the federal appeals courts. This court has ruled against using “potential” health effects, or “concerns” about health effects as a basis for rejecting a permit; however that does not preclude placement decisions based upon actual health effects, known harms, or imminent harms.

14 629/196710/20211025140205639_Santa%20Fe%20Alliance%20Petition.pdf

15 MoCo-Tower-Committee-Review-Red3.pdf

16 See County tower database for examples:

17 See page 124

18 “Conditional use” refers to permits that require public notice and a zoning hearing. ZTA 19-07 changed this setback from 300 feet to less than 30 feet.

19 “Limited use” refers to permits that may be issued without notice and without a zoning hearing. ZTA 19-07 reduced this setback from 300 feet to 30 feet or greater from any building intended for human occupation.

20 See page 54

21 Localities may charge fees to recover their costs. FCC established a “safe harbor”, meaning any fees at or below this amount are automatically presumed lawful without having to estimate costs. Prior to 19-07, the fee was $16,390 per application (see pdf page 7) 601_Adopted_20160913.pdf

There is no FCC requirement, no plausible legal justification.
It appears the purpose is yet another gratuitous handout to the wireless industry.

Posted in Montgomery County, Reports and tagged , .