Reality Check: Our marginal wireless infrastructure

Editor’s Note: Welcome to our weekly Reality Check column. We’ve gathered a group of visionaries and veterans in the mobile industry to give their insights into the marketplace.
Emboldened by a vision of a national wireless infrastructure that would set the standard for the world, Congress enacted the Telecommunications Act of 1996 to “promote competition and reduce regulation” and “encourage the rapid deployment of new telecommunications technologies.” Now, some 13 years later, a recent White House report notes that “[o]ur … technical infrastructure has been neglected, threatening the ability of American business to compete with the world.”
If you ask some industry experts, they will tell you local governments are a big part of the problem: the FCC announced last November that some 3,300 permit applications for wireless telecommunications facilities are languishing in city and county planning departments; 760 of those have been pending for more than a year. The longer those permits sit, the more difficult it is for wireless providers to deliver reliable service and new technologies to their customers. Added to the problem is the number of permit denials that keep carriers from upgrading their networks.
Why do local governments present an obstacle to development of a first-rate wireless network? Because cities and counties are run by elected officials, whose constituents are concerned about the health effects of radio frequency emissions or the aesthetic impacts wireless antennas may have on their communities. Whatever drives the antagonism, the debates about whether to approve or disapprove permits frequently are heated and passionate.
Yet, on the other side of the dam, the water is building: (1) some 23% of households are all-wireless; (2) smartphone devices, featuring mobile Internet services and streaming video, are now ubiquitous; (3) mobile social networking has become commonplace; and (4) the number of 911 calls made from wireless phones has increased to about 50% of the millions of 911 calls received daily. The trend shows no sign of slowing, with new 4G technologies allowing Internet applications such as Voice over Internet Protocol, video streaming, music downloading, and mobile TV.
Such developments place formidable demands on the nation’s wireless infrastructure: carriers must expand and upgrade their systems to accommodate the growing demand for greater data streams. That means new wireless facilities, more site upgrades and, importantly, more land use permit applications.
Federalism at fault?
For all the focus on local government as part of the problem, no one should begrudge cities and counties their prerogatives in maintaining effective land use, zoning and planning controls within their boundaries. That’s how the country is set up; local concerns are sacred precinct of local government, and the feds cannot intervene absent some overriding federal policy and a sound constitutional justification. In the United States, we are as proud of that federalist system of government as we are with our technological contributions to the world.
But those two values clearly aren’t always in synch.
For the United States to effectively move into the 21st century as the leader in wireless technologies, it will have to better facilitate the build-out of a cutting edge wireless network. That means finding some middle ground that effectively preserves the local planning authority of cities and counties, while still providing sufficient leeway for carriers to freely and adequately meet the demands of a technology that is unfolding at a bristling pace.
The battleground of the courts
So far, the struggle between the industry and local government has played out through litigation. All over the country, carriers and tower builders have filed lawsuits against recalcitrant municipalities that have either failed to act on permit applications, have imposed unrealistic conditions, or have outright denied permits, resulting in major gaps in coverage.
Lawsuits are the predictable consequence of a poorly worded statute. In this case, the Telecommunications Act of 1996 has appeared to give rise to more questions than answers regarding how much local authority is left to deny a permit for a wireless telecommunications facility. As multiple courts have observed, the federal statute is not a model of clarity.
Many of the provisions congress drafted to reduce local barriers were worded in such a way that even the courts have not been able to consistently interpret their meaning.
For example, section 332 of the Telecom Act bars state and local governments from taking actions that “prohibit or have the effect of prohibiting” wireless service. The Circuit Courts of Appeal, which have jurisdiction over interpreting the Telecom Act, have not been able to agree on how section 332 should be read or what a carrier must do to prove a city action has resulted in an unlawful prohibition of service.
In other cases, the courts have flip-flopped on their interpretation of the Telecom Act, thereby adding to the uncertainty. For example, until last year, the 9th Circuit interpreted section 253 of the Telecom Act to allow carriers to go to court to obtain orders invalidating overly burdensome city wireless ordinances. The providers did not have to demonstrate that the ordinance actually resulted in an inability to provide service, only that the ordinance was so onerous on its face that it was likely to result in a prohibition of service. In Sprint Telephony PCS, L.P. v. County of San Diego, the court changed its mind. Now, a provider suing a municipality under section 253 must show that the challenged ordinance actually prohibited or effectively prohibited the provision of telecommunications or wireless services, and not just a “mere possibility of prohibition.” The decision made it exponentially more difficult for carriers to challenge local regulations that place a strangle-hold on wireless deployments.
