Introduction

In recent years, local governments – planners and elected officials alike – increasingly have felt the presence of Uncle Sam in the community planning process. The U.S. Congress flexed its muscle most recently in 2000, when it passed the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which purports to curb the local government’s ability to regulate religious uses. (2) There have been few court decisions so far to offer insight into whether or to what extent RLUIPA will, in fact, have a marked impact on the way local governments do business. However, four years prior to RLUIPA, Congress passed a law that surely has had this effect: the Telecommunications Act of 1996 (the Act).(3) This act, more than its successor RLUIPA, has caused significant and widespread debate over the extent to which local governments are authorized to regulate the placement, construction, and modification of personal wireless service facilities.(4)

Indeed, the conflict is a deep-seated one, with persuasive arguments for and against the federal government’s intrusion into the realm of land use planning, an area traditionally reserved to the local government. Fundamentally, it is a conflict created by the local government’s historic authority to control with wide discretion the way in which land is regulated, free from the interference of the federal government and, in most cases, the judiciary. However, the federal government has a simultaneous and far-reaching interest in the broadcast spectrum; an interest protected by its clear authority to control interstate commerce. It is this delicate balance that is thrown into question by the Act itself, and that the courts interpreting the Act have tried to restore since its adoption.

This paper provides an overview of the Act itself, describing the elements most crucial to the daily life of the planner, and concludes with a discussion of two bellwether cases decided under the Act. While not exhaustive (there are hundreds of federal decisions on point), these two cases provide good examples of the legal obstacles that stand between a useful wireless facilities ordinance and its successful defense in the court of law. Throughout the paper, the author identifies important issues of which local government planners, attorneys, and elected officials should remain aware as they navigate the uncertain waters of personal wireless service facility regulation.

A. The Telecommunications Act of 1996

The stated purpose of the Telecommunications Act of 1996 was to:

1. "provide for a pro-competitive, de-regulatory national policy framework";
2. "accelerate rapidly sector deployment of advanced telecommunications and information technologies and services";
3. open "all telecommunications markets to competition …"; and
4. "encourage lower prices, better quality, and greater choice for consumers." (5)

In furtherance of these objectives, Congress adopted 47 U.S.C. §332(c)(7), which purports to protect the authority of state and local governments to regulate wireless facilities, but which also explicitly limits the areas over which that authority may be exercised. Accordingly, the Act has raised many questions for the courts to answer. The relevant language is as follows:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations

1. The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof --
   1. shall not unreasonably discriminate among providers of functionally equivalent services; and
   2. shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
2. A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
3. Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
4. No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
5. Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

It is the complicated task of determining what exactly paragraph (7)(A) means in light of paragraph (7)(B), that the courts have undertaken since the Act was adopted.(6)

Simply put, local governments may impose requirements on the placement of wireless facilities, so long as those requirements do not have the effect of unreasonably discriminating between carriers of wireless services or technologies, and does not prohibit, as a matter of policy, the ability of any licensed carrier from providing services.(7) Procedurally, the local government must ensure not only that applications for wireless facilities are reviewed and acted on within a "reasonable period of time," but also that if a denial results from the review, the governing body’s decision is "in writing and supported by substantial evidence contained in a written record."(8) Although the court holdings diverge, on balance, local government authority appears to have won out on the substantive questions of authority and the sanctity of the local zoning process. However, the courts have required local governments to exercise extraordinary technical and procedural diligence when they deny a particular wireless facility application.(9) What follows is a discussion of how two different communities, both in the Eleventh Circuit, dealt with wireless facilities applications that were contrary to local planning objectives and policies.

B. The Evidentiary Game Played Out

The rules set forth in cases decided under the Act vary depending on the circuit in which they are decided. The cases discussed here, therefore, should not be interpreted as controlling in every local jurisdiction. However, a review of these cases will give the practitioner a general understanding of what issues may arise when the next wireless application comes through the door, so that the planning and aesthetic considerations of the community will be protected, while the Board simultaneously steers clear of a successful legal challenge under the Act.

1. Group EMF, Inc. v. Coweta County, 131 F.Supp.2d 1335 (N.D. Ga. 2000)

This is the case of "voluminous materials" saving the day for the wireless carrier.(10) Here, the Coweta County Board of Commissioners denied an application for a new 150-foot antenna support structure, or tower, proposed in an area zoned rural reserve.(11) Based on the specific recommendations of its planning staff, the Board set forth three specific bases for denying the proposed tower. Generally, the issues involved: fall zones, alternative sites, and airport safety. The carrier sued the County, alleging, inter alia, that the denial violated the Telecommunications Act of 1996.(12) The County lost. Here’s why.

