You can't hear me now: the ambiguous language of the Telecommunications Act of 1996's tower siting provision.

• Author: Meersman, Benjamin L.

1. INTRODUCTION II. BACKGROUND A. Early Attempts of Federal Regulation B. The Wireless Industry C. The Telecommunications Act of 1996 D. Introducing the Circuit Splits III. ANALYSIS A. Denial of a Single Application B. The Appropriate Standard for Determining Feasible Alternative Tower Locations C. Defining a "Significant Gap" in Coverage D. Economic Impact and Financial Consequences IV. RECOMMENDATION A. A Single Denial Can Effectively Prohibit Service to a Specific Carrier B. The Adoption of the "Least Intrusive" Alternative Location Standard C. Adopting the "Significant Gap" Definition per the FCC's Declaratory Ruling D. Preemptive Solutions: Legislative Amendment or Supreme Court Interpretation V. CONCLUSION I. INTRODUCTION

   It would be a safe bet to say that anyone with a cell phone has at one time experienced poor coverage, a dropped call, or found themselves in a dead-zone (an area lacking network coverage). A variety of factors can cause these scenarios, but one such factor is a lack of a sufficiently close cellular tower. It is easy to blame a wireless carrier for failing to provide a tower in a particular geographic area, but, as this Note discusses, local governments or residents often stand in the way of a cellular provider erecting a tower needed to remedy a gap in coverage. (1)

   In an ironic twist, federal legislation aimed at creating an efficient national wireless industry is a source of numerous disputes among wireless providers and local governments. (2) Congress passed the Telecommunications Act of 1996 (TCA) to update federal regulations, which included addressing the rapidly growing wireless telephone industry. (3) However, the Act's ambiguous language, specifically within 47 U.S.C. [section] 332(c)(7)(A), led to the current federal circuit splits on multiple issues centered around different interpretations of the TCA's tower siting provision. (4)

   Despite the creation of multiple national wireless networks, hurdles remain for service providers as they continue to grow and improve their network coverage. (5) Specifically, carriers often find themselves at odds with state and local governments when trying to erect cellular towers. (6) These towers are essential for carriers to provide wireless coverage in the respective geographic areas. (7) The disputes between carriers and local governments often lead to litigation surrounding the language of the TCA, which is in stark contrast to the underlying goal of the legislation. (8) While federal circuits should strive for uniformity in interpreting the TCA, preemptive remedies to repeated litigation include a congressional amendment to the language of the TCA and a Supreme Court ruling on the issues. (9)

2. BACKGROUND

   This Part provides a brief history of the wireless communications industry and an overview of the technology employed. It begins with the early years of federal oversight and the enforcement challenges the federal government encountered. Next, this Part discusses the history of technologies employed by wireless carriers and the technology in place today. With this general understanding, the discussion moves to the passage of the TCA. Lastly, this Part introduces the circuit splits at issue.

   1. Early Attempts of Federal Regulation

      The United States Constitution's Commerce Clause provides Congress with the power to regulate interstate and foreign commerce. (10) Because broadcasting "transcends state lines and is national in its scope and importance," it is subject to the Commerce Clause and thus congressional regulation. (11) Congress' first attempt to provide legislative oversight for the radio industry was the Radio Act of 1912. (12) The Act limited available frequencies by prescribing regulations and licenses to stations with a goal of minimizing broadcast interference. (13) As the popularity of radio increased in the 1920s, several administrative problems arose as more stations sought licenses and airtime. (14) The tipping point came in United States v. Zenith, (15) where the court ruled that then-Secretary of Commerce, Herbert Hoover, overstepped the provisions of the Radio Act by bringing enforcement actions and threatening penalties--powers the Act did not expressly grant-for violators of the Act. (16)

      Because the federal government could not effectively enforce the Radio Act of 1912 following Zenith, (17) Congress enacted the Radio Act of 1927, which gave rise to the Federal Radio Commission. (18) The 1927 Act was a springboard for developing a permanent agency under the Communications Act of 1934. (19) Under the Communications Act of 1934, Congress authorized the creation of the permanent Federal Communications Commission (FCC) to regulate and oversee the nation's broadcast industry. (20) With this legislation, the drafters sought to create a flexible framework that would adapt to future technological advancements, (21) and thus permitted the FCC to employ a public interest standard when creating and amending regulations. (22) Such a standard allows the FCC to determine citizens' best interest by balancing "competing economic, technological, political and social values." (23) The Communications Act of 1934 remained in effect for more than 60 years. (24) Despite the inherent flexibility in the legislation, the Act proved inadequate to handle the rapid explosion of the wireless telecommunications industry.

