Untangling the Circuit Splits RegardingCell Tower Siting Policy and 47 U.S.C.§ 332(c)(7): When Is a Denial of OneEffectively a Prohibition on All?

Table of ContentsI. Introduction 1982II. Background Law 1985A. Collective Action Problems, Not-in-My-Back-Yard, and Cell Phone Towers 1985B. Telecommunications Act of 1996 and 47 U.S.C. § 332(c)(7) 1988III. Decisions and Circuit Splits 1995A. First Split: Can a Single Denial Effectively Prohibit Cell Phone Towers? 19951. The Fourth Circuit's Approach: A Blanket Ban on (Only) Blanket Bans 19952. Everyone Else's Approach: A Single Denial Can Constitute an Effective Prohibition 1998B. Second Split: How Significant of a Gap? 19991. The One-Provider Rule 20002. The Own-Coverage Rule 2001C. Third Split: How to Identify FeasibleAlternatives? 20031. The No-Alternative Rule 20042. The Least-Intrusive Rule 2004D. The Effect of the FCC Ruling on the Circuit Splits 2005IV. Analysis, Critique, and Recommendations 2008A. First Split: Fourth Circuit vs. the Rest 2009B. The Second Split: One-Provider Rule vs. Own-Coverage Rule 2013C. Third Split: No-Alter native Rule vs. Least-Intrusive Rule 2018V. Conclusion 2023I. IntroductionEveryone wants to have cell phone reception wherever they go. Whether it is to make a call, send a text, receive an email, or browse the Internet, our appetite for constant connectivity seems insatiable. Of course, cell phone reception is not a natural phenomenon that just springs up by itself, but instead requires a vast array of antennae and towers, sometimes as dense as one for every ten square miles.1 While these towers make this ubiquitous and pervasive technology possible, the placement of these towers is often a controversial matter, particularly in residential communities with regulatory zoning authority over such matters.2 Thus, it seems that everyone wants to have cell phone reception but no one wants cell phone towers. With the passage of the Telecommunications Act of 19963 (TCA or the Act), Congress attempted to resolve this inherent tension with 47 U.S.C. § 332(c)(7),4 which, in part, provides that local zoning authorities "shall not prohibit or have the effect of prohibiting" personal wireless facilities, including towers.5 This statutory provision prohibits localities from instituting blanket bans on all cell phone towers-obviously-but also prohibits effective, de facto bans. The trouble, however, is that the courts do not agree on just what that actually means.The circuits have split on three different issues surrounding the interpretation of this clause, subsection (B)(i)(II). The first circuit split is the threshold issue: whether a single denial of a cell tower permit can indicate an underlying policy that is an effective prohibition. Taking the narrowest reading of subsection (B)(i)(II), the Fourth Circuit has said that this provision only applies to blanket bans and can never be applied to an individual zoning denial.6 However, every other circuit that has addressed this question has ruled that, under the right conditions, a single denial can be indicative of an effective ban on all cell phone towers.7 The question, then, shifts to identifying those right conditions. A general two-pronged analysis has emerged among the circuits outside of the Fourth. First, the cell phone company needs to show a significant gap in coverage that the proposed tower can remedy. Second, the court will look into the feasibility of other alternative tower sites. If there is a need for the tower, and the most feasible location is rejected by the locality, most circuits (outside of the Fourth, of course) would consider this an effective prohibition.8The next two circuit splits revolve around this two-pronged analysis. The second circuit split involves the interpretation of "significant gap." The Second and Third Circuits have ruled that there is no significant gap in coverage if at least one provider can serve the area with existing facilities (one-provider rule). …