You Can't Hear Me Now: The Ambiguous Language of the Telecommunications Act of 1996's Tower Siting Provision

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  I. 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)

II. 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.

A. 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. …