Can You Hear Me Now? the Race to Provide America With Universal, High-speed Wireless Coverage

• Citation: Vol. 9 No. 2
• Publication year: 2013

Washington Journal of Law, Technology and Arts Volume 9, Issue 2 Fall 2013

Can You Hear Me Now? The Race to Provide America with Universal, High-Speed Wireless Coverage

Dina Neda Rezvani(fn*)© Dina Neda Rezvani

ABSTRACT

As the United States becomes increasingly dependent on universal, high-speed wireless services, infrastructural limitations are producing tension. The interests of consumers, telecommunications companies, state and local authorities, and businesses, as well as national security, are all at stake. Yet legal uncertainty stemming from a split among federal circuit courts hampers the development of solutions. The courts diverge on the interpretation of a key provision of the Telecommunications Act (TCA), 47 U.S.C. § 332(c)(7)(B), that regulates wireless service providers' ability to erect new towers. There is great need for a national standard to give mobile providers a uniform means of accommodating growing demand. Without such a standard, courts apply the TCA incongruently, affecting consumers and providers alike and ultimately impacting critical infrastructure. The Federal Communications Commission or Congress should set a uniform standard, rather than relying on the courts to confront the issue unevenly on a case-by-case basis.

TABLE OF CONTENTS

Introduction ................................................................................. 116

I. The Telecommunications Act .................................................. 122

A. The Act ........................................................................... 122

B. The Legislative History .................................................. 123

II. The Circuit Split ...................................................................... 125

A. Showing a "Significant Gap" in Coverage ..................... 126

1. The "One-Provider Rule" .......................................... 126

2. The "Multiple-Provider Rule" ................................... 127

A. Showing Necessity ......................................................... 129

1. The "Least Intrusive" Standard ................................. 130

2. The "No Viable Alternatives" Standard .................... 131

III. The Stakes ............................................................................. 132

Conclusion .................................................................................. 133

INTRODUCTION

Today's mobile phones are revolutionizing the way we live: from our phones we can summon street views of towns across the globe, turn off the lights in our homes while sitting in an airport lounge, or broadcast a television show from the previous night while commuting by train. The advanced data-transmitting technology that powers this revolution depends on the availability of massive bands of radiofrequency waves, collectively referred to as "spectrum," for its survival.

Demand for data is rapidly increasing. Approximately 88% of adults in the United States-some 315.5 million people-subscribe to mobile services.(fn1) As of 2011, nearly one-third of U.S. households use mobile phones instead of landlines for voice access.(fn2) Moreover, approximately 17% of mobile phone users rely on their phones for primary access to the Internet.(fn3) "Annual investment in U.S. wireless services grew more than 40% between 2009 and 2012, to $30 billion from $21 billion, and is projected to rise to $35 billion in 2013."(fn4)

Towers communicate with wireless devices through radiofrequency waves.(fn5) Radiofrequency spectrum, as regulated, is a finite resource, and it has become increasingly scarce.(fn6) The Federal Communications Commission (FCC) estimates that demand for spectrum will soon be greater than supply.(fn7) The FCC is actively working to solve this dilemma, recently issuing a notice of proposed rulemaking that would provide greater spectrum to unlicensed devices, including smartphones, tablets, and similar personal wireless devices.(fn8) Additionally, President Barack Obama issued a memorandum encouraging agencies that have previously utilized spectrum for federal use to implement policies where they share access with commercial companies.(fn9)

While the availability of spectrum is a critical and well-recognized component of mobile wireless broadband,(fn10) the proximity of towers to customers is also essential to the provision of quality service.(fn11) Yet local communities are reluctant to allow more towers in their neighborhoods. Consequently, local and state governments are squeezed to make these critical infrastructure decisions.(fn12)

Tension is building as demand grows for reliable, fast, and ubiquitous service, and mobile providers are vying to meet this demand before their competitors. Telecommunications companies' key to market competitiveness is provision of coast-to-coast nationwide coverage, reaching even the most rural regions, at the highest speeds available.(fn13) However, telecommunications companies looking to build new towers or devices to create or improve such a nationwide network are governed, and in some cases thwarted, by the regulations stipulated in the Telecommunications Act of 1996 (TCA).(fn14)

The TCA preserves local authority over the location and construction of wireless communication facilities, with certain exceptions. Section 332(c)(7)(B) provides that a state or local government shall not "prohibit or have the effect of prohibiting the provision of personal wireless services" by "regulation of the placement, construction, and modification of personal wireless services."(fn15) A circuit split has developed as courts have decided which types of government actions are appropriately labeled "effective prohibition."(fn16)

First, courts are split over whether the denial of one provider's application to erect a new tower constitutes effective prohibition under the TCA.(fn17) The Fourth Circuit Court of Appeals in ATandT Wireless PCS v. City Council of Virginia Beach read the statute to mean that only blanket bans or general bans that affect all providers qualify as effective prohibition.(fn18) On the other hand, the Ninth Circuit Court of Appeals in Metro PCS v. City and County of San Francisco and the Sixth Circuit Court of Appeals in T-Mobile Central, LLC v. Charter Township of West Bloomfield rejected the Fourth Circuit's narrow reading and held that denial of a single provider's application violates the TCA.(fn19)

Most courts have expanded their analysis of effective prohibition beyond the question of whether there is a ban on all providers, focusing their analyses on individual wireless providers. In doing so, the courts have established a two-pronged test to determine whether the denial of a company's application constitutes an effective prohibition, asking (1) whether there is a significant gap in coverage, and (2) whether filling that gap is necessary and all other options have been thoroughly exhausted.(fn20) Courts have considered whether a state or local government can still violate the TCA in the absence of a general prohibition by preventing a wireless provider from closing a significant gap in coverage. However, courts vary on the interpretation of the term "significant gap," disagreeing on whether it refers to one provider's coverage, or all available coverage.

The Second, Third, and Fourth Circuits have adopted the "one-provider rule," under which there is not a significant gap in a particular area if at least one provider serves that area.(fn21) Conversely, the First Circuit, in Second Generation Props., L.P. v. Town of Pelham, and the Ninth Circuit, in MetroPCS, both rejected the one-provider rule and adopted a multiple-provider rule that evaluates each provider independently to determine whether each has a coverage gap in the area.(fn22) In 2009, the FCC weighed in on this issue, adopting the latter approach.(fn23) In August 2012, the Sixth Circuit, in T-Mobile Central, joined the latter camp.(fn24)

Once the court determines that there is a significant gap, the second prong of the test requires that providers demonstrate both the need to close the gap and evidence that there is no other feasible location to erect the facility. Again, the circuits have interpreted this provision differently. The Second, Third, Sixth, and Ninth Circuits have adopted a standard that requires the provider to demonstrate that the proposed means for closing the gap-most commonly, a new wireless tower-is the "least intrusive" means; that is, the provider must show that it has considered other locations, system designs, and tower designs.(fn25) The First and Seventh Circuits, on the other hand, require simply that the provider show there are no other viable alternatives.(fn26)

As a result of these divisions, telecommunications companies' market access and ability to expand infrastructure is greater in some circuits than in others. This creates a quandary for wireless providers seeking to meet increasing mobile data demand, which affects not only consumers but even national security.(fn27) As President Obama has argued, high-speed wireless access is essential to developing a technologically advanced twenty-first century society that is connected at all times.(fn28) As we become so intensely dependent on wireless infrastructure,(fn29) an inconsistent and ambiguous approach does not further the best interests of the United States or its people.

This Article will first outline the...