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New Jerseyans demand quality cellular telephone service. Sprint, Verizon, Cingular, AT&T Wireless, Omnipoint and Nextel are filing applications at the local clerk’s office to install gangly antennas or towers allegedly needed to serve the rising demand of local residents. But locals do not want the apparatus in their backyard. How will local government effectively address the rising storm of cellular antennas and towers that threaten to flood residents with the mechanizations of the mobile telephone industry? Mobile telephone providers vehemently maintain the federal Telecommunications Act of 1996 mandates they provide “seamless” coverage to the masses. While this statement is subject to argument, it is consistent with the marketing themes and demands that are overwhelming a burgeoning industry. See The New York Times, $41 Billion Offer By Cingular Wins AT&T Wireless, A1 (Feb. 18, 2004). Generally, the benchmark for determining whether the federal act will require placement of a telecommunications station in a particular locale is the existence of a “significant gap” in wireless service. NOT IN MY BACKYARD The residents of New Jersey — like residents around the United States — demand continuous seamless coverage for their cell phones, Blackberrys and video/picture phones. A review of the prevalent advertising themes shows cellular providers understand the market demands. As providers scurry to meet the demand, they also snare much-coveted market share. For instance, AT&T Wireless (recently acquired by Cingular Wireless) claims it has the “most wireless coverage in North America.” The New York Times, A10 (Oct. 24, 2003). In order to provide the “most coverage in North America,” a wireless provider needs the technical infrastructure to support major call volume. This is the reason local governments (and planning or zoning boards) have become deluged with applications to install cellular antennas or tall telecommunications “monopoles.” Herein lies the rub — while all residents want their mobile phone to work, nobody wants to see a 180-foot monopole in their backyard. Nor do urban residents want a return of the 1950s era when television antennas were festooned on every available nook and cranny. Local regulators are thus confronted with a paradox — constituents demand that they have 24-hour hour access to the wireless Web, but they want the connection to be invisible. As indicated in slip opinions issued by the appellate panels across the state, local government attempts to stanch the flow of telecommunications’ substations have met with limited success. While the act certainly prevents local government from completely banning such installations, it reserves traditional land-use/police powers to local government. The act also prohibits objections to a cell site based solely on health or aesthetic concerns. However, the act’s statutory reservation, if properly applied and supported by expert advice, should ultimately have the practical effect of stemming the tide of wireless telecommunications’ installations once a local market is sufficiently served by at least one mobile phone provider. UTILITY-SERVICE MODEL When an area has a broad spectrum of mobile service providers, federal courts are beginning to shape the act’s no-holds-barred, survival-of-the-fittest policy into a utility-service model. The most recent New Jersey federal case interpreting the act is Omnipoint Communications v. Zoning Hearing Board, 331 F.3d 386 (3d Cir. 2003) ( Omnipoint II). The 3rd U.S. Circuit Court of Appeals examined “the manner in which to determine the existence of a ‘significant gap.’” Id. at 396. The circuit court noted “local governments must allow service providers to fill gaps in the ability of wireless telephones to have access to land-lines.” Id. at 397. The court held “a fact-finder determining the existence of a significant gap should determine whether other providers already serve the area. The fact that one applicant may have coverage problems is not determinative of whether there is a significant gap.” Id. at 400. The Omnipoint II holding is based on prevailing decisional authority within the 3rd Circuit. Nextel West Corp. v. Unity Tp., 282 F.3d 257 (3d Cir. 2002); Omnipoint Comm. Ent., L.P. v. Newtown Tp., 219 F.3d 240, 241 (3d Cir. 2000) ( Omnipoint I) (noting the applicant must prove: (1) a significant gap; and (2) the least intrusive means were employed to fill that gap); and APT Pittsburgh Ltd. Partnership v. Penn Township, 196 F.3d 469, 473 (3d Cir. 1999). The Omnipoint II court reiterated the Penn Township test, explaining the first prong requires “a gap from the user’s perspective, rather than a particular provider’s perspective.” Omnipoint II, 331 F.3d at 399 (emphasis in original). The court declared that the “provider must include evidence that the area the new facility will serve is not already served by another provider.” Id. (quoting, Nextel West, supra, 282 F.3d at 265-66). A provider’s “gap” in market share should therefore not be equated with a gap in effective overall coverage. Omnipoint II is, of course, consistent with other federal cases that have addressed the dichotomy between local zoning power, and the act’s pro-competitive de-regulatory framework. See Sprint Spectrum L.P. v. Willoth, 176 F.3d 630 (2d Cir. 1999). The 2nd Circuit upheld the local zoning board’s denial of Sprint’s application to install several cellular antenna towers. Id. at 634. The judge in Willoth reasoned: The essence of Sprint’s argument is that it has the right, under this provision of the TCA, to construct any towers it deems necessary to compete effectively with other telecommunications providers. This untenable position