In yet another move by the 9th Circuit, the court made a dramatic about-face from its reasoning in an earlier case Sprint PCS v. La Canada Flintridge, which held that cities could not deny permits for wireless facilities in the public rights-of-way on the basis of their appearance. The La Canada Flintridge case had followed a long line of case law in California that limited local control of the public streets and highways to controlling only the time, place and manner of access to the roads – not the aesthetic impact of the telephone facility. Under the new case, Sprint PCS Assets LLC v. City of Palos Verdes Estates, cities and counties now can deny permit applications for facilities in the public rights-of-way on the basis of aesthetic considerations. As with the San Diego County case, the decision dealt a major blow to the carriers, which had relied on their ability to construct their facilities in the public roads without undue interference by the local municipality.
The executive branch weighs in
Frustrated with the glacial pace of courtroom battles and the resulting decisions coming from the bench, the carriers now are seeking the assistance of the president. And the president has responded.
In what could be a key decision impacting the deployment of wireless networks throughout the nation, the Federal Communications Commission recently issued its own interpretation of the Telecommunications Act, in the form of a declaratory ruling imposing specific deadlines on state and local governments to act on permit applications for wireless telecommunications facilities.
The Nov. 18, 2009, order interprets section 332(c)(7)(B)(ii) of the Telecommunications Act. That section states, in part: “A State or local government … shall act on any request for authorization to place, construct, or mo
dify personal wireless service facilities within
a reasonable period of time after the request is duly filed … .” The ruling seeks to clarify yet another inherent ambiguity in the “reasonable period of time” provision by declaring that cities and counties must act on collocation applications within 90 days of the filing of the application and must act on applications for new sites within 150 days of filing. The FCC ruling also rectifies a long running disagreement in the courts by declaring that a denial of a permit on grounds that other providers have coverage in the target coverage area constitutes an effective prohibition of service in violation of this section.
The intervention of the executive branch represents an unprecedented development in the ongoing struggle to understand the proper metes of bounds of local authority to deny permits for wireless structures. It has allowed the carriers, as an industry, to circumvent the painful processes of litigation and obtain more expeditious resolution of problems inherent in the wording of the Telecommunications Act. Notably, many local governments are not pleased, and some are seeking invalidation of the FCC order though the federal courts.
What’s next?
To expect the United States to lead the world in the development of a premier wireless infrastructure should not be a matter of debate. But accomplishing such an end will demand significant change. The pressures on the wireless industry to improve and expand the nation’s wireless infrastructure show no sign of abating. At the same time, local governments will continue to resist efforts to circumscribe their land use powers. The courts have proved to be a costly battleground for this struggle, and recent decisions by such courts as the 9th Circuit have dealt significant blows to efforts by carriers to deploy their networks.
For the future, the two sides must come together to find mutually acceptable solutions, possibly in the form of model legislation, that strike a better balance between reducing permitting barriers and preserving local police powers. As an example, in California, the California Wireless Association was created, in part, as a catalyst for consensus among all stakeholders in the wireless land use debate. This year, CalWA is working with the University of Southern California’s Institute for Communications Technology to hold an all-day summit with industry and governmental leaders. The Summit participants will work together to identify the challenges and obstacles faced by both sides and to develop action items for change. This event represents one concrete step toward fixing the problem.
Michael W. Shonafelt is a shareholder at the law firm of Parker Milliken Clark O’Hara and Samuelian, where he practices land use law, with a specialty focus on wireless telecommunications. He also serves as a member of the Board of the California Wireless Association. Rich Grimes is principal and chief executive officer of Capital Tower Group L.L.C. (“CTG”) a wireless communications site development, management and advisory services company. Rich also is a principal in two CTG subsidiaries in CT COMM, focused on governmental telecommunications services and VeloTera Communications, a microwave backhaul technology equipment, design and deployment services company.