Not in my backyard: the siting of wireless communications facilities.

• Author: Tuesley, Malcolm J.

It shall be the policy of the United States to encourage the provision of new technologies and services to the public.(1) I. INTRODUCTION

Wireless service providers are not unlike their more traditional counterparts in their need for an infrastructure from which to provide service. In addition to traditional landlines, wireless communications facilities (WCFs) require numerous strategically placed transmission antennae, which are necessary to send and receive signals. New wireless technology has created new tower construction, which was valued at $1.6 billion in 1996 and is expected to peak in 2000 at $2.3 billion.(2) There are already over 57,000 radio transmission sites throughout the country, with an anticipated 110,000 antennae to be in place by 2002.(3) This proliferation of antennae is a function of the burgeoning demand for wireless service and new technology.

The two major competing modes of wireless communications are cellular and Personal Communications Services (PCS). As demand for cellular service has outgrown the available radio spectrum used for cellular signals,(4) the wireless industry has turned to PCS, which utilizes digital technology that triples the capacity of traditional cellular systems.(5) Personal Communications Services enable "users to send and receive voice, data and video communications to and from any location."(6) However, "[a]lthough PCS offer advantages in service, performance and quality, one potential drawback is that a PCS network requires four times the number of antennas and towers to transmit signals in order to meet the same coverage as cellular services."(7) This demand for new sites caught many local zoning authorities off guard, as their antiquated zoning laws were not drafted to respond to the unique demands of PCS tower siting.

This Note seeks first to establish the significance of a fully deployed wireless infrastructure and its potential impact. Part III offers a comprehensive analysis of the relevant federal regulation of tower siting, including recent judicial action. Drawing on existing case law, this Part makes recommendations for the enforcement of the particular provisions of the Telecommunications Act of 1996 (1996 Act or Act). Part IV then discusses the role of state and local governments, emphasizing the need for cooperation and education among all relevant participants.

2. THE CURRENT STATE OF AFFAIRS

   Telephony is at the forefront of the dynamic communications revolution. "The mobile telephone, scourge of the commuter train, the beach and the ski slopes, has been the mainstay of the telecommunications revolution over the past five years."(8) The significance of the mobile telephone cannot be understated, and while its impact on the developing world will no doubt be revolutionary, it also carries special significance for local communities as it offers an alternative to the local near-monopoly.(9) It is this ability of wireless service to serve as a catalyst in opening local telephone markets that offers an opportunity for profound change. The mobile telephone, once available only to the affluent, continues to become more relevant to the life of the average American, and the reasons are simple.

   One of the most promising developments in communications technology is the ability of the mobile phone to act as a substitute to a traditional landline. According to Federal Communications Commission Chairman William Kennard: "[T]he overarching goal should be--first and foremost--doing everything we can to foster an environment wherein wireless can become a full-fledged substitute for wireline service."(10) A shortage of competition is largely to blame for the fact that the cost of a wired call is still generally less than that of a call made from a mobile phone.(11) "`The capital costs for cellular are lower than for wired,'"(12) and the available evidence supports the cost-reducing effect of competition. With a fully deployed PCS network, effective competition may not be far off. "[A] new group of ... wireless firms are challenging the 'baby Bells' by offering small and medium-sized businesses, even entire rural townships, permanent wireless connections that include voice, data and high-speed Internet through a 12-in. rooftop antenna at a 30% discount."(13) In addition, when the 1996 Act was debated in Congress, the baby Bells were opposed to any shift in the jurisdictional balance concerning federal oversight, a clear indicator of the perceived threat that wireless and other services posed to their entrenched positions.(14) Clearly, the presence of wireless providers adds a new credible threat to entrenched local telephone service providers.

   In markets were PCS have been introduced, there has been a 25 percent drop in prices since 1994, compared to a 10 percent reduction in markets with only cellular providers.(15) As a result, when PCS are introduced into a market, service providers will see their margins fall as a result of an increase in competition and a reduction in cost to customers. The news is much better for customers, who will welcome the savings and embrace the affordable and convenient alternative to traditional fixed-line telephony providers, which may now have an incentive to reduce costs.

   The benefits of mobile communications are not limited to enhanced competition in the local exchange market. Mobiles provide a partial solution to the inelastic supply of human time, an often "limiting factor in many mature communications markets (think of television)."(16) "[T]he mobile has found a new niche: those moments of the day when people are walking to work, driving a car or sitting on a ski lift."(17) In addition, there are also the obvious safety and security attributes of a mobile telephone. Not only do consumer habits of today support an expanded role for wireless telephony, but the future also appears to be even more promising for wireless technology.

   Inherently flexible, wireless services make new service offerings possible as consumer demands grow and change.(18) Moreover, given the advancements in mobile phones, which allow for the sending and receiving of electronic mail and the browsing of the Internet along with countless other services, the utilization of wireless services will no doubt escalate at an alarming rate. "The result is `better, faster, cheaper'--the battle-cry of the communications revolution."(19) Given these inherent characteristics of mobile telephony, the advantages for local communities and their citizens make a well-developed and fully deployed wireless infrastructure vital.

   To fully realize the benefits of wireless communications, service providers and communities need to work together. The objectives of both community leaders and planners and service providers are reconcilable with proper communication and planning. The primary concern of service providers is to begin offering service in as expeditious fashion as possible,(20) while community leaders and planners want to create as inviting an environment as possible to residents. These seemingly simplistic objectives provide great insight into the issues of tower siting. "Communities can provide incentives that will encourage wireless service providers to design facilities that are consistent with community character."(21) Tower placement can be encouraged or discouraged by the manner in which the city handles the approval process.(22)

   The problems facing the deployment of a wireless infrastructure able to support PCS have been summarized as follows:

   (1) the absence of a process, in some jurisdictions, for granting the necessary permits to build these facilities; (2) the presence of a process, in some jurisdictions, which actually hampers deployment by imposing unnecessary delays and transaction costs; and (3) some short-sighted actors who, in some jurisdictions, actually seek to prohibit competition or restrict the build-out of wireless services by imposing unscientific "local technical standards" on RF emissions.(23) Once state and local governments recognize and gain an understanding of the shortcomings of each of the potential problem areas in light of the current federal regulatory environment, full deployment of a wireless infrastructure becomes a desirable and attainable goal.

3. FEDERAL LAW

   Given the more than 30,000 zoning jurisdictions in the United States and the resulting patchwork of zoning laws that cover the country,(24) federal intervention is likely to be necessary at some level. The 1996 Act, which seeks to "encourage the rapid deployment of new telecommunications technologies,"(25) and attempts to minimize any potential hindrances, including potential delays at the local level, provides a starting point. Communities and service providers must be cognizant of the role of the federal government, including the Federal Communications Commission (FCC or Commission). While "FCC officials have explained that strong and often emotional opposition to tower siting has made the commission reluctant to dictate tower siting decisions to local officials,"(26) the Commission may "utilize the preemptory authority granted by Section 704[] to quell barriers to PCS expansion and tower siting."(27) As a result, "the affected groups should anticipate working cooperatively, collocating towers and educating each other to narrow the gap between their respective polarized views."(28)

   1. The Telecommunications Act of 1996

      The Second Circuit recently observed that section 704 "bristles with potential issues, from the proper allocation of the burden of proof through the available remedies for violation of the statute's requirements."(29) The 1996 Act "specifies procedures which must be followed for acting on a request to place these kinds of facilities, and provides for review in the courts or the FCC of any decision by a zoning authority that is inconsistent with Section 704."(30) With the passage of the 1996 Act, "Congress ... created a national mandate for more...