†1997 Susan Lorde Martin.

† Associate Professor of Business Law, Frank G. Zarb School of Business, Hofstra University; J.D., 1987, Hofstra University; A.B. Barnard College.

1. Pub. L. No. 104-104, 110 Stat. 56 (codified as enacted and amended in scattered sections of 15 U.S.C., 18 U.S.C. and 47 U.S.C.).

2. 110 Stat. at 56; 141 CONG. REC. H8269 (daily ed. Aug. 2, 1995) (statement of Rep. Linder); F.C.C. Proposed Rules: Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 61 Fed. Reg. 18,311 (1996) (to be codified at 47 C.F.R. ch. I).

3. S. REP. NO. 104-23, at § 103 (1995).

4. Telecommunications Act of 1996, 47 U.S.C. § 253.

5. See, e.g., F.C.C., THE HARD ROAD AHEAD -- AN AGENDA FOR THE FCC IN 1997 (Dec. 26, 1996).

6. See, e.g., 47 U.S.C. §§ 224(c), 253(a), 253(d) (1996).

7. See, e.g., Lisa Buie, Cellular Towers Bedevil Board, HERNANDO TIMES, Dec. 3, 1996, at 1 (Hernando County, Florida); Lisa Frederick, Towers Raise Ire as Cellular Phone Structures Spring Up, Some Residents Are Voicing Concerns, ATLANTA J. CONST., Jan. 2, 1997, at 1 (Covington, Georgia); Joe Gose, Cities in Search of Ways to Regulate Cellular Towers - Johnson Countians Want to Limit Construction, Fearing the Impact on Property Values, KANSAS CITY STAR, Nov. 20, 1996, at B3 (Johnson County, Kansas); Helen Bennett Harvey, Plans for Tower Anger Residents, NEW HAVEN REGISTER, Sept. 20, 1996 (Orange, Connecticut); Mark Larson, And Takes on Phone Towers, BUS. J. - SACRAMENTO, Sept. 9, 1996, at 2 (Sacramento County, California); Mike Maller, Cell-Site Doesn't Ring Well with Neighbors, IDAHO STATESMAN, July 17, 1996 (Cloverdale, Idaho); Jonathan Marshall, Where's the Antenna?, THE COLUMBIAN, Dec. 18, 1996, at E1 (San Francisco, California); Medina Applies Another Hold on Cell Towers, SEATTLE TIMES, Oct. 29, 1996 (Medina, Washington); James A. Merolla, Zoning Board Gets an Earful from Tower Opponents, PROVIDENCE J. BULL., Oct. 30, 1996, at 3C (Richmond, Rhode Island); Barbara Miller, 57 Residents Sign a Petition Opposing Cell Telephone Tower, HARRISBURG PATRIOT, Jan. 28, 1997, at 7 (Palmyra, Pennsylvania); Doug Nurse, Towers Loom as Upcoming Problem, TAMPA TRIB., Jan. 5, 1997, at 1 (Lakeland, Florida); Tom O'Neill, Here's the Church, Here's the (Fake) Steeple - It's a Cell Tower, and Much Debated, CINCINNATI ENQUIRER, Jan. 20, 1997, at B1 (Cincinnati, Ohio); Paul Rogers, Emerson Considers Cell Tower Ordinance Law Would Limit Height, Placement, THE RECORD, Jan. 14, 1997, at L01 (Emerson, New Jersey); Shaun Sutner, Towers Loom Large - Cell Service Riles Neighbors, SUNDAY TELEGRAM, Dec. 29, 1996, at B1 (Worcester, Massachusetts); Towers of Power, KNOXVILLE NEWS-SENTINEL, June 16, 1996 (Knoxville, Tennessee); Pat Wiedenkeller, In Hempstead: Bloc Aims to Trim Plan for Tower, NEWSDAY, Sept. 15, 1996 (Malverne, New York).

8. 47 U.S.C. § 253(a) (1996).

9. 47 U.S.C. § 253(b) (1996).