First, the Board found that the proposed structure was to be located within 150 feet of a nearby residential structure, which was, in this case, an off-site storage facility and garage owned and used by a nearby resident.(13) This finding was consistent with a code requirement that all antenna support structures be placed a distance equal to their height from any residential structure: not an uncommon requirement in wireless facilities ordinances. At the hearing, the applicant provided, as the court put it, "voluminous materials" to dispute, not the Board’s finding, but the validity of the ordinance requirement itself.(14) Specifically, the carrier submitted for the record engineering reports refuting the ordinance’s presumption that a fall zone equal to the height of the tower was required. Additionally, the carrier offered the testimony of an engineer with multiple degrees – each of which the court took pains to list – who testified that not only do structures rarely fail, but that in the event of failure, the proposed structure was designed to fall completely within the premises of the proposed site.(15) The oral testimony corroborated the written reports submitted for the record and the engineer offered to field any questions of the Board.

In what was its fatal error, not only did the Board fail to ask any questions of the engineer, but the County also failed to offer any evidence to rebut the "voluminous materials" proffered by the applicant. Noting that one citizen – presumably not an extensively degreed engineer – did speak in opposition to the carrier’s claims, the court found that these "generalized concerns" were not enough. Relying on a Florida case with similar facts,(16) the court concluded that, "[D]espite the local ordinance presuming a fall zone equal to the height of a tower, the Board’s decision to deny the special use permit on the basis of the fall zone is not supported by substantial evidence as required by the Telecommunications Act."

Second, the Board found that a nearby existing tower should have been and was not considered as an alternative structure upon which the applicant could hang his proposed antennas.(17) Again, generally consistent with most local government wireless policies, the County’s Code provided as follows:

no new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the governing authority that no existing tower or structure can accommodate the applicant’s proposed antenna.(18)

Again, the carrier presented "voluminous materials" at the hearing to dispute that the structure identified by staff as an alternative would support its engineering and coverage needs.(19) This time the testimony came from the carrier’s "property specialist," who explained that in-house radio frequency engineers had determined that the alternative site was not within the "search area" needed to fill the gap in his company’s coverage. And, again, the County offered no evidence to dispute the carrier’s evidence. Predictably, the court held that the County’s failure to provide any evidence – let alone substantial evidence – to refute that offered by the applicant resulted in an unlawful denial.(20)

Finally, the third basis for the County’s denial was that the support structure would interfere with the operation of a private landing strip located almost 5,000 feet from the proposed site. The County relied on general concerns expressed by the owner of the landing strip. The applicant, however, performed an airspace evaluation that "mirrored" that typically performed by the FAA,(21) and concluded that "there [was] no safety issue for the Rolling Meadows Airport caused by this tower."(22) Again citing the County’s failure to provide any rebuttal evidence in this regard, the court held that the airport safety concerns identified by the Board (and Staff) did not amount to substantial evidence sufficient to support a denial of the proposed facility.

The glaring message in the case is that compliance with the Telecommunications Act of 1996 is as much an evidentiary game as it is a planning one. The court in Coweta County based its holding on the fact that the County failed to provide substantial evidence to support its denial, while the applicant did provide such substantial, or "voluminous," evidence to refute the County’s initial bases for denial. Had the County proffered experts to support its denial, the court should have properly decided for the County. In this sense, the Act does not appear to disturb the traditional notion that the local government remains the proper authority for deciding local land use issues. It does, however, reverse the presumption that favors the validity of the local government’s decision.

