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Fall 2001 When it passed the Telecommunications Act of 1996, Congress intended to expand wireless services and increase competition among providers by reducing the regulatory burden. At the local level, this meant limiting the traditionally broad powers of local governments to restrict land use through the zoning power. Under the Act, local governments retain some control over the placement of "personal wireless service facilities," the most controversial of which are tall telecommunications towers for cell phone service. However, Congress placed limits on that authority. For example, local authorities may not unreasonably discriminate among providers of similar services, nor prohibit personal wireless services in their localities. They must respond with reasonable speed to any request to build facilities. If an application is denied, the denial must be in writing and must be supported by substantial evidence in a written record. When a provider of wireless telecommunications services was denied permission by a town zoning board to build a 150-foot-high telecommunications tower, it sued the town in federal court. The provider argued that the town exceeded its authority under the Act by basing its decision on citizens' statements of general opposition to cell towers, not "substantial evidence." The court ruled in favor of the town, allowing it to prohibit the tower even though the decision was based largely on an aesthetic judgment. The tower stirred opposition because of its location. It was to be built on top of a 50-foot hill in the middle of a cleared field, in the geographic center of the small town. Visible during all seasons, the tower would be seen daily by about one quarter of the town's population. It was close to three schools and two residential subdivisions. The telecommunications provider argued to no avail that the town could not deny the application without showing that there was a suitable alternative site with less visual impact. However, the unmet burden had been on the provider to prove the absence of any other feasible site in the town, in which case the provider might have been able to win by showing that the town's denial effectively prohibited personal wireless services in the area.
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