Wednesday, August 08, 2012

Wireless Tower Construction Is Critical To Maryland's Consumers and Economy

Cell towers are a critically important input for next-generation wireless broadband services. With wireless Internet use projected to surpass wireline Internet use by 2015, tens of thousands of new towers and distributed antenna systems will need to be built each year to support rapidly rising wireless data traffic.

But in too many instances local governments deny or significantly delay permit applications for new towers. A case in point is the ongoing dispute over a Maryland county's rejection of one carrier's application to build a wireless tower. Howard County v. T-Mobile provides some important takeaways regarding the economic opportunity and other costs of blocking cell tower construction.

In February 2011 the Howard County Board of Appeals denied T-Mobile's conditional use permit to build a 100-foot concealed monopole on a church property. The Board concluded that the wireless carrier failed to demonstrate it made a "diligent effort" to locate its proposed facility on a government structure. The Board also concluded T-Mobile failed to demonstrate that "[t]he ingress and egress drives will provide safe access with adequate sight distance."

In March the U.S. District Court for the District of Maryland upheld the Board's ruling. But what appear to be uncontested facts call the Board's ruling into question. First, T-Mobile did contact a local public school facilities management office. The carrier's inquiry was apparently turned down via telephone and later confirmed in writing. Since T-Mobile's inquiry did not follow the school district's formal written policy, the Board rationalized that its effort was not diligent.

Second, the District Court concluded that "[a] review of the record reflects that it certainly contains substantial evidence that the sight distance is adequate." The proposed site for the tower was on a church property in possession of a special zoning exception since 1980. A County Technical Staff Report concluded that zoning regulations relating to sight distance were "inapplicable." A County Hearing Examiner similarly found that the driveway appeared to offer adequate sight stance. And according to the District Court's opinion, "the Board acknowledged that adequate sight distance existed, but it reiterated its position that there was no evidence from which it could [be] concluded that access to the proposed facility was safe."

The District Court therefore upheld the Board's decision by applying a highly deferential standard of review. Such a highly deferential standard allows local governments to reject wireless facility permit applications for shallow reasons and in the face of facts supporting approval.

The results in this case include costly delays in litigating the dispute and in deploying infrastructure for improving wireless service for the area. Now, more than two-and-a-half years after T-Mobile first filed its permit application, the case is going before the U.S. Court of Appeals for the 4th Circuit.

Appealing this ruling is worthwhile simply on account of the weak factual support for the Board's position. The 4th Circuit might find that the Board's rationale is too thin to support its rejection of T-Mobiles permit application.

There is also a question as to whether Maryland law requires closer judicial scrutiny of local government rulings such as the one by the Howard County Board. T-Mobile has argued that Maryland case precedents call for an independent judicial review of the record that considers the merits of the permit application itself. The 4th Circuit might clarify whether a less deferential standard is called for in wireless facility siting cases in Maryland than in Virginia.

It's only fair to point out that Howard County has approved a number of other wireless towers. And the 4th Circuit might decide that the discretion of local government bodies in administering zoning regulations controls the case. But whatever the 4th Circuit decides, there are critical public policy considerations that should be kept in mind by state and local policymakers in all cases involving wireless tower siting.

Administrative delays and tower siting denials that lack solid factual support invite lengthy and costly lawsuits.

Lack of necessary wireless infrastructures means that consumers in local communities lose opportunities for enjoying improved services and additional choices.

Economic opportunity costs are also a factor for underserved communities where lack of wireless facilities inhibits service. States and local communities must have infrastructure in place to support innovation and attract business enterprise, lest neighboring states and communities offer more attractive alternatives. These considerations are critical for states like Maryland that face interstate competition with neighbors, like Virginia, that rate high in hospitality to business entrepreneurship.

Whether in Maryland or any of the other 49 states, public officials should play a constructive role in promoting next-generation wireless deployment rather than an obstructive role. Local governments should be proactive in coordinating wireless facility placement on government property. They should ensure that local government policies regarding public rights-of-way or any comprehensive land use plans factor future technology infrastructure demands, including wireless siting facilities. Where possible they should liaison with other local government authorities inside their jurisdiction to further such placement. Inter-governmental coordination and cooperation with wireless service providers can speed up the process, avoid costs of disputes, and reduce or avoid public opposition.

State and local government officials should pursue policies to accommodate the infrastructure needs for next-generation wireless broadband networks. Doing so will put local consumers and their local economies in the best position to take advantage of the long-term opportunities for economic growth offered by next-generation wireless networks.