In many states, Oregon and Florida, for example, this is nothing new. Under the Fasano doctrine, it is established procedure to require substantial evidence in support of quasi-judicial or administrative decisions, like those made regarding a typical wireless application.(23) As a federal district court in Florida put it: "The requirement of ‘substantial evidence’ allows a reviewing court to evaluate the reasoning behind an agency decision. It does not change the substantive rules applicable to the decision."(24) In BellSouth Mobility, Inc., the same court that decided Coweta County held as follows:

Although the court is not free to substitute its judgment for that of the board of commissioners, it must overturn the board’s decision under the substantial evidence test if it "cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view."(25)

And the court went on to find – consistent with the traditional standard – that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."(26) AT&T Wireless Services v. Orange County provides an interesting example of where the line should be drawn to distinguish the local government’s authority from the judiciary’s.(27)

2. AT&T Wireless Serv. v. Orange County, 23 F. Supp.2d 1355 (M.D. Fla. 1998)

Here, the County denied an application for a variance and special exception that would have allowed the construction of a 99-foot tower in a residential district.(28) The carrier sued the County under both principles of state land use law and the Telecommunications Act of 1996, and the court held in the County’s favor in both respects. To decide the claims asserted under the Act, the court was faced with the question of whether the evidence proffered by the County was substantial enough to support a finding contrary to the position of the applicant, which also proffered considerable evidence in support of its position.(29)

This case is interesting because, as the court points out, the carrier was willing to concede to several significant mitigation measures, including reducing the height of the structure to 99 feet, camouflaging the structure, providing landscaping, and allowing future co-locations.(30) "Nevertheless," the court pointed out, "the Board apparently considered and rejected these mitigating factors," exercising its "authority to determine for itself … which uses and structures are or are not compatible with a particular neighborhood and existing surrounding uses."(31) Rejecting the carrier’s assertion that the Board’s subjective determinations of "compatibility" amounted to merely "generalized concerns," the court held that "[i]t is within the prerogatives of a local government to determine that a tower (or steeple) is too imposing for a particular neighborhood."(32) This case leaves in tact the authority of local government, even under the Act, to regulate the placement of wireless facilities so long as the local government sets out evidence in the record that addresses and supports the findings that support a particular denial.

Conclusion

Although the cases around the country are diverse in their holdings – indeed, the factual and procedural circumstances underlying each case are diverse – the general message is that local governments must learn how to play the evidentiary game when it comes to proposed wireless communications facilities. The challenge in this respect, as distinguished from typical quasi-judicial determinations, is that, in order to build a record that will stand up against the evidence proffered by the wireless applicant, the local government must involve experts in radio frequency engineering and must be informed of the relevant law that has developed under the Act. Local governments who are successful in developing wireless ordinances do so with the expertise of radio frequency engineers so that, when the ordinance is administered, successful legal challenge is less likely.

It is important that the local planner work closely with the city or county attorney during staff’s review of the wireless application, so that all evidentiary ducks can be put in a row. An informed record must be built during the review process, not afterwards.(33) As the Coweta County court pointed out:

While the County’s desire for an additional opportunity to address the evidence submitted in support of [the carrier’s] application is understandable, the Court notes that the County had ample opportunity to hire experts or to conduct other types of investigation regarding the propriety of the special use permit prior to voting on the application.(34)

As soon as an application is received that appears to run contrary to adopted land development regulations, and it appears a denial may be on the horizon, the local government planner should immediately engage the expertise of the city or county attorney as well as that of a radio frequency engineer. By doing so, the ordinance, which was undoubtedly painstaking in its development, will serve the purpose for which it was adopted.(35) Similarly, it is important that someone with radio frequency expertise review the application, and to develop reports and testimony as evidentiary in support of the Board’s denial. The local ordinance will only succeed in protecting the planning and aesthetic initiatives that underlie it, if the local government plays the evidentiary game created by the Telecommunications Act of 1996.

On balance, the Act does not strip the local government of its ability to reasonably regulate wireless communications facilities; it merely imposes a burden upon local government to provide a sufficient basis for the regulation and for its administration. The Coweta County case provides an excellent example of good planning undercut by a failure to comply with the evidentiary requirements of the Act. Certainly, the policies underlying the County’s denial were laudable and generally consistent with most wireless ordinances. However, the County failed to provide the evidence the Act requires in support of its denial. Had it done so, the policies would have been advanced by way of either a proper denial of the proposed structure or well-informed negotiations with the applicant.

