Comments about this article should be sent to mttlr@umich.edu.
{1} As the wireless telecommunications revolution
has expanded, so has the demand for wireless communications facilities.[1]
The number of cellular subscribers in the U.S. has exploded in the past
fifteen years from, zero to a current level of over 25 million.[2]
In order to keep up with the demand for service, cellular providers have
installed some 22,000 radio transmission sites nationwide during the past
15 years.[3]
Increasing demand for telecommunications services will require another
100,000 antennae installations in the coming years.[4]
{2} The reason that increased consumer demand requires
a corresponding increase in the number of cellular transmission sites is
simple. A cellular network is much like a honeycomb. As a cellular user
travels from one area to another, the transmission of a telephone call
is shifted from one transmission site to the next. As demand increases,
the area over which the site can effectively transmit shrinks, causing
gaps between the sites, or gaps in the "honeycomb." In order to fill these
gaps, cellular service providers must build additional sites to accommodate
the increased demand without eroding the quality of service.
{3} Across the U.S., this wireless telecommunications
revolution has encountered significant resistance at the grassroots level.[5]
Although consumers enjoy the flexible advantages of mobile communications,
they also express a "not in my backyard" attitude towards the infrastuctural
requirements associated with cellular telephone service. For example, in
many localities, tower construction is bogged down in a quagmire of community
complaints and politically motivated governmental reviews. Thus, cellular
providers are saddled with increasing demands of customers and federal
licenses that require the cellular company to provide adequate service[6]
in the face of increasing opposition to telecommunications siting.
{4} The Telecommunications Act of 1996, signed into
law by President Clinton in February, addresses, among many other important
subjects, some of the technical problems that have arisen from the increasing
popularity of mobile communications. This article will provide an overview
of the Act and will focus specifically on the protections afforded a telecommunications
provider in § 704 of the Act.
{5} On February 8, 1996, President Clinton signed
into law the Telecommunications Act of 1996. The Telecommunications Act
of 1996 ("Telecommunications Act" or "Act") is "expansive legislation designed
primarily to increase competition in the telecommunications industry."[7]
The legislative history of the Act evidences this competitive objective:
"[t]he managers on the part of the House and Senate [intend] . . . to provide
for a pro-competitive, de-regulatory, national policy framework designed
to accelerate rapidly private sector deployment of advanced telecommunications
and information technologies and services to all Americans by opening all
telecommunications markets to competition . . . ."[8]
In fact, the House Report articulates that the "enormous benefits to American
businesses and consumers from lifting the shackles of monopoly regulation
will almost certainly earn the [Telecommunications Act] the distinction
of being the most deregulatory bill in history."[9]
III. Section 704 of the Act: Protections Afforded the Provider in the Telecommunications Facility Siting Context
{6} When attempting to locate a wireless telephone
communications facility, such as a cellular transmission tower, a service
provider typically has to apply for and receive either a permit to construct
the tower or a rezoning of the land at issue to allow for such construction.
Section 704 of the Act, to be codified at 47 U.S.C. § 332(c), provides
certain statutory protections to an applicant who applies for such a permit
or rezoning, provided the application involves the siting of a personal
wireless service facility such as a cellular tower.[10]
These protections, of course, are in addition to the standard protections
afforded by equal protection, due process, and applicable state law doctrines
such as mandamus.[11]
{7} Without completely preempting the authority of local governments to make decisions regarding the placement of wireless communications facilities,[12] the Act provides five separate and substantial protections for the telecommunications facility applicant in the amended 47 U.S.C. § 332 (entitled National Wireless Telecommunications Siting Policy).[13] Section 332 provides that:
(A) the regulation of placement, construction, and modification of personal wireless services facilities by any state or local government shall not unreasonably discriminate among providers of functionally equivalent services;
(B) the regulation of the placement, construction, and modification of personal wireless service facilities by any state or local government shall not prohibit or have the effect of prohibiting the provision of personal wireless services;
(C) once an applicant files a request for authorization to place, construct, or modify a personal wireless service facility, the governmental entity shall act on the application "within a reasonable period of time after the request is duly filed";
(D) no state or local governmental entity may regulate the placement, construction, or modification of personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such emissions comply with FCC regulations; and
(E) any decision by a state or local governmental entity to deny an application to place, construct, or modify a personal wireless service facility shall be in writing and supported by substantial evidence contained in a written record.[14]
The application of these protections is, of course, dependent upon the
context in which they are applied.