10. CONTEL CELLULAR, INC., 1994 ANNUAL REPORT 6.

11. Id. at 6-9.

12. See, e.g., Clarke Canfield, Analysts Say the Number of Telecommunications Towers in Maine and the Nation Could Quadruple in the Next Five Years. That Explosive Growth Challenges the Abilities of Some Towns to Balance Land Use Concerns with the Needs of the Industry, Creating a High-Tech, High-Wire Act, PORTLAND PRESS HERALD, Oct. 16, 1997, at 4E.

13. See id.

14. See id.

15. See supra note 7.

16. See Susan Lorde Martin, Communities and Telecommunications Corporations: Rethinking the Rules for Zoning Variances, 33 AM. BUS. L.J. 235, 241-44 (1995).

17. Antennas commonly have 100 watts of power or less, compared to the 5000 watts of an AM radio station, the 50,000 watts of an FM station or more than 300,000 watts of a television station. See Candice Millard, Mending Fences, CELLULAR BUS., Dec. 1, 1996 at 40; Barbara Miller, 57 Residents Sign a Petition Opposing Cell Telephone Tower, HARRISBURG PATRIOT, Jan. 28, 1997, at 7. The strength of the magnetic fields created by these power sources varies with the distance from the source so that, for example, a hair dryer could have a magnetic field of 60 to 20,000 milliGauss when it is 1.2 inches away, but only 1 to 70 milliGauss when it is 12 inches away. See Sharon Tomecek, What Are Electromagnetic Fields?, REAL ESTATE TODAY, Nov./Dec. 1992, at 19.

18. See, e.g., Nancy Wertheimer & Edward Leeper, Electrical Wiring Configurations and Childhood Cancer, 109 AMER. J. OF EPIDEMIOLOGY 273-84 (1979); L. Tomenius, 50-Hz Electromagnetic Environment and the Incidence of Childhood Tumors in Stockholm County, 7 BIOELECTROMAGNETICS 191-207 (1986); D.A. Savitz et al., Magnetic Field Exposure From Electric Appliances and Childhood Cancer, 131 AMER. J. OF EPIDEMIOLOGY 763-73 (1990); J.R. Wilkins & Ruth Koutras, Paternal Occupation and Brain Cancer in Offspring: A Mortality-Based Case-Control Study, 14 AMER. J. OF IND. MED. 299-318 (1988); K.T.S. Yao, Microwave Radiation-Induced Chromosomal Aberrations in Corneal Epithelium of Chinese Hamsters, 69 J. OF HEREDITY 409-12 (1978). See also ELLEN SUGARMAN, WARNING: THE ELECTRICITY AROUND YOU MAY BE HAZARDOUS TO YOUR HEALTH, app. A (1992) (containing extensive list of major studies).

But see William J. Broad, Cancer Fear Is Unfounded, Physicists Say, N.Y. TIMES, May 14, 1995, § 1, at 19 (reporting that American Physical Society, world's largest group of physicists, asserts that it can find no evidence that EMFs from power lines cause cancer).

The most recent reported study, conducted over a five-year period by the National Cancer Institute and the University of Minnesota, found no evidence that electromagnetic fields increase the risk of acquiring childhood leukemia. See Robert Langreth, No Evidence Is Found Linking Leukemia In Children and Electromagnetic Fields, WALL ST. J., July 3, 1997, at B6. There are, however, some scientists who still think there may be a relationship between electromagnetic fields and some kinds of cancer. Id.

19. See Soraya Sarhaddi Nelson, AT&T Antennae a Tough Cell, NEWSDAY, Jan. 22, 1997, at A23.

20. See Joe Catalano, Similar Houses, Different Prices? It's Time to Look at the Externals, NEWSDAY, Mar. 14, 1997, at D2; see also Martin, supra note 16, at note 59 and accompanying text.

21. Catalano, supra note 20, at D2; see also Martin, supra note 16, at note 59 and accompanying text.

22. See e.g. Evans v. Shore Communications, Inc., 685 A.2d 454, 462 (Md. Ct. Spec. App. 1996); Westinghouse Elec. Corp. v. Council of Township, 686 A.2d 905, 908 (Pa. Commw. Ct. 1996).

