Attorney General: Hon. Mortimer A. Gelston, Connecticut Siting Council, 1995-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 17, 1995

Hon. Mortimer A. Gelston
Chairman
Connecticut Siting Council
136 Main Street, Suite 401
New Britain, CT 06051-4225

Dear Chairman Gelston:

You have requested our opinion regarding the legal status of a tower to be used by WHUS, the radio station funded by student activity fees at the University of Connecticut at Storrs (the "University"). Specifically, you have asked whether the tower, on which the Department of Public Safety, Division of State Police (the "State Police") intends to place telecommunications equipment, is "owned or operated by the state" within the meaning of the Public Utility Environmental Standards Act ("PUESA"), Conn. Gen. Stat. 16-50i(a)(6). If the WHUS tower is a tower "owned or operated by the state," its construction and modification must comply with the requirements of the PUESA and the regulations promulgated thereunder.

We understand the facts to be as follows: The State Police have filed with the Connecticut Siting Council (the "Council") a proposed modification to a telecommunications tower by which the State Police would place antennas on a tower to be constructed and used by the WHUS radio station. By doing so, the State Police are requesting an exemption under Conn. Agencies Regs. 16-50j-72 from the certification requirements of the PUESA. WHUS is a radio station funded by student activity fees at the University and purports to be the owner of the tower. WHUS is not separately incorporated. Although the statutes governing student activity funds allow for student control of such funds, this option for student control has not been exercised. WHUS's license from the Federal Communications Commission ("FCC") is held by the University Board of Trustees. The land on which the tower will be located is owned by the University. The State Police, WHUS and the University have entered into a license agreement under which WHUS is responsible for the erection of a 320 foot tower on and adjacent to which the State Police shall have the right to place its telecommunications equipment.

The PUESA gives the Council jurisdiction over the siting of certain telecommunications towers. Specifically, Conn. Gen. Stat. 16-50i(a)(6) defines telecommunications towers within the Council's jurisdiction as including towers "owned or operated by the state." As it appears from the facts presented that WHUS is the owner of the tower, the question raised is whether WHUS is part of the "state" within the meaning of 16-50i(a)(6).1

In enacting the PUESA, the General Assembly found that "telecommunication towers have had a significant impact on the environment and ecology of the state of Connecticut; and that continued operation and development of such...towers, if not properly planned and controlled, could adversely affect the quality of the environment, the ecological, scenic, historic and recreational values of the state." Conn. Gen. Stat. 16-50g. The purposes of the PUESA, as it relates to telecommunication towers, include:

to provide for the balancing of the need for adequate and reliable public utility services at the lowest reasonable cost to consumers with the need to protect the environment and ecology of the state and to minimize damage to scenic, historic, and recreational values; to provide environmental quality standards and criteria for the location, design, construction and operation of facilities for the furnishing of public utility services at least as stringent as the federal environmental quality standards and criteria, and technically sufficient to assure the welfare and protection of the people of the state;... to promote the sharing of towers for fair consideration wherever technically, legally, environmentally and economically feasible to avoid the unnecessary proliferation of towers in the state....

Id. The rules of statutory construction require that the PUESA, including 16-50i(a)(6), be construed liberally to achieve these important legislative goals. See Okee Indus., Inc. v. National Grange Mut. Ins. Co., 225 Conn. 367, 374, 623 A.2d 483 (1993); Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).

WHUS is an entity funded by a student activity fund at the University. Such an activity fund is defined by statute as a "fund operated in any state educational, welfare or medical institution for the benefit of the...students of such institutions...the revenue of which is derived from the operation of canteens, vending machines, dramatics, recitals, student activity fees, membership fees, deposits or any other legal source compatible with the good government of such institutions." Conn. Gen. Stat. 4-52. Such funds must be used exclusively for the benefit of students. 23 Op. Atty. Gen. 345 (April 10, 1944). The administrative head of such institutions may establish an activity fund with the approval of the State Comptroller. Conn. Gen. Stat. 4-53.

The management of student activity funds "may be under the control of students...but shall be under the supervision of the administrative head of the institution, except that such funds shall be under the total control of students" if such control is approved in a referendum of a majority of at least forty percent of the students enrolled at the institution and paying activity fees. Conn. Gen. Stat. 4-54(a), (b). A referendum on whether to continue student control of the fund must be held at least every four years and at any time upon the petition of five per cent of the students enrolled at the institution and paying activity fees. If by referendum student control is rejected or discontinued, supervision of the student activity fund shall be vested in the administrative head of the institution. Conn. Gen. Stat. 4-54(c), (d). The administrative head of the institution, or the treasurer of the student government if the fund is student controlled, must file a balance sheet and statement of operations with the secretary of the Office of Policy and Management and with the Auditors of Public Accounts, who shall audit such funds. Conn. Gen. Stat. 4-55.

This statutory framework for student activity funds contains elements that might weigh both for and against the conclusion that an entity such as WHUS is part of the State within the meaning of 16-50i(a)(6). The student activity fund is supported by student activity fees and must be used exclusively for students. The exclusivity of the use of the fund, however, does not dictate that an entity receiving those funds, such as WHUS, is necessarily a private entity. Student activity funds are created and may be controlled by the administrative head of the University. Although students can obtain control over the funds through a referendum, in this case, the option for student control has not been exercised. In any event, control of the funds may revert back to the institution's administrator under certain conditions.

It is unnecessary, however, to decide whether these elements of the statutes governing student activity funds alone would be sufficient to make WHUS part of the State for purposes of the PUESA. Several aspects of the particular factual context presented are decisive. WHUS is not separately incorporated. More importantly, WHUS's FCC license is held by the University Board of Trustees, and applications or regulatory requests to the relevant federal agencies regarding WHUS broadcasting operations are made by the University Board of Trustees. The holder of an FCC license to broadcast is subject to a panoply of legal obligations and duties. See 47 U.S.C. 307 et seq. This form of involvement of the University in such a critical aspect of the legal existence and operation of WHUS is a sufficiently strong nexus with the State for determining that the WHUS tower falls within the scope of 16-50i(a)(6).

The purpose of the PUESA, as it pertains to towers, is to ensure that towers are located and constructed consistent with the protection of environmental, scenic, historic and recreational values of the State, to encourage tower sharing and to avoid the unnecessary proliferation of towers in the State. Conn. Gen. Stat. 16-50g. The legislature determined to include towers owned and operated by the State within the jurisdiction of the Council to ensure that the State's location and construction of towers also comply with these goals. Keeping in mind that the PUESA is a statute deserving of a liberal construction to achieve its purposes, see Manchester Environmental Coalition, 184 Conn. at 57, we conclude that the WHUS tower is "owned or operated by the state" within the meaning of 16-50i(a)(6).

Very truly yours,

Richard Blumenthal
Attorney General

Mark F. Kohler
Assistant Attorney General

RB/MFK/js


1 Neither the PUESA nor the Council's regulations specifically defines "telecommunications tower." The Council's established interpretation of that phrase, as it applies to towers owned or operated by the State, includes state-owned or operated radio broadcast towers. See Connecticut Siting Council Docket No. 118, Opinion, Decision and Order (Feb. 5, 1990). Moreover, the common meaning of "telecommunication" includes "communication by electronic transmission of impulses, as by telegraphy, cable, telephony, radio or television." American Heritage Dictionary 1249 (2d ed. 1982).


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