The effective prohibition preemption in modern wireless tower siting.

• Author: Erber, Andrew

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. History of the Effective Prohibition Preemption B. The Circuit Split on What Constitutes a Significant Gap in Coverage 1. The Single Provider Rule 2. The Multiple Provider Rule 3. The Case-by-Case Rule C. The Circuit Split on Filling the Significant Gap--Differing Evidentiary Standards D. The Current State of the Splits III. Analysis A. Characterizing Federal Preemption of State Police Powers Under the Effective Prohibition Preemption B. Chevron Deference in Light of City of Arlington v. Federal Communications Commission C. Circuit Splits that Survive the 2009 Declaratory Ruling 1. The Fourth Circuit's Case-by-Case Rule and the 2009 Declaratory Ruling 2. Remaining Sub-Split Within the Multiple Provider Standard on the Evidentiary Standards Necessary to Support a Finding of Effective Prohibition IV. RECOMMENDATIONS A. Congressional Action--Amending Section 332(c)(7)(B)(i)(II) to Include Explicit Consideration of Competitiveness Issues in Preemption Analysis B. FCC Action--Issuing a New Declaratory Ruling to Address the Remaining Circuit Splits V. CONCLUSION I. INTRODUCTION

In recent decades, rapid technological change, the growing importance of the information economy, and increased concern with local zoning values have precipitated conflict in the wireless communications sector over the placement of cellular towers. A war is being waged in federal courts, local zoning board meetings, and the halls of the Federal Communications Commission ("FCC") over the proper structure of local cellular markets and the appropriate role of local governments in the placement of wireless towers. On the one hand, state and local governments have inherent authority over the construction, placement, and appearance of buildings within their jurisdictions. (1) That authority is paired with a political loyalty to local constituencies who are primarily interested in limiting the construction of unsightly wireless towers near their properties. Advocates for strong local zoning authority point to a number of benefits that flow from regulating the use of land, including: reduction in nuisance costs associated with adjacent placement of incompatible uses; (2) protection of the aesthetic character of a neighborhood; (3) and protection of public health. (4) Where construction proposals conflict with these priorities, the delegation of police powers to zoning boards generally affords them a great deal of discretion in granting or denying variance from an approved zoning plan. (5) Conflict is particularly likely in the case of wireless tower siting applications in urban and suburban areas where neighborhood character is linked, in the eyes of landowners, to the value of individual plots and to the aesthetic character of the area. (6)

Opposite these localized values are federal telecommunications policies, which seek generally to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of telecommunications technologies." (7) The creation of nationwide telecommunications networks, of which personal wireless services are an increasingly important part, often necessitates overcoming localized aesthetic values to roll out the full measure of network benefits to the national population. (8) Wireless networks require comprehensive coverage and ubiquitous facilities nationwide to satisfy consumer expectations of strong mobile signals that provide reliable, high quality service. (9)

To aid in the deployment of advanced communications services, Congress passed section 704 of the Telecommunications Act of 1996 ("the Act), codified at 47 U.S.C. section 332(c)(7). (10) This subsection of the Act prescribes limitations on the authority of local governments in considering zoning permits for wireless tower siting applications and includes a number of preemptions. (11) When first enacted, these preemptions redefined federal- state relations with regard to wireless tower siting. Congress's balancing of federal and state values resulted in a dynamic preemption scheme that affords neither the FCC nor local zoning boards unilateral authority over tower placement. (12) Since the passage of the Act, such balancing has coincided with the explosive growth of cellular wireless services, both voice and data. (13) Consumer adoption of new wireless technologies has spurred breakneck innovation in devices and the deployment of technical standards that support ever-increasing demands on wireless bandwidth. (14) Non-uniform rules increase regulatory uncertainty and increase investment costs for wireless carriers, leading to slower wireless build-out and patchy network coverage. (15)