A. Governmental Action Shall Not Discriminate
{8} The Act provides that the regulation of the
placement, construction, and modification of a telecommunications facility
shall not unreasonably discriminate among providers of functionally equivalent
services.[15]
The term "functionally equivalent services" refers only to services that
directly compete against one another.[16]
A governmental authority is prohibited from decisions that favor one telecommunications
competitor over another, while it is allowed some flexibility to treat
differently facilities that create different visual, aesthetic, or safety
effect, at least to the extent permitted under generally applicable zoning
requirements.[17]
For example, the Act does not contemplate that if a cellular tower is permitted
in a commercial district, a tower of the same size and structure must also
be allowed in a residential district.[18]
Accordingly, the articulated intent of this specific protection is to prohibit
a land use decision or series of land use decisions that would decrease
or deter competition in the telecommunications industry and thereby frustrate
the purpose of the Act.
{9} Under 47 U.S.C. § 332(7)(B)(i)(II), governmental
policies that explicitly or effectively ban personal wireless services
or facilities violate of the Act, and governmental entities must treat
each application to place or construct a facility independently.[19]
Although a state or local government may deny an application based on stated
objective criteria, the criteria upon which the denial is based cannot
have the effect of banning telecommunications facilities, nor will a pattern
of unsubstantiated denials be tolerated under the Act.
{10} Interestingly, in Spring Spectrum, L.P.
v. City of Medina, a plaintiff/appellant cellular provider filed suit
under the Act claiming that a six-month moratorium on the issuance of permits
for wireless communications facilities enacted by the defendant/appellee
city violated subsection (B)(i)(II) of the Act because the ordinance's
effect was prohibitory.[20]
Because the moratorium was temporary in nature, however, the U.S. District
Court for the Western District of Washington held that the moratorium was
"not a prohibition on wireless facilities, nor does it have a prohibitory
effect. It is, rather, a short-term suspension of permit-issuing while
the City gathers information and processes applications. Nothing in the
record suggests that this is other than a necessary and bona fide
effort to act carefully in a field with rapidly evolving technology. Nothing
in the moratorium would prevent Sprint's application, or anyone else's,
from being granted."[21]
{11} Although the Medina Court made it clear
that temporarily suspending the granting of permits for telecommunications
facilities does not violate the Act if it is of reasonable duration (six
months), the Court suggested that if all applications would have been denied
during this six-month period, the moratorium would have violated the Act.[22]
Of course, any extension of the moratorium might also be violative of the
Act, constituting an unreasonable delay in processing the application under
subsection (B)(ii).
{12} Subsection (B)(ii) prevents a governmental
unit from sitting on, or refusing to rule on an application to place or
construct wireless service facilities.[23]
Under this requirement, the governmental entity must respond to the application
within a reasonable time frame, "taking into account the nature and scope
of each request."[24]
If the application involves a permitting procedure, a public hearing, or
comment process, the "reasonable period of time" requirement is satisfied
if the period for review of the application is the usual period under the
applicable ordinance or statutory scheme.[25]
It is not the intent of this provision to give preferential treatment to
the wireless communications industry in the processing of requests, or
to subject their requests to anything other than the generally applicable
time frame for ruling on applications.[26]
Thus, a governmental entity need not rule more quickly than it would for
an applicant in a non-telecommunications context.
{13} In City of Medina, the plaintiff/appellant
challenged the city's six-month moratorium on the issuance of permits for
wireless communications facilities, alleging a violation of the "reasonable
time" requirement.[27]
Because the city's moratorium did significantly prolong the approval process
for a special use permit, and because the moratorium applied only to "wireless
communications facilities"[28]
, plaintiff/appellant seemed to have a strong claim that a violation of
subsection (B)(ii) had occurred.[29]
{14} The District Court for the Western District of Washington, however, held to the contrary:
[t]here is nothing to suggest that Congress, by requiring action "within a reasonable period of time," intended to force local government procedures onto a rigid timetable where the circumstances call for study, deliberation and decision-making among competing applicants. The City is seeking to determine, among other things, whether tall antenna towers are still necessary for the purpose at hand. It is entitled to find that out. The "generally applicable time frames" for zoning decisions, in Washington, may include reasonable moratoria adopted in compliance with state law. To hold otherwise would afford telecommunications applicants the "preferential treatment" that Congress sought to avoid. Medina's moratorium, coupled with its ongoing investigation and its processing of applications, is consistent with this part of the [Act].[30]
{15} In so holding, the Medina court relied
heavily on a statement within the city's moratorium indicating that the
purpose of the moratorium was to study the Telecommunications Act, and
the city's ability to regulate wireless communications facilities in light
of the Act.[31]
The court, therefore, left open the question as to what delays will be
considered unreasonable under the Act.