   2. The Wireless Industry

      The term "cellular" in "cellular service" originated from the technology employed by carriers to implement these telecommunication systems. (25) Cellular providers create geographic "cells" in which a wireless tower and antenna sit at, or near, the center of the cell to provide radio coverage for the given area. (26) The towers and wireless antennas share the same frequency as neighboring cells, which enables a consumer using a given carrier's network to traverse cells without experiencing a disruption of service when using a wireless device. (27) The demand for a carrier's service in a given area determines the size of the cell. (28) Because a cell's design can only handle a fixed amount of network traffic, a carrier will base the cell's size on an area that it believes will not exceed the capacity of the respective tower. (29) Thus, areas with high demand, such as densely populated cities, require smaller cells and consequently more towers and antennas. (30)

      The first widely used personal wireless services (PWS) were analog systems developed for vehicular phones in 1974. (31) However, because analog systems suffer from poor transmission quality, the wireless industry stopped developing these systems in 1985 and began transitioning to digital transmission signals. (32) Digital phone services provided better clarity and up to 20 times the call capacity of analog transmissions. (33) Currently, carriers are replacing this digital technology with Personal Communication Systems (PCS) phone service. (34) While PCS permits the transmission of both voice and data signals over a network, this technology requires more advanced equipment and smaller cells to accommodate higher frequency transmissions. (35) For this reason, carriers must install additional cell towers to accommodate the greater needs of PCS coverage. (36)

      Americans were quick to adopt cell phone technology. (37) In 1984, the first year the FCC recorded the number of wireless telephone subscribers, there were approximately 92,000 subscribers. (38) Within ten years, this number soared to 24.134 million subscribers. (39) Similarly, in December 1986--the first year the FCC had data readily available for tower sites--there were 1531 cell towers. (40) Ten years later, this number jumped to 30,045 cell towers. (41)

      As cell phone usage rapidly increased and wireless carriers attempted to meet this growing demand, the patchwork of local zoning laws throughout the country coupled with a lack of federal oversight created a major hindrance to the development of national, cost-efficient wireless networks. (42) As these carriers attempted to expand their networks, they encountered the classic "not in my backyard" (NIMBY) opposition. (43) NIMBY opposition occurs when citizens of a particular geographic area want to receive the benefits of particular industry infrastructure, but do not want the physical location of such infrastructure in their immediate neighborhoods and communities. (4) 4 Reasons for the NIMBY argument include a potential devaluation of property, health and environmental concerns, and, often, the effect on aesthetic value, regardless of whether reliable data or proof exists. (45)

   3. The Telecommunications Act of 1996

      To address the growing number of conflicts between wireless carriers and local governments, as well as NIMBY objectors, the U.S. House of Representatives passed the Communications Act of 1995. (46) The House aimed to increase development while lowering costs of new telecommunication technologies by amending the Communications Act of 1934. (47) Specifically, the House believed "it is in the national interest that uniform, consistent requirements, with adequate safeguards ... be established....Such requirements ... ultimately will provide consumers with lower costs as well as with a greater range and options for such services." (48) Further, the House intended for the bill to create a rulemaking committee comprised of interested parties to develop tower-siting policy. (49) The House-Senate conference created the final version of the TCA, inserting language that prevents federal preemption of local land use decisions in most circumstances, thereby preserving the authority of local governments over land matters. (50)

      In its final form, the Telecommunications Act of 1996 included a broad sitting provision. (51) The applicable section provides that "nothing ... shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of...