Section 332(c)(7)(B)(i)(II) of the Act ("the Effective Prohibition Preemption" or "the Preemption"), in particular, has caused a great deal of litigation since the Act was passed seventeen years ago. The Preemption provides that "the regulation of the placement, construction, and modification of personal wireless facilities by any state or local government or instrumentality thereof ... shall not prohibit or have the effect of prohibiting the provision of personal wireless services." Indicative of the tension between federal and state interests discussed above, the federal circuit courts have interpreted the Effective Prohibition Preemption in a number of ways, resulting in a patchwork of inconsistent wireless tower siting rules across the nation. (17) As with other lines of cases interpreting the section 332(c)(7) preemptions, (18) the primary question before the courts is the extent to which local authorities have been preempted by the language of the statute. Some rules grant localities greater flexibility in denying wireless siting applications (19) while others promote competitiveness in the cellular sector by allowing carriers to fill significant gaps in their own coverage, irrespective of their competitors' deployments. (20)

In light of the balanced, pro-competitive policies of the 1996 Act and the dramatic changes in the wireless marketplace since the Act's adoption, the tension between local zoning prerogatives and the federal interest in reliable, ubiquitous advanced wireless networks becomes more pronounced every year. This Note reports on the current state of the circuit split over the Effective Prohibition Preemption, analyzes current FCC interpretations of the statutory text, and recommends both a statutory and administrative solution to adopt a pro-competitive standard for wireless tower siting. Part II describes the development of two circuit splits over the meaning of the Effective Prohibition Preemption and the current state of those splits. In Part III, this Note analyses the Preemption as a valid exercise of Congress's authority and examines the deference owed to the Commission in light of the Supreme Court's recent decision in City of Arlington v. Federal Communications Commission. This Part concludes that the Second, Third, and Fourth Circuits have failed to give the Commission the deference it is owed in its interpretation of the Preemption and that the Commission is likely owed deference under Chevron in this matter. Further, this Note observes that the Commission's 2009 Declaratory Ruling interpreting section 332(c)(7) falls short of resolving the multifaceted disputes over the Preemption, leaving zoning authorities with far too much discretion in construing the language of the statute. The Note concludes in Part IV with a proposed statutory amendment that would make explicit the competition-enhancing purposes of the Act. Alternatively, this Note recommends that the Commission supplement its 2009 Declaratory Ruling to resolve the remaining ambiguities and circuit splits not originally addressed in that order.

2. BACKGROUND

   1. History of the Effective Prohibition Preemption

      In our system of government, federal law necessarily takes precedence over conflicting state or local laws. (21) Congress may preempt inherent state authority in a number of ways, (22) one of which occurs when federal law directly conflicts with state law. (23) Constitutionally, local zoning authorities retain their power to regulate construction through the delegation of a state's police powers to protect the public health, safety, and morality of its citizenry. (24) The great challenge for students of federal-state relations is in determining the extent of Congress's pronouncements, few of which are entirely lacking in ambiguity.

      In passing the Act, Congress generally preserved the power of state and local governments over wireless siting decisions, but also provided for preempting such power when it conflicted with the Act's policy goals. (25) Before the Act, Congress had placed no restrictions on state and local authority to regulate the placement of wireless towers. (26) Yet, pursuant to the legislature's stated goal of increasing competition in the telecommunications sector, (27) Congress found it prudent to limit the ability of local authorities to stifle competition through heavy-handed zoning regulation. (28) Originally, the House of Representatives proposed to give the FCC direct power over the zoning of wireless towers. (29) The House proposal would have fundamentally altered the landscape of state and federal relations in the wireless telecommunications sector by vesting decisionmaking power over fundamentally local issues in a federal body. In conference, however, the House's wholesale preemption of local zoning authority was deemed too extreme a measure, and the conferees opted to "preserve[] the authority of state and local governments over zoning and land use matters except in the limited circumstances set forth in [the statute]." (30) Rather than completely upend the balance of state and federal power, the enacted text curbed local authority at the edges while preserving local discretion in tower...