 The New Jersey Planner December 1997 The Telecommunications Act of 1996 By: Alan B. Zublatt, Esq. As the Telecommunications Act of 1996 approaches its second year, and the demand for personal wireless and mobile communications services steadily grows, it is beneficial to review the impact on the local level that this federal legislation has had upon the siting and construction of antennae and support facilities for personal wireless services. Overview On February 8, 1996, the Telecommunications Act of 1996[1] was signed into law by President Clinton. It substantially amended the Communications Act of 1934, 47 U.S.C.U 151 et seq. The 1996 Act was designed to stimulate competition and private investment, promote universal service and open access to information networks and to provide for flexible government regulations[2]. It essentially establishes a framework within, which, and under certain terms and conditions, state and local zoning authorities may exercise their jurisdiction over the construction, modification and placement of personal wireless service facilities. However, while the Act thus preserves state and local authority over zoning decisions pertaining to the siting, construction and modification of such facilities, it also prohibits state and local authorities from unreasonably discriminating among “providers of functionally equivalent Services or engaging in any action that prohibits or has the effect of prohibiting the provision of personal wireless services.”[3] Thus, the Act strikes a balance between what is often times viewed as competing interests – the promotion of free competition among providers to open new markets and the power of local zoning authorities to regulate the siting of personal wireless service facilities. In addition, the Act imposes specific procedural requirements upon local authorities. These include the directive that such authorities render a decision regarding a request for authorization to place, construct or modify personal wireless service facilities within “ a reasonable period of time” after the request has been filed, as well as the requirement that local authorities support their decision with “substantial evidence” and written findings.[4] These procedural requirements may reflect the standards traditionally used for judicial review of agency or local government action but a compelling argument can be made that they alter the scope of review under the “arbitrary and capricious” standard used by New Jersey Courts in reviewing administrative decisions in complaints in lieu of prerogative writs. [5] Importantly, the Act also includes a categorical restriction upon any municipal regulation affecting the placement of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions. This field restriction addresses the health concerns that typically arise with regard to the effects of radio frequency emissions from wireless transmitters. The Act prohibits a local zoning authority from considering the possible effects of these emissions when reviewing a siting, construction or modification application if the proposed facility satisfies Federal Communications commission standards for radio frequency emissions.[6] Thus, pursuant to the Act, a local zoning authority is preempted from reviewing whether radio frequency emissions from a proposed wireless communication facility might pose a health risk to the community if the facility’s radio frequency emissions complies with the standards set forth by the Federal Communications Commission; that compliance determination appears to be preempted by the FCC under certain conditions. Recently, one court reviewed a board of commissioners’ decision to deny an application to install a 197-foot cellular telephone communications monopole in a commercial zone pursuant to the terms of the Act. Bellsouth Mobility, Inc. v. Gwinnett Ct. 944 F.Supp. 923 (N.D. Ga. 1996). The district court held that the board’s decision was not supported by substantial evidence and granted the applicant’s permit request. The applicant had proffered evidence from the county departments of transportation and public safety indicating that those authorities did not object to the application, as well as documents from the county planning and development department recommending that the application be approved subject to three limited conditions that the applicant had promptly agreed to satisfy. The applicant also submitted evidence that the radio frequency emissions generated from the monopole would fall well below the limits imposed by federal regulation. Additionally, the applicant had submitted expert appraiser’s reports indicating that the previous placement of monopoles had not adversely affected the neighboring residential property values. In opposition to the applications, an objector, testifying on behalf of residents in a neighboring subdivision, expressed his fear that children would be attracted to the proposed antenna and would attempt to climb it, and that the antenna could pose a safety hazard should it become dislodged during a storm. Id. At 925-26. He also believed that the monopole would not be aesthetically compatible with existing structures and that it would decrease the value of neighboring residential properties. The court characterized the applicant’s proffer as “compelling” and found that the objector’s “generalized concerns” did not constitute substantial evidence that would support the board’s denial of the application. The Court found that the applicant was entitled to relief pursuant to the terms of the Telecommunications Act and granted the application. Id. At 928. In New Jersey, telecommunications towers have been deemed inherently beneficial uses as a matter of law.[7] Accordingly, because these facilities promote the general welfare “special reasons” are said to unquestionable exist for a grant of a variance for those uses.[8] The New Jersey Supreme Court has determined that any detrimental effect attendant to the grant of a variance for inherently beneficial uses must be significant in order to outweigh the positive criteria and warrant the denial of variance relief.[9] Thus, in this respect, the Telecommunications Act essentially compliments existing New Jersey State Law. Tower Siting and Collocation – Federal and State Participation The Telecommunications Act specifically encourages the federal government to make available property, rights-of-way and easements under its jurisdiction for the placement of new spectrum-based telecommunications services.[10] In addition, the Act provides that the Federal Communications Commission will offer technical support to states to encourage them to make property, rights-of-way and easements under their jurisdiction available for such facilities. Thus, federal policy encourages placement of these facilities on State property and contemplates collocation between government and private entities with an aye towards generating revenue for the States. In Township of Teaneck v. Bell Atlantic Mobile Systems, Inc., Docket No. C-56-96E (March 18, 1996, transcript on Order to Show Cause, pp. 2-28), Judge Lesemann dismissed a complaint from the Township of Teaneck that sought an interlocutory injunction to prevent construction of a communications tower by a personal wireless service provider on property owned by the New Jersey Turnpike Authority. Pursuant to the terms of a contract between the provider and the New Jersey Turnpike Authority, the provider was to construct a communications tower that would provide the Turnpike Authority with communication services for its state police, maintenance and operations departments. The provider would then pay the Turnpike Authority a monthly fee, which would enable the provider to use the tower for personal communications services. Judge Lesemann, after review of case precedent and the Turnpike Authority’s enabling statutes, determined that the proposed communications tower was directly related to the operations of the Turnpike Authority, notwithstanding the provider’s participation and private use of the tower, and deemed the project immune from local zoning restrictions. This, not only is state participation, vis-a’-vis collocations encouraged under the federal Act, but such a partnership between providers and state entities will probably exempt these communication facilities from local zoning restrictions. In sum, the Telecommunications Act of 1996 establishes and clarifies the responsibilities of municipal zoning boards, provides a useful framework within which complex siting issues can be resolved and encourages state and federal entities to make properties, rights-if-ways and easements under their control available to providers to enhance the communications network and satisfy the burgeoning public demand for personal wireless and mobile communications services. _________________ [1] Pub. L., No. 104-104, 110 Stat. 56 (1996) [2] Statement by President William J. Clinton upon signing S.652, 32 Weekly Comp. Pres.Doc. 218 (Feb. 8, 1996) [3] U.S.C. 332(c) (7) (B) (I). [4] U.S.C 332 (c) (7) (B) (iii). [5] Conference Agreement, J.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 704 (1996). [6] Nynex Mobile Comm. Co. v. Hazlet Tp., 276 N.J. Super. 598 (App. Div. 1994) [7] U.S.C 332 (c) (7) (B) (iv).. [8] Sica v. Board of Adjustment of Tp. Of Wall, 1127 N.J. 152 (1992). 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