{16} From an applicant's perspective, the key to
enforcing this requirement, codified in subsection (B)(iv), is to provide
the governmental decision-maker with evidence (field tests, engineering,
specifications, etc.) demonstrating emissions from the protected facility
are within FCC limits. This evidence must be provided, of course, prior
to any decision on the application in question. The protection of subsection
(B)(iv) is applicable once these tasks have been accomplished by the communication
provider.
{17} As written, the purpose of the requirement
is to prevent telecommunications siting decisions from being based upon
unscientific or irrational fears that emissions from telecommunications
sites may cause undesirable health effects. In a surprising number of public
hearings on the issue of cellular siting, individuals appear and complain
of allegedly harmful health effects, although the authors know of no studies
substantiating such claims.[32]
{18} The protection that arguably has the most
significant impact upon the telecommunications industry is the "substantial
evidence" standard, which gives the telecommunications provider valuable
protection in the facilities siting context.[33]
The terms "in writing" and "contained in a written record" are somewhat
vague, but at the very least they require some record upon which the decision
to deny an application could be based.[34]
As set forth in the legislative history of the Act, the "substantial evidence"
standard set forth in subsection(B)(iii) "is the traditional standard used
for judicial review of agency actions."[35]
Substantial evidence, as used in this context, means "more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."[36]
{19} In applying the substantial evidence standard,
a court should not a merely rubber stamp a governmental entity's denial
of an application. A court is in fact obligated to ensure that the denial
is supported by substantial evidence: "the [state or local government denying
the application] cannot rest its conclusions on a scintilla of evidence
or even on any amount of evidence that is less than substantial. Instead,
the [denial of an application] can be enforced only if [the court] find[s]
in the record 'such relevant evidence as a reasonable mind might accept
as adequate to support the conclusion."[37]
Although a reviewing court is not free to substitute entirely its judgment
for that of the governmental entity, it must overturn the denial of an
application "under the substantial evidence test if it 'cannot conscientiously
find that the evidence supporting that decision is substantial, when viewed
in the light that the record in its entirety furnishes, including the body
of evidence opposed to the denial.'"[38]
{20} The stringent substantial evidence standard
set forth in Section 704 of the Telecommunications Act must be distinguished
from the much more lenient "arbitrary and capricious" standard set forth
in the Administrative Procedure Act which also provides for judicial review
of agency action.[39]
The substantial evidence test requires the court to "take a harder look
at [agency] action than [it] would if [the court] were reviewing the action
under the more deferential arbitrary and capricious standard applicable
to agencies governed by the Administrative Procedure Act."[40]
{21} Another factor which may affect the level
of scrutiny that the reviewing court will apply to an application to place
or construct a wireless communications facility is the type of decision
rendered by the state or local government -- i.e., whether the denial is
legislative, or whether it is administrative/quasi-judicial in nature.
Determining whether governmental action is legislative or administrative/quasi-judicial
turns on whether the governmental act involves policy-making or constitutes
mere administrative application of existing policies.[41]
If the governmental act involves policy-making, it is more likely legislative;
if the act involves administrative application of existing policies, the
decision is more likely quasi-judicial or administrative in nature.[42]
Additionally, if the facts utilized by the government in making a determination
are specific, rather than general, the decision is more likely administrative
or quasi-judicial. This is also true if the decision impacts specific individuals
rather than the general population.[43]
{22} If the court determines that the governmental
action in question is an administrative or quasi-judicial permitting decision,
the court must conduct a more stringent analysis of the governmental denial
than it would in the case of a decision involving legislative re-zoning.
Courts are more reluctant to overturn local land use decisions by governmental
entities when the decisions are legislative in nature. As stated by the
Supreme Court in New Orleans v. Dukes, 427 U.S. 297 (1976), "the
judiciary may not sit as a super-legislature to judge the wisdom or desirability
of legislative policy determinations made in areas that neither affect
governmental rights nor proceed along suspect lines."[44]
It remains to be seen, however, what level of scrutiny will be applied
to a legislative zoning decision in the face of the stringent substantial
evidence standard prescribed by the Act.
IV. Filing Suit: § 332(C)(7)(B)(V) of the Act Authorizes a Direct Appeal From the Decision of a State or Local Government
{23} Subsection (B)(v) states, in pertinent part, as follows:
Any person adversely affected by any final action or failure to act by state or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within thirty days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis.[45]
{24} Although the Act describes the action to be
filed by a jilted applicant very generically, the legislative history of
the Act makes clear that the action should be couched in the terms of an
appeal.[46]
Given the fact that the action is an appeal, the court, in reviewing the
denial of the application, is limited to the evidence and argument presented
to the state or local government below. Efforts to bolster the position
of either the communications provider or the government subsequent to the
denial of the application will be futile.[47]
It is therefore imperative that the communications provider present the
entirety of its evidence and argument during the application process below.
