In a move that raised the hackles of local opponents to the proposed consolidated DTV tower on Lookout Mountain at the western edge of metropolitan Denver, the U.S. Congress last month passed a bill introduced by Sen. Wayne Allard (R-Colo.) to take away from all local government units in Jefferson County the right to decide if the tower will be built.
"This legislation will ensure more than 600,000 Denver metro area residents who do not have cable TV or satellite TV will be able to receive free over-the-air digital TV," Allard said following House passage of the legislation by unanimous consent after midnight, Dec. 9. President Bush signed the bill, Dec. 22.
"The choice is simple," Allard said. "We go digital or we go dark. Going dark is not an option for the many Colorado households who rely on free over-the-air broadcasts for news, emergency alerts, and entertainment--particularly those who cannot afford satellite or cable.
"Facing a fast-approaching 2009 federal deadline for switching to digital TV, we needed a solution to provide free broadcast signals to the metro-Denver area. I am pleased to be part of a bipartisan effort to preserve free television for Coloradoans."
The legislation, S.4092, was introduced in the Senate on Dec. 6, and passed by unanimous consent that same day. Democratic Colorado Sen. Ken Salazar co-sponsored the legislation.
Titled as "An Act to clarify certain land use in Jefferson County, Colorado," the bill text contains only 113 words: "Notwithstanding any applicable state or local land use or condemnation laws or regulations, and subject to all applicable federal laws and regulations, any person that holds an approved Federal Communications Commission permit to construct or install either a digital television broadcast station antenna or tower, or both, located on Lookout Mountain in Jefferson County in the State of Colorado, may, at such location, construct, install, use, modify, replace, repair, or consolidate such antenna or tower, or both, and all accompanying facilities and services associated with such digital television broadcasts, if such antenna or tower is of the same height or lower than the tallest existing analog broadcast antenna or tower at such location."
Passage of S.4092 immediately sparked a public statement from Canyon Area Residents for the Environment, vocal local opponents to the tower.
"Colorado Sens. Allard and Salazar, under the cover of darkness introduced and passed in both houses of the U.S. Congress a bill to pre-empt local land-use decisions and force the Lake Cedar Group tower on Lookout Mountain.
"The bill allows any of the broadcasters on Lookout to put up anything the FCC approves, regardless of Jefferson County land-use laws. It will not matter if the radiation harms our health, interferes with our equipment or causes our real estate values to crash.
"This bill destroys everything we have worked for during the last decade and subordinates all our property rights to the broadcasters. It is a huge violation of the 10th Amendment.... We have been sacrificed by those we thought represented us."
The statement said the bill ignores the findings of a five-year Colorado State University study of 500 Lookout Mountain residents, which stated that "increasing amounts of RF (at levels 100 times less than the FCC says is safe) cause increasing biological changes in our body, plus the sworn testimony of numerous scientists, physicians, and engineers."
"Sen. Wayne Allard demonstrated extraordinary leadership in a bipartisan effort to break the deadlock over construction of the consolidated tower on Lookout Mountain," said Marv Rockford, spokesperson for the Lake Cedar Group, a consortium of four Denver stations that wants to tear down their existing analog towers and erect one consolidated tower. The four stations include KCNC-TV (CBS), KMGH-TV (ABC), KUSA-TV (NBC), and KTVD-TV (formerly UPN, now MyNetworkTV).
Asked about the source of the legislation, Rockford said, "We have been in touch with the entire Colorado Congressional delegation for years, keeping them informed about the progress or lack of progress in getting county approval to build the consolidated tower. They're interested in what's going on here because Denver has stood in the way of a full rollout across the country of the transition to digital TV."
Rockford said the legislation was written by the staffs of both Sens. Allard and Salazar. "We worked with them to make sure the language fit the situation here. Our legal counsel provided guidance on the language that would do what they wanted to accomplish in the legislation."
That attorney, Dave Stark of Faegre & Benson, with offices in Minneapolis and Denver, is handling Lake Cedar Group's appeals of Jefferson County's repeated denials of the zoning change that would permit tower construction.
The case most recently was remanded back to the county commission in May by Jefferson County District Judge R. Brooke Jackson, who ordered the commissioners to make a final zoning determination, which didn't happen before Congress got involved.