NOTES

1. Tyson Smith is an attorney with the Kansas City office of Freilich, Leitner & Carlisle, where he practices land use and local government law. He earned his B.A. in Economics in 1991 from the University of North Carolina at Chapel Hill, his M.A. in Urban and Regional Planning in 1995 from the University of Florida, and his J.D. in 2000 from the University of Florida. Mr. Smith is a member of the Florida State Bar, and is a member of the American Institute of Certified Planners. Mr. Smith worked with the Monroe County, Florida Planning Department from 1992 to 1993, and served as the Assistant City Planner for the City of Key West, Florida from 1995 to 1997.
2. 42 U.S.C. §2000cc(2000).
3. 47 U.S.C. §332(c)(7)(1996).
4. Although "personal wireless services" include unlicensed wireless services and common carrier exchange access services, for most local governments and for the purposes of this paper, the focus is on commercial mobile services, which generally include cellular, PCS, paging, and specialized mobile radio services and facilities. Indeed, local governments are increasingly concerned with other broadcast type facilities, like AM/FM and digital television (DTV) facilities. However, these facilities are regulated in a different manner than personal wireless services, and are subject to different provisions of the Telecommunications Act and are not discussed here.
5. H.R. Conf. Rep. No. 104-458, at 113 (1996); see also Group EMF, Inc. v. Cowetta County, 50 F. Supp.2d 1338 (N.D. Ga. 1999).
6. See AT&T Wireless PCS, Inc. v. City of Chamblee, F. Supp.2d 1326 (N.D. Ga. 1997).
7. 47 U.S.C. §332(c)(7)(B); Omnipoint Communications, Inc. v. Planning and Zoning Commission of Guilford, 156 F. Supp.2d 212 (D.Conn. 2001); see also AT&T Wireless Services of Florida, Inc. v. Orange County, 23 F. Supp.2d 1355, 1361 (M.D. Fla. 1998) ("It is plain from the express language of the Act, and the legislative history, that Congress did not obviate the need to comply with local government requirements, as long as the requirements do not serve to ban towers entirely"); AT&T Wireless PCS, Inc., et al. v. City of Virginia Beach, 155 F.3d 423 (4th Cir. 1998).
8. See id. Note too, that the Act prohibits the local government from regulating the "environmental effects of radio frequency emissions" if the applicant has otherwise complied with federal regulations in that regard. Id.
9. See e.g., SBA Communications, Inc. v. Zoning Commission of the Town of Franklin, 164 F. Supp. 2d 280 (D. Conn. 2001); AT&T Wireless Services of Florida, Inc. v. Orange County, 982 F. Supp. 856 (M.D. Fla. 1997).
10. Group EMF, Inc. v. Coweta County, 131 F. Supp.2d 1335, 1340 (N.D.Ga. 2000).
11. See id. at 1339.
12. See id. at 1337.
13. See id. at 1339-40.
14. See id. at 1342.
15. See id.
16. OPM-USA-Inc. v. Brevard County, Florida, 7 F. Supp.2d 1316 (M.D. Fla. 1997).
17. See Group EMF, Inc., 131 F. Supp.2d at 1342.
18. See id.
19. See id. at 1342-43.
20. It is important to note that the court in Group EMF rejected the County’s attempt to provide or identify substantial evidence during the trial in support of its denial. See id. at 1343. Local government practitioners must not only see that substantial evidence exists and is presented in support of a denial, but also must see that that evidence is cited in a written denial provided to the applicant.
21. The FAA did not have jurisdiction in this case. See id. at 1344.
22. See id. at 1345.
23. See Board of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993); Fasano v. Board of County Commissioners, 507 P.2d 23 (Ore. 1973); but see, Arnel Development Co. v. City of Costa Mesa, 620 P.2d 565 (Cal. 1980).
24. AT&T Wireless Serv. of Florida, Inc., 23 F. Supp.2d at 1359.
25. BellSouth Mobility, Inc. v. Gwinnett County, 944 F. Supp. 923, 928 (N.D. Ga. 1996) (quoting Bickerstaff Clay Products Co., Inc. v. NLRB, 871 F.2d 980, 984 (11th Cir. 1989).
26. BellSouth Mobility, Inc., 944 F. Supp. at 928.
27. 23 F. Supp.2d 1355, 1359 (M.D. Fla. 1998).
28. See id. at 1356.
29. See id. at 1362.
30. See id.
31. Id.
32. Id. at 1363.
33. Most courts are willing to grant a writ of mandamus ordering the local government to issue the permit sought by the carrier plaintiff, finding that remand to the Board is contrary to the intent of the Act. See e.g., BellSouth Mobility, Inc., 944 F. Supp. at 929.
34. Group EMF, Inc., 131 F.Supp.2d at 1346 (emphasis added).
35. Typically, the cost to hire experts to review a wireless application is passed back to the applicant, and can range from between $2,500 to $5,000.