Like the appeal of a civil trial, an appeal under the Act will be decided
solely on the basis of the record below.[48]
{25} The specific language of the Act authorizes
an appeal by numerous potential claimants. The Act specifically provides
that any person adversely affected by a denial may file an appeal.[49]
The Act, therefore, contemplates suits by appellants other than the individual/entity
that filed for governmental approval of the proposed facility. For instance,
a landowner's right to receive rentals for allowing a communication facility
on his/her property may be foreclosed by a governmental denial. Such an
individual is protected by the Act.[50]
Although an interested party does not necessarily have to file the application
in question in order to seek relief under the Act, if the party wants to
ensure a successful appeal, attention to the amount and type of evidence
presented during the application process is important.
{26} The Act authorizes appeal in "a court of competent
jurisdiction." As stated in the legislative history, a court of competent
jurisdiction "may be the Federal district court in which the facilities
are located or a State court of competent jurisdiction, at the option of
the party making the appeal . . .".[51]
In determining which court is more advantageous to the potential plaintiff/appellant,
an analysis of the political climate surrounding the governmental denial
should be conducted. Telecommunications facilities are often controversial
and if local judges are elected, the desires of local voters could play
a major part in the judicial decision. Further, the potential claimant
should consider whether local courts will be deferential to the actions
of local governments with whom they may be, and often are, closely aligned.
Finally, the potential plaintiff/appellant should take into consideration
the sophistication of local judges and their ability to properly apply
federal law.
{27} The Act specifically requires that a court
hearing an appeal under its provisions "shall hear and decide such
action on an expedited basis."[52]
No matter what forum is chosen, the plaintiff/appellant should attempt
to forego any discovery period and request an immediate hearing. This request
is not unreasonable because the appeal will be decided solely on the basis
of the evidence presented below, and no discovery is necessary. Given the
Congressional mandate of an expedited hearing and decision,[53]
theplaintiff/appellant should be successful in getting a decision within
a matter of months.[54]
{28} Finally, and very importantly, the plaintiff/appellant
must determine when the appeal is ripe for consideration by the reviewing
court. In order to be appealable, the Act requires that the governmental
denial be a final action or failure to act[55]
and that the plaintiff/appellant must commence the appeal within thirty
days of such action or failure to act.[56]
As stated in the legislative history, the term "final action" means "final
administrative action at the State or local government level so that the
party can commence action under the [Act] rather than waiting for the exhaustion
of any independent State court remedy otherwise required."[57]
{29} After the plaintiff/appellant receives notice
that the application to place the communications facility has been denied,
the plaintiff/appellant must exhaust all available state and local administrative
remedies prior to filing an appeal under the Act. Once administrative relief
is exhausted, the appeal is ripe even if the plaintiff/appellant has not
utilized all available judicial remedies.[58]
A plaintiff/appellant should, therefore, analyze the applicable ordinance
or local statute governing the application to determine whether an administrative
appeal is provided. If so, the plaintiff/appellant must exhaust the administrative
remedies prior to filing suit under the Act. Once administrative remedies
have been exhausted, the plaintiff/appellant must appeal within thirty
days of a denial.
{30} BellSouth Mobility was the first case
in which a claimant successfully obtained judicial relief under Section
704 of The Telecommunications Act of 1996. Because this case of first impression
will have significant impact on future claims brought under the Act, a
brief analysis of the decision is important.
{31} In BellSouth, plaintiff/appellant BellSouth
Mobility Inc. ("BellSouth") sought to construct a cellular communications
monopole upon a designated site in Gwinnett County, Georgia.[59]
The height of the tower required that BellSouth obtain a tall structure
permit prior to construction.[60]
The county ordinance governing the issuance of tall structure permits authorized
the county to deny an application for a tall structure permit when: (1)
the proposed structure could interfere with air facilities located within
the county; (2) the structure could endanger person or property within
the county, or (3) the structure would not be compatible from an aesthetic
viewpoint with surrounding area.[61]
{32} In preparing to construct the monopole, BellSouth
leased the subject property from the owners of the site and filed their
application for a tall structure permit with the county.[62]
The application was supported by numerous evidentiary exhibits indicating
that: (1) the monopole would not interfere with navigable airspace in the
area; (2) the monopole would not endanger persons or property nearby; and
(3) the structure would be compatible from an aesthetic viewpoint with
the existing facilities.[63]
No exhibit or documentary evidence was submitted in opposition to the application.
