Not in My Backyard: The Siting of Wireless Communications Facilities

It shall be the policy of the United States to encourage the provision of new technologies and services to the public.(1) I. INTRODUCTION Wireless service providers are not unlike their more traditional counterparts in their need for an infrastructure from which to provide service. In addition to traditional landlines, wireless communications facilities (WCFs) require numerous strategically placed transmission antennae, which are necessary to send and receive signals. New wireless technology has created new tower construction, which was valued at $1.6 billion in 1996 and is expected to peak in 2000 at $2.3 billion.(2) There are already over 57,000 radio transmission sites throughout the country, with an anticipated 110,000 antennae to be in place by 2002.(3) This proliferation of antennae is a function of the burgeoning demand for wireless service and new technology. The two major competing modes of wireless communications are cellular and Personal Communications Services (PCS). As demand for cellular service has outgrown the available radio spectrum used for cellular signals,(4) the wireless industry has turned to PCS, which utilizes digital technology that triples the capacity of traditional cellular systems.(5) Personal Communications Services enable "users to send and receive voice, data and video communications to and from any location."(6) However, "[a]lthough PCS offer advantages in service, performance and quality, one potential drawback is that a PCS network requires four times the number of antennas and towers to transmit signals in order to meet the same coverage as cellular services."(7) This demand for new sites caught many local zoning authorities off guard, as their antiquated zoning laws were not drafted to respond to the unique demands of PCS tower siting. This Note seeks first to establish the significance of a fully deployed wireless infrastructure and its potential impact. Part III offers a comprehensive analysis of the relevant federal regulation of tower siting, including recent judicial action. Drawing on existing case law, this Part makes recommendations for the enforcement of the particular provisions of the Telecommunications Act of 1996 (1996 Act or Act). Part IV then discusses the role of state and local governments, emphasizing the need for cooperation and education among all relevant participants. II. THE CURRENT STATE OF AFFAIRS Telephony is at the forefront of the dynamic communications revolution. "The mobile telephone, scourge of the commuter train, the beach and the ski slopes, has been the mainstay of the telecommunications revolution over the past five years."(8) The significance of the mobile telephone cannot be understated, and while its impact on the developing world will no doubt be revolutionary, it also carries special significance for local communities as it offers an alternative to the local near-monopoly.(9) It is this ability of wireless service to serve as a catalyst in opening local telephone markets that offers an opportunity for profound change. The mobile telephone, once available only to the affluent, continues to become more relevant to the life of the average American, and the reasons are simple. One of the most promising developments in communications technology is the ability of the mobile phone to act as a substitute to a traditional landline. According to Federal Communications Commission Chairman William Kennard: "[T]he overarching goal should be--first and foremost--doing everything we can to foster an environment wherein wireless can become a full-fledged substitute for wireline service."(10) A shortage of competition is largely to blame for the fact that the cost of a wired call is still generally less than that of a call made from a mobile phone.(11) "`The capital costs for cellular are lower than for wired,'"(12) and the available evidence supports the cost-reducing effect of competition. …