The Effective Prohibition Preemption in Modern Wireless Tower Siting

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TABLE OF CONTENTS  I.   INTRODUCTION II.  BACKGROUND      A. History of the Effective Prohibition Preemption      B. The Circuit Split on What Constitutes a Significant Gap in         Coverage         1. The Single Provider Rule         2. The Multiple Provider Rule         3. The Case-by-Case Rule      C. The Circuit Split on Filling the Significant Gap--Differing         Evidentiary Standards      D. The Current State of the Splits III. Analysis      A. Characterizing Federal Preemption of State Police Powers         Under the Effective Prohibition Preemption      B. Chevron Deference in Light of City of Arlington v. Federal         Communications Commission      C. Circuit Splits that Survive the 2009 Declaratory Ruling         1. The Fourth Circuit's Case-by-Case Rule and the 2009            Declaratory Ruling         2. Remaining Sub-Split Within the Multiple Provider            Standard on the Evidentiary Standards Necessary to            Support a Finding of Effective Prohibition IV.  RECOMMENDATIONS      A. Congressional Action--Amending Section 332(c)(7)(B)(i)(II)         to Include Explicit Consideration of Competitiveness Issues         in Preemption Analysis      B. FCC Action--Issuing a New Declaratory Ruling to Address         the Remaining Circuit Splits V. CONCLUSION 


In recent decades, rapid technological change, the growing importance of the information economy, and increased concern with local zoning values have precipitated conflict in the wireless communications sector over the placement of cellular towers. A war is being waged in federal courts, local zoning board meetings, and the halls of the Federal Communications Commission ("FCC") over the proper structure of local cellular markets and the appropriate role of local governments in the placement of wireless towers. On the one hand, state and local governments have inherent authority over the construction, placement, and appearance of buildings within their jurisdictions. (1) That authority is paired with a political loyalty to local constituencies who are primarily interested in limiting the construction of unsightly wireless towers near their properties. Advocates for strong local zoning authority point to a number of benefits that flow from regulating the use of land, including: reduction in nuisance costs associated with adjacent placement of incompatible uses; (2) protection of the aesthetic character of a neighborhood; (3) and protection of public health. (4) Where construction proposals conflict with these priorities, the delegation of police powers to zoning boards generally affords them a great deal of discretion in granting or denying variance from an approved zoning plan. (5) Conflict is particularly likely in the case of wireless tower siting applications in urban and suburban areas where neighborhood character is linked, in the eyes of landowners, to the value of individual plots and to the aesthetic character of the area. (6)

Opposite these localized values are federal telecommunications policies, which seek generally to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of telecommunications technologies." (7) The creation of nationwide telecommunications networks, of which personal wireless services are an increasingly important part, often necessitates overcoming localized aesthetic values to roll out the full measure of network benefits to the national population. (8) Wireless networks require comprehensive coverage and ubiquitous facilities nationwide to satisfy consumer expectations of strong mobile signals that provide reliable, high quality service. (9)

To aid in the deployment of advanced communications services, Congress passed section 704 of the Telecommunications Act of 1996 ("the Act), codified at 47 U.S.C. section 332(c)(7). (10) This subsection of the Act prescribes limitations on the authority of local governments in considering zoning permits for wireless tower siting applications and includes a number of preemptions. …