Wednesday, October 17, 2012

Breaking Down Barriers to Wireless Broadband Build-Out

There is a critical need for expanding infrastructure to meet next-generation wireless traffic demand. Too often, however, local regulatory barriers slow down or stand in the way of the construction of new towers or the upgrading of old ones. Those regulatory barriers delay and drive up the costs of next-generation wireless broadband networks, keeping local economies from realizing the benefits conferred those networks.

Local regulatory barriers to wireless infrastructure build-out were the subject of my Perspectives from FSF Scholars essay, "4G Wireless Networks Need Relief from Cell Siting Barriers: Economy Would Benefit Through New Jobs and Investment." 
In that essay, I called into questions aspects of the Fourth Circuit's ruling in T-Mobile v. Fairfax County Board of Supervisors (2012) that the County Board's denial of cell tower siting permit  did not "effectively prohibit" wireless services. Nonetheless, I pointed out a positive point in the case, arising from the FCC's amicus curiae brief. The FCC rejected the idea that the Section 332(c)'s ban on "effective prohibitions" of wireless services by local governments applies only to "blanket bans" on wireless tower siting by all providers. As I wrote:
[I]n its amicus brief, the FCC reiterated that the restrictions on zoning authority contained in Section 332(c)(7)(B), apply not only to land use applications by the first wireless provider to enter the local market but to siting requests by all subsequent entrants.
A more positive overall result was reached by the Sixth Circuit in T-Mobile v. West Bloomfield (2012). In August, the Sixth Circuit ruled that a local township's denial of a wireless tower siting permit was not supported by substantial evidence and constituted an improper "effective prohibition" on wireless services. Perhaps more importantly, the Sixth Circuit ruled on two matters of first impression for that circuit, namely: (1) whether denial of a single application of a siting permit can constitute an "effective prohibition" or whether the statute only applies to "blanket bans" and (2) whether a "significant gap" in coverage for one wireless provider indicates an "effective prohibition" or whether service provided by a single wireless provider is sufficient. 
Fortunately, the Sixth Circuit rejected the "blanket ban" argument. And it concluded that a "significant gap" by a single wireless provider - combined with a "least intrusive alternative" analysis - should be used for analyzing whether an "effective prohibition" of wireless services exists in a given situation.
I've previously blogged on the importance of local governments accommodating wireless infrastructure build-out in their zoning processes. A smooth process is far preferable to litigation. But where local regulatory barriers make resort to the courts a necessity, it's good to see the Sixth Circuit opt for interpretations of Section 332(c) that are sounder as public policy, more in keeping with Congress's purposes.