Daily Development for Thursday, November 18, 1999

Daily Development for Monday, November 8, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND LAND USE; TELECOMMUNICATIONS; PREEMPTION: Second Circuit weighs in on zoning preemption under Telecommunications Act.

Sprint Spectrum, L.P. v. Town of Ontario Planning Board, 176 3d 630 (2d Cir. 1999)

In upholding the District Court decision of the Planning Board for the Town of Ontario, New York, to reject Sprint PCS's application to building three communications towers, the Court reviewed de novo the District Court's determination on a motion for summary judgment and upheld The Planning Board's determination that the three proposed sites might have a potentially significant adverse environmental impact on property values, visual impact and "cumulative impacts" of the propose facilities and possible future facilities. After a full hearing, the Board concluded that Sprint had failed to mitigate the environmental impact to the largest extent practicable and denied the application.

The court noted that despite Congress's goal, through the Telecommunications Act, of constructing a national wireless telecommunications infrastructure, Congress chose to preserve all local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities. The two principal limitations that Congress placed on local zoning authority, both at issue in the case, are that state and local regulation of personal wireless service facilities (i) shall not unreasonably discriminated among providers of functionally equivalent services and (ii) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

The court held that the prohibition on discrimination did not mean that a wireless service provider was entitled to the same access as a wire based provider. Further, even where the city's plan for Sprint might result in some gaps in Sprint's coverage, the court concluded, the city would not be viewed as discriminating against Sprint so long as Sprint was permitted to provide substantial coverage within the market area.

The court quoted from a 1998 Fourth Circuit opinion regarding the issue of discrimination between wireless carriers: "The Act specifically contemplates that some discrimination among providers of functionally equivalent services is allowed." This conclusion permits local agencies to pursue local environmental, aesthetic and planning goals by limiting the construction of towers even when there is some interference with service by the affected carrier and even when another carrier has been permitted a broader level of service. Of course, if the other carrier were not held to the same zoning standards, there might be discrimination, but that was not the case here, where the digital service provider in fact needed more towers to provide the same level of service as the existing cellular provider.

The court then turned to the second area of regulation under the Telecommunications Act - the provision of the Act that states that local regulation shall not prohibit or have the effect of prohibiting personal wireless service. The court noted that where, as here, personal wireless service is already available through an existing carrier, the zoning agency has more discretion as to other carriers. But this doesn't mean that the agency can prohibit other carriers entirely. There is, first of all, the anti-discrimination provision discussed above. But, in addition, the court noted that to give effect to the language of the Act stating that the agency's actions cannot "have the effect of prohibiting" telecommunications service, the agency cannot rest on the fact that it has already authorized one carrier to enter the market and proceed to prohibit all others. Instead, it is required to consider each application and to avoid taking actions that would result in that applicant's being unable to provide: "for profit radio communications services carried on between mobile stations or receives and land stations that (1) are connected to the national telephone network and that (2) provide wireless phones with access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services." The court continued its effort to define the limits on local government as follows: "In our view, therefore, the most compelling reading of [the Act] is that local governments may not regulate personal wireless service facilities in such a way as to prohibit remote users from reaching such facilities. In other words, local governments must allow service providers to fill gaps in the abilit of wireless telephones to have access to land lines." In the context of this case, this restriction meant that a local government may reject an application for construction of a wireless service facility in an under-served area without thereby prohibiting personal wireless services if the service gap can be closed by less intrusive means. Two towers and possibly even a single tower would allow Sprint to provide its desired coverage with only a few de minimis lapses. These lapses might occur in areas of sparse population, where few users would desire to have remote access. This result was permissible.

Comment 1: Although the court criticizes the Act for being difficult to understand, the editor proposes that the court's own language is equally opaque. The editor is guessing somewhat when he concludes that the court has stated that the local agency must generally view each provider separately and place no significant obstacles in that provider's path. The editor would welcome input from more informed readers on this point.

Comment 2: The case, as a Second Circuit opinion actually addressing directly the scope of authority for a local agency under the Telecommunications Act, appears to one of enormous economic significance. One would assume that Sprint, and other carriers, are interested in providing blanket coverage by erecting their towers now, even in areas that are sparsely populated. The cost of returning to the area and erecting more towers when population increases is significantly greater, as land rights at that time will be higher and zoning barriers even more extreme. Further, if one carrier already has its coverage in place, and a competing carrier cannot enter the marketplace with exactly equivalent service, it will have a disincentive to enter the marketplace at all. Assuming that the court really has concluded that Congress intends to give each provider a shot at providing comprehensive services, does the court's opinion really insure that service opportunities are practically available? Does the Second Circuit have this issue right?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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