"We've been waiting since May for the commissioners to take action," Stark said. "This federal legislation now pre-empts all state and local land use regulations and condemnation proceedings."
His last point is critical because the City of Golden, at the foot of Lookout Mountain, in June filed for condemnation of the Lake Cedar Group property in a move to block tower construction.
Despite commission opposition to the consolidated tower, Jefferson County filed a suit to block condemnation of any county land outside Golden city boundaries. Lake Cedar Groups also asked for the condemnation suit to be dismissed. The new federal legislation would void the case.
CARE President Dick Bartlett said Congress does not have the right to usurp county control over local land use in favor of a few private property owners. He argued that S.4092 violates the 10th Amendment, which limits federal control of state governments.
"It is a fundamental principle of the Constitution that Congress has the power to pre-empt state and local laws," Stark said. "Congress has expressed a clear intent to pre-empt local laws with this bill."
"The language of the bill is pretty straightforward," Rockford said. "This is obviously a federal mandate for the construction of a federally licensed broadcast facility. The federal government has already established a precedent of pre-empting local zoning jurisdiction over microwave cell phone towers, and this is no different."
The Lookout Mountain bill came as a total surprise to local officials, said Assistant Jefferson County Attorney Eric Butler. "We're still reviewing the bill and trying to determine its implications for our land-use policies, and there's some uncertainty as to exactly which telecommunication providers on the mountain this legislation will apply to," he said.
For example, Denver PBS station KRMA-TV originally was part of the Lake Cedar Group, but KRMA opted for an innovative ground-level DTV transmission array on nearby Mount Morrison to the south. County commissioners denied the requisite zoning change, and that denial is being appealed. Butler said he's unsure how S.4092 would apply to KRMA's presence on Lookout Mountain.
Tribune-owned KWGN-TV also has an analog tower on the mountain that may be effected by S.4092, he said, though he's uncertain about how the bill may affect the fate of the radio and microwave towers there.
"It's premature to say if we have grounds for a legal challenge," Butler said, "but it's obvious the intention is to get the Lake Cedar Group tower built no matter what the county says. Part of our decision on what to do may be based on what we learn about the way the bill was passed."
Butler said the Library of Congress Web site THOMAS revealed that S.4092 was introduced by Allard Dec. 6, was read three times, and listed as item No. 94 amid 30 bills passed by unanimous consent before the Senate adjourned at 9:30 p.m.
"The whole thing was very stealthily done in the closing hours of the legislative session when no one is really paying close attention," said Deb Carney, legal director for CARE. "The bill clearly was hotlined through the Senate and House without any debate or scrutiny."
She said that CARE didn't know about the bill until Friday when a reporter from radio KGNU called to ask for a response.
"We contacted our Congressman, Rep. Tom Tancredo (R-Colo.). His chief of staff, Mac Zimmerman, said Tancredo had not heard anything about the bill until our call, and that he would have objected had he heard about it. He said the bill was not on their radar. A call to Zimmerman asking for confirmation was not returned before press time.
A clerk for the Senate Republican Conference, which e-mails all hotline notifications, said she could not find any record of a notice about S.4092 on or before Dec. 6. A staff member in the office of Sen. Patrick Leahy (D-Vt.), a vocal opponent of hotlining, also could not find any record of receiving advance notice about S.4092.
Carney charged Allard violated Senate rules for unanimous consent. Senators must be notified in advance about bills that will be hotlined. If there is one objection, a bill cannot be passed without debate.
"I think Lake Cedar Group has been laying the groundwork to do this for a long time," Carney said.
With Jefferson county still opposing the tower, with Golden trying to condemn the land, with scientific evidence of the radiation health risks, with engineering evidence that metro Denver could receive as good or better signals from higher antennas located on Eldorado Mountain to the north, "they chose to act late at night in the last days and minutes of a lame duck Congress," Carney said. "That's just not right."
Marv Rockford said he did not know what time of day the Senate voted on S.4092. "What I do know is that Congress has authorized the construction of the consolidated tower. I cannot speculate on whether there is going to be a legal protest. What I can say is that we are finally going to move forward with all due speed to build a tower on the only suitable site to ensure that the entire community has access to free over-the-air digital television."