Wireless facilities are a towering problem: how can local zoning boards make the call without violating section 704 of the Telecommunications Act of 1996?

• Author: O'Neill, Kevin M.

While driving to work, a middle-aged executive conducts an important business discussion on his cellular phone. Suddenly, his conversation fades out as he approaches a "black hole" in the phone's cellular network.(1) Frustrated, the commuter wonders when the cellular phone company will fix the problem of poor reception in his area. Later that night, the executive learns about a neighborhood meeting to discuss opposition to a local cellular phone company's plan to build a 200-foot monopole in the neighborhood.(2) Worried that the unsightly view of the tower from his front lawn will have a dramatic downward effect on his property value and that radiation emitted by the facility could be hazardous to his family's health, the citizen vows to prevent the antenna from being placed in his neighborhood.

Wireless facilities, such as a cellular antenna tower or Personal Communication Systems (PCS) monopole, face the classic LULU consumer conundrum:(3) consumers want their cellular, PCS, or Specialized Mobile Radio (SMR) service on demand, and at an affordable price,(4) but few consumers want to allow the service's physical infrastructure to infiltrate their neighborhood.(5) Localities and wireless providers have battled over the placement, height, appearance, and potential negative effects of wireless facilities in the community ever since wireless services first arrived on the market.(6) The Federal Communications Commission (FCC), as the authority responsible for granting wireless licenses, approving the initially proposed facilities, and monitoring the growth of the industry, also has been an integral player in the debate over siting these facilities.? Congress intended section 704 of the Telecommunications Act of 1996 ("Act") to speed the approval and construction of wireless facilities by limiting the means by which local zoning boards(8) could oppose; these facilities.(9) Unfortunately, section 704 apparently slowed that process as localities imposed zoning moratoriums and other administrative delays to prevent placement. Furthermore, localities failed to implement the Act's procedural requirements that zoning decisions meet certain evidentiary standards and be made within a reasonable period of time. The ignorance and delaying tactics of zoning boards have prompted communications companies ("wireless providers") to exercise their right to litigate these disputes in federal district court.(10)

Wireless providers have been successful in winning judicial approval of their projects for three main reasons.(11) First, despite language in the Act requiring a zoning board to act within a "reasonable period of time,"(12) some localities deliberately and illegally use moratoriums and other procedural delays to avoid making decisions on tower applications.(13) Second, some zoning boards fail to justify denial of applications for wireless facilities with "substantial evidence" as required by the Act.(14) Third, zoning boards improperly use health and aesthetic concerns as a rationale for denying wireless providers' applications.(15)

This Note sheds light on the effects of section 704, specifically addressing how zoning boards and courts have interpreted some of section 704's terms. The first section provides background information on three related issues: (1) the explosive growth of wireless communications; (2) the basic components of the local zoning process; and (3) the background and substance of the provisions in the Act that directly affect wireless facility locations. The second section explores the courts' interpretation of a "reasonable period of time" as it applies to a locality's time frame for making a zoning decision on an application for a wireless facility. The second section of this Note also discusses the legality of moratoriums and other procedural delays communities use to slow the approval process. The third section examines the circumstances under which a denial violates the Act by discriminating between providers offering established services and those offering new, enhanced services. The fourth section analyzes existing judicial decisions, pointing out patterns and suggesting guidelines for defining the Act's requirement that a locality use "substantial evidence" to justify its denial of a wireless facility application.(16) The fifth section addresses how and when the zoning board legitimately can use health, safety, and aesthetic concerns in its decisionmaking process. The sixth section suggests a set of criteria that localities and wireless providers can use in the application and approval process to remain in compliance with the Act's zoning requirements.(17)

Some commentators believe that lawyers and judges drive the wireless communication industry's development just as much as corporate executives, local zoning boards, and engineers.(18) This Note argues that the judicial system should place these development decisions back in the hands of the localities and the providers.

AN OVERVIEW OF THE WIRELESS COMMUNICATIONS INDUSTRY, THE TELECOMMUNICATIONS ACT OF 1996, AND APPLICABLE ZONING LAW

The wireless communications industry in America has consistently grown at a rate that has outpaced the wildest predictions of economists and industry leaders. The FCC granted its first licenses for cellular service in 1983 with little idea of what potential existed for the industry.(19) One research group once predicted a mere 900,000 wireless users by the year 2000.(20) In fact, as of 1996 there were an estimated 40 million wireless users and an estimated 22,000 wireless facilities in the United States.(21) Some analysts predict that, by the year 2001, twenty percent of all phone calls in America will be made or received by wireless users.(22)

A sharp downturn in cost has driven the interest in wireless communications.(23) From 1985 until 1994, the price of wireless communications fell an astounding thirty-six percent while the wireless market share skyrocketed.(24) Wireless communications paired advanced technology with competition to create a high-quality, low-price product that continues to spark high levels of consumer demand. The economic structure and success of wireless communications is a model for all emerging technologies, as its success proves market solutions are superior to government regulation for emerging technologies.(25)

The explosive growth of wireless communications means the system's infrastructure must keep pace with consumer demand.(26) The success of the wireless industry depends on the construction of new facilities and enhanced intra-market competition.(27) Multiple competitors in a market keep prices low without the heavy monitoring and regulatory costs associated with state or federal supervision.(28)

The costs of attracting and retaining new customers to wireless technology remains high and severely impacts short-range profits for wireless providers.(29) In 1995, the average cellular company estimated that it spent seven hundred dollars in facilities investment and six hundred twenty dollars in marketing to attract each new customer, who will, on average, generate a mere fifty-nine dollars a month in revenue.(30) When wireless providers seek judicial relief to remedy illegal denials of their zoning applications, transactions costs continue to rise. The consumer eventually bears the burden of all these transactions costs by paying taxes to support the zoning board(31) and the judiciary, and then paying again to enjoy the benefits of wireless service. Minimizing the transaction costs involved in approving these facilities therefore should minimize the additional costs imposed on consumers.

Objections to Wireless Facilities

Citizens who oppose the location of wireless facilities near their homes generally have several common objections. First, they are concerned about the environmental and health impacts such facilities might have on local citizens.(32) Second, citizens worry that these facilities will ruin the aesthetic value of their neighborhoods and reduce the property values of local homes and businesses.(33) Third, many citizens fail to see the difference between basic cellular service and advanced digital services such as PCS.(34) The lack of familiarity with cellular service technology leads citizens to oppose the buildout of networks for advanced services when cellular service already exists in their area.(35) These factors combine to mobilize citizens to speak out against wireless facilities proposed in their communities.(36)

Cellular Allocation

In 1995, the wireless industry estimated that it would need 115,000 wireless facilities by the year 2000 to accommodate subscriber demands for service.(37) More customers require more facilities to handle the greater volume of calls, therefore wireless providers must become less selective about the placement of their facilities, thus accelerating the pace of confrontation with localities.(38) Once the FCC grants the original licenses for wireless providers in a market, local zoning boards and wireless providers make most of the relevant placement decisions together.(39) Initially, the FCC licensed wireless providers on a first-come, first-served basis;(40) therefore, it is possible that the first entrants into a market usurped a majority of the ideal sites for wireless facilities. Collocation, therefore, makes a great deal of sense. Collocation involves using the same physical location for multiple wireless facilities by placing the antennas of several different wireless providers on one building, using one location for an antenna farm with antennas owned by several different wireless providers, or placing small transmitters on the same monopole or antenna tower.(41) As a policy decision, collocation helps new entrants compete on an equal basis. Every local zoning authority confronts the collocation issue in approving wireless facility applications, and some localities require collocation wherever possible.(42)

Wireless...