founders on the statutory language. Therefore, current federal law mandates that a provider show a particular local is not being serviced by any of the mobile providers before examining whether a local board must analyze the more traditional land-use factors. Like many technical judgments, the issue of whether a gap exists ultimately has a subjective element, reducible to competing expert opinions. SIGNIFICANT GAP The most recent appellate division decision is New York SMSA L.T.D. (d/b/a Bell-Atlantic Mobile) v. Township of Mendham Zoning Board of Adjustment, Docket No. A-4772-01T2 (January 29, 2004). Similar to the majority of reported New Jersey cases, the appellate court reversed a decision of the local zoning board denying a variance to construct a “148-foot wireless communications tower on residential property in Mendham Township.” Slip op. at 2. The case was unusual “in that all five wireless communications service providers operating in Northern New Jersey collaborated in the single site proposal.” Id. at 2-3. The court decided whether the Board’s denial of a variance violated the Telecommunications Act, “which limits the authority of local zoning boards to render decisions that effectively prohibit wireless communications services.” Id. at 3. The key to Mendham Tp. is that all five of the wireless companies did not have coverage along several miles of the Route 24 corridor. In effect, any person traveling along that corridor would be unable to make or receive a mobile telephone call. This is true regardless of whether the person was using Nextel, AT&T, Cingular, Verizon or Omnipoint. Hence, a “significant gap” in service. Regardless of the social policy or traditional police-power concerns supporting the Board’s decision, its authority to deny the application was pre-empted by the federal act, and reversal was indicated. The more frequent case arises where one wireless company alleges a coverage gap in the local market, and thus submits an application to the local board for a variance to cure the purported gap, regardless of existing service by competitors. It is in this scenario that the local government should be aided by the Mendham Tp. case because it confirms that there should only be enough cell sites to adequately provide service to the area in question; not enough to promote competition for customers within the municipality at large. Again, this is more closely analogous to a utility service expansion test. General public need must be demonstrated as in “certificate of need” proceedings. The business judgment of an individual applicant that it would like to expand its presence in an already serviced market should not be sufficient. TWO-PART TEST The following two-part test appears from the relevant federal and state case law. It may be used to determine whether an applicant for a use variance to install a mobile telephone site has met the positive criteria: (1) Has the applicant proved a significant gap in coverage from the perspective of the user? (An inquiry that considers whether the applicant “proved that the area is not already being served by another wireless communications provider,” (Sprint Spectrum v. Upper Saddle River, 352 N.J. Super. 575, 609 (App. Div. 2002)); and (2) Has the least intrusive means been employed to attempt to cover the significant gap? (An inquiry that analyzes whether the applicant identified and investigated alternate sites for the proposed facility.) The Mendham Tp. case expresses these elements in four-parts, but substantively adds only one discreet element: The telecommunications company must show that “they have made a good faith effort to investigate alternate technologies and alternate sites which may be less intrusive in the community.” Mendham Tp., Slip op. at 7. This good faith test should further bolster local government’s hopes of effectively addressing the rising tide of cell-phone siting applications. Under this type of test, consistent with the federal cases, a local government will have more discretion to deny or conditionally accept an application once an area is “covered” by at least one of the mobile phone providers. Denial of an application might not always be the best solution either. When a local government understands the act’s effect on local zoning decisions and presents itself to the provider seeking to install a cell site with its expertise, it is on a more even keel when bargaining placement of a needed cell site. In the end, while there is no perfect solution for meeting the ever-increasing need for technological advancement, especially in the realm of personal telecommunications, local government need not become entangled in the wireless Web over placement of the hardware needed to support such a wireless system. Local government should see a ray of hope in the concept that once a market has sufficient “coverage,” a town need not submit to further competitive proliferation of redundant wireless capacity, and thereby close the door to even more unsightly talons of telecommunications. Once an area has a threshold level of service quality, a local zoning board may properly deny an application based on the idea that there is no “significant gap” in service, and therefore, no “particular need” for a variance from an otherwise valid (local resident-supported) zoning plan. Horgan is with Waters, McPherson, McNeill, PC (http://web.lawwmm.com/index.asp). Grather is with McKirdy and Riskin, PA (http://publish.pdesigner.com/m&rlaw/). This article first appeared in the April/May issue of The Morris Lawyer, a publication of the Morris County Bar Association, and is reprinted with permission. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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