The New Jersey Supreme Court's Treatment of the Wireless Communications Industry Pursuant to New Jersey Municipal Land Use Law and the Telecommunications Act of 1996

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I. INTRODUCTION

"Should we force science down the throats of those who have no taste for it? Is it our duty to drag them kicking and screaming into the twenty-first century? I am afraid that it is."(1)

In many ways, we are in the midst of a communications revolution. The past decade has seen communications technologies advance by leaps and bounds. Advanced satellite technology and the Internet are only two examples of the technologies that increasingly make our world smaller by facilitating seamless and inexpensive worldwide communications. Long gone is the era that recognized the Pony Express as a significant communications breakthrough. For example, the many facets of the emerging "information superhighway" now connect people beyond their wildest expectations, facilitating human relationships that would not have existed otherwise.

Paralleling the riders of the information superhighway are an ever growing number of wireless communication users, who increasingly rely on services such as cellular phones. Wireless communication service is a technological sub-category facilitating the exchange of information, coupling the massive information exchange conducted over the internet.

Anyone living in the United States as the millenium closes must recognize the widespread reliance on, and use of, wireless telephones. Wireless phones have made their way into virtually every conceivable daily routine. Consider the number of sidewalk strollers gabbing away, backseat business deals, stranded motorists saved, teenagers' social arrangements -- all conducted over wireless telephones. These common sights indicate growing passion for and social dependence on wireless telephone services and the associated benefits of immediate communication.

However, as wireless service providers work to meet the ever-growing user demand, they struggle to develop the facilities needed to meet that demand. Specifically, wireless service providers require signal transmission facilities, normally housed on constructed towers. As the total number of subscribers increases, so must the number of strategically located towers. Construction of these towers has generated heated disputes as wireless service providers, seeking optimal locations for these facilities, frequently encounter opposition from local residents. This Note examines various aspects of these disputes.

Congress attempted to address the rising tide of disputes between wireless service providers and local authorities by enacting the Mobile Services provision of the Telecommunications Act of 1996 ("the Act").(2) In part, the Act calls for the deregulation of the wireless industry in order to facilitate the rapid expansion of its services through increased competition.(3) Although the Act specifically provides guidance for the siting of wireless facilities, disputes between providers and local authorities continue.

In the wake of the Act, federal and state courts have attempted to resolve these disputes as they relate to siting issues and congressionally mandated deregulation.(4) In large part, courts recognize the spirit of deregulation imposed by the Act, while recognizing that the Act simultaneously provides for the preservation of local authority.

The New Jersey Supreme Court had the opportunity to consider several siting disputes in the summers of 1998 and 1999.(5) The court resolved these disputes according to the mandates of the Act and New Jersey Municipal Land Use Law.(6) In this context, the court produced a series of decisions that preserve the rights of local authorities to control land use matters, while simultaneously heeding the deregulatory call of the Act. This Note focuses on these growing disputes and how courts, specifically the New Jersey Supreme Court, are addressing them.

Part II of the Note describes the emergence of the wireless communication industry and the types of disputes it has generated. …