A Maryland county's
rejection of a wireless carrier's plan to build a cell tower on private
property and improve service coverage was the subject of a prior blog post,
"Wireless
Tower Construction Is Critical To Maryland's Consumers and Economy." It
is essential that local governments perform a more constructive role regarding
wireless infrastructure build-out that includes inter-governmental coordination
to ensure that public property is made available for new wireless facility
placement.
Growing demand for
wireless data services has created a pressing need to build new wireless towers
to accommodate surging wireless traffic flows. Local consumers and communities
stand to benefit from the economic opportunities offered by next-generation
wireless networks, including e-commerce, e-health and video applications.
There is also a
constructive role for the FCC in removing barriers to infrastructure investment
and wireless broadband deployment. The next Section 706 Broadband Progress
Report is now being
circulated at FCC. That soon-to-be released Report offers the FCC a prime opportunity to
address wireless facility siting. FCC adoption of clearer rules and policy regarding
federal limits on local government approval processes can help reduce wireless
infrastructure permits being improperly denied or delayed.
In Howard County v.
T-Mobile the U.S.
District Court for the District of Maryland upheld the County Board's rejection
of a permit application to build a 100-foot monopole on a church property. The
District Court applied a highly deferential standard in reviewing the Board's
zoning decision. A local school district's bureaucratic response in turning
down T-Mobile's requests to place a tower on school property and the Board's
reliance on a burden of extra production of evidence regarding sight distance
were deemed sufficient to uphold the Board's ruling.
Section 332(c) of the
Communications Act prohibits local government actions that have "the
effect of prohibiting the provision of personal wireless service." Current
jurisprudence, however, make it very difficult for wireless carriers to ever
gain a favorable ruling under this provision. Federal case precedents offer
only general considerations about what constitutes, in practical effect, a
prohibition of wireless services. Absent blanket bans on wireless facility
siting by local governments, carriers are typically required to establish,
among other things, "a legally cognizable deficit in coverage amounting to
an effective absence of coverage." In explaining this factor, the District
Court cited Fourth Circuit precedent for the proposition that "the record
must clearly demonstrate that there is an absence of service in a particular
part of the country."
In this case, the
District Court concluded that "the record does not clearly demonstrate an
absence of service in this area" or a "legally cognizable gap in
service" because: (1) T-Mobile already had towers and antennas in the
general area; (2) a T-Mobile expert witness testified that the carrier's
coverage in the area was unreliable but not "completely lacking"; and
(3) T-Mobile's expert catalogued dropped call rates of 5.42%, 6.26%, and 2.68%
over three months, exceeding T-Mobile's goal to keep the drop call rate at or
below 2%. In light of those dropped call rates District Court concluded
"the record does not clearly demonstrate an absence of service in this
area."
However, dropped calls
are hardly the only wireless service quality issue. Sufficient signal strength
and speeds are also necessary for wireless broadband service. And it is
particularly important for wireless service providers to deploy infrastructure
that meets projected future wireless data traffic demands.
There appears to be a judicial reluctance to further define
what constitutes "a legally cognizable deficit in coverage amounting to an
effective absence of coverage." For instance, in a Fourth Circuit decision
from earlier this year Judge Andre Davis wrote that, "[o]ur review of an
effective-prohibition claim might look different if there were properly
promulgated FCC regulations setting particular threshold coverage levels subsection
(B)(i)(II) entitles
a company like T-Mobile to provide." The judicial reticence appears to be
based on concerns that the judiciary avoid instilling public policy judgments though
its rulings.
Accordingly, the FCC
should take steps to clarify what constitutes an effective prohibition of
wireless service by local governments under Section 332(c). And it should do so
as part of a broader effort to bring greater specificity to how Section 332(c)
applies to all aspects of the local government approval process for wireless
facility siting.
The FCC's 2011 Section 706 Broadband
Progress Report
lamented the apparent lack of access to broadband experienced by more than 20
million Americans. In the Report, the FCC declared that broadband is not being deployed to
all Americans in a timely manner. Congress declared that in such circumstances
the FCC shall take immediate action to accelerate deployment of advanced
communications services such as wireless broadband "by removing barriers
to infrastructure investment and by promoting competition in the
telecommunications market."
One might criticize
the FCC's numbers, starting with the agency's exclusion of 3G wireless networks
from its wireless broadband service coverage count. But removing regulatory
barriers to infrastructure investment should always be the preferred policy. In
any event, if the FCC takes its own declaration about lack of timely deployment
seriously it should target wireless facility siting permit approval denials and
delays by local governments. After all, the FCC acknowledged in its 2011 Wireless Competition Report that obtaining regulatory approvals
from state and local governments is a significant constraint for wireless
service providers that need to add or modify wireless facility sites.
The FCC can establish
forward-looking threshold coverage levels that take next-generation wireless
network capabilities and demands into account. The agency's 2011 Section 706
Report regards 4G
networks as setting the present standard for wireless broadband coverage. So it
follows that removing barriers to deploying infrastructure should mean
calibrating expected coverage levels to next-generation wireless broadband
capabilities. Anything less should be considered to amount to "an
effective absence of coverage."
The Public Notice issued by the FCC in preparing its
forthcoming Section 706 Report solicited public comment to compile a record regarding the local
government approval process for wireless tower facilities. So the Report offers a perfect opportunity for
the FCC to further spotlight where local government obstruction to investment
in wireless infrastructure can be removed.
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