{33} A hearing was scheduled before the county's
board of commissioners and each side presented a five-minute argument.
In opposition to the application, a representative from a surrounding neighborhood
voiced concerns that the monopole would pose a safety threat to children,
that the monopole might cause damage during a storm, and that the monopole
would be aesthetically incompatible with existing structures in the area.
BellSouth also presented a five-minute argument which was based primarily
upon the documentary evidence previously submitted in support of the application.[64]
At the conclusion of the argument, and without further discussion, the
county board of commissioners voted to deny the application.[65]
BellSouth subsequently received a letter informing it of the permit denial,
but the letter did not give any reasons therefor, nor did it specify any
evidence upon which the denial had been based.[66]
{34} Because the ordinance in question did not
authorize an administrative remedy if an application was denied, BellSouth,
along with the owners of the site upon which the monopole was to be constructed,
filed an appeal from the county's decision in the Federal District Court
in which the monopole was to be constructed.[67]
In bringing the Telecommunications Act claim, plaintiffs/appellants relied
exclusively on the requirement of 47 U.S.C. § 332(c)(7)(B)(iii) [§704(c)(7)(B)(v),
110 Stat.], mandating that any denial "shall be in writing and supported
by substantial evidence contained in a written record."[68]
Along with the appeal under the Telecommunications Act, plaintiffs/appellants
prosecuted the action under a state-law mandamus theory, arguing that the
county's board of commissioners abused its discretion in denying the permit
because the evidence clearly supported approval of the application.[69]
{35} In limiting its review to the evidence and argument presented to the county below, the court ruled as follows on plaintiffs'/appellants' "substantial evidence" claims under the Telecommunications Act:
[T]he court cannot conscientiously find that the evidence supporting the board's decision to deny the plaintiffs a tall structure permit is substantial. On the contrary, the court finds that the record evidence supports plaintiffs' application.[70]
{36} The critical issue, however, was not whether
the county had violated the Telecommunications Act, but the relief that
would be granted to plaintiffs/appellants. Fearing that remand of the application
to the county would result in an attempt by the county to bolster their
decision by hearing additional evidence from the opposition, plaintiffs/appellants
argued vehemently that the Act prohibited remand because it would frustrate
Congressional intent to provide an aggrieved party full relief on an expedited
basis.[71]
Additionally, plaintiffs/appellants argued that remanding the case to the
county would frustrate the purpose of the Act because the board of commissioners
would still be influenced by the impermissible factors that caused them
to deny the application in the first instance -- community opposition and
political pressure.
{37} The county contended that the Court should
simply remand the matter to the county and allow it to make a decision
supported by substantial evidence.[72]
The county argued that it was improper for Federal courts to usurp local
government authority by directing issuance of a permit, and that the Act
did not authorize the Court to issue such an order.
{38} The Court held as follows:
Section 704(a) of the [Telecommunications Act] does not speak to the issue of what relief a court may grant to remedy violations of the [Act]. Although it permits any person who has been adversely affected by actions that are inconsistent with its provisions to 'commence an action in any court of competent jurisdiction,' it does not specify an appropriate remedy. The [Telecommunications Act], however, does mandate that '[t]he court shall hear and decide such action on an expedited basis.' Indeed, the legislative history of the [Telecommunications Act] makes it clear that its drafters intended that 'the court to which a party appeals a decision under section 332(c)(7)(B)(v) may be the Federal district court in which the facilities are located or a State court of competent jurisdiction, at the option of the party making the appeal, and that the courts act expeditiously in deciding such cases.'
In the court's view, simply remanding the matter to the board of commissioners for their determination would frustrate the [Telecommunications Act's] intent to provide aggrieved parties full relief on an expedited basis. Therefore, defendants' abstention argument notwithstanding, the court finds that the [Telecommunications Act] vests the court with sufficient authority to grant plaintiffs' request for mandamus relief if such relief would be warranted under the circumstances.[73]
Accordingly, the BellSouth Court not only found that defendants'/appellees'
decision violated the Act because it was not based upon substantial evidence,
but also specifically ordered the county to grant the application for the
permit in question.[74]
{39} There can be no doubt that the Telecommunications
Act of 1996 will have a significant impact upon facility siting decisions
made by local governments. The requirements set forth in the Act give a
telecommunications provider protection from the sometimes mercurial temperaments
of local governments as they relate to zoning and planning. The BellSouth
decision provides additional protection because it indicates that the judiciary
should be aggressive in carrying out the articulated Congressional desire
to reduce barriers to entry and increase competition in the telecommunications
industry.