The towers can range in height from 55 feet to 500 feet. See, e.g., Tina Allen, Ice Skating Center Gets Planning Commission OK, LAS VEGAS REV.-J., June 25, 1997, at 3AA (55 feet); Jerry Fallstrom, Officials to Take Up Tower Plan Some Residents Say the Telecommunications Structures Make Surrounding Property Values Plummet, ORLANDO SENTINEL, June 24, 1997, at 1 (200 feet); Helen Bennett Harvey, Plans for Tower Anger Residents, NEW HAVEN REGISTER, Sept. 20, 1996, at C1 (120 feet, 180 feet, 185 feet); John J. Keller, Bad Reception - With Cellular Towers Sprouting All Over, Towns Begin to Rebel, WALL STREET JOURNAL, July 2, 1996, at A1 (125 feet); Jeff Ostrowski, Rentin' the Roof Market for Cell Towers Has Nowhere to Go but Up, S. FLA. BUS. J., Aug. 29, 1997, at 1 (500 feet); Peter Pochna, Freeport Planners Continue Work on Tower Limits A Moratorium on New Towers Will Be Extended While Restrictions Are Being Written, PORTLAND PRESS HERALD, Sept. 4, 1997, at 1B (300 feet). Towers are usually four-sided, lattice-style towers or monopoles, that is, solid single poles. See, e.g. Fallstrom at 1.

23. See Martin, supra note 16, at 245-46.

24. See, e.g., Oldham County Planning & Zoning Comm'n v. Courier Communications Corp., 722 S.W.2d 904 (Ky. Ct. App. 1987); Nynex Mobile Communications Co. v. Hazlet Township Zoning Bd. of Adjustment, 648 A.2d 724 (N.J. Sup. Ct. App. Div. 1994); Kingwood Township Volunteer Fire Co. Number One v. Board of Adjustment, 640 A.2d 356 (N.J. Sup. Ct. Law Div. 1993); New Brunswick Cellular Telephone Co. v. Old Bridge Township Planning Bd., 636 A.2d 588 (N.J. Sup. Ct. Law Div. 1993); Cellular Telephone Co. v. Rosenberg, 624 N.E.2d 990 (N.Y. 1993); Cellular Telephone Co. v. Village of Tarrytown, 624 N.Y.S.2d 170 (App. Div. 1995); Cellular Telephone Co. v. Meyer, 607 N.Y.S.2d 81 (App. Div. 1994).

But see Awacs, Inc. v. Warwick Township Zoning Hearing Bd., 656 A.2d 608 (Pa. 1995) (affirming Zoning Hearing Board's denial of telecommunications company's application for variance).

25. See, e.g., Payne v. Taylor, 578 N.Y.S.2d 327 (App. Div. 1991); Jaffee v. RCI Corp., 500 N.Y.S.2d 427 (App. Div. 1986); Hawk v. Zoning Hearing Bd., 618 A.2d 1087 (Pa. Commw. Ct. 1992); Hilltop Terrace Homeowner's Assoc. v. Island County, 891 P.2d 29 (Wash. 1995).

26. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.

27. 47 U.S.C. § 253(a) (1996).

28. 141 CONG. REC. H8269 (daily ed. Aug. 2, 1995) (statements of Reps. Moran, Clyburn, and Goss).

29. Id. (statement of Rep. Goss)

30. 47 U.S.C. § 253(b) (1996).

31. The FCC was created to execute and enforce federal law related to communications in order to make "communication by wire and radio" available to everyone in the nation rapidly, efficiently, and at reasonable prices. 47 U.S.C. § 151 (1934) (amended 1996).

32. 47 U.S.C. § 253(d) (1996).

33. 47 U.S.C. § 332(a) (1996).

34. 47 U.S.C. § 332(c)(3)(A) (1996).

35. 47 U.S.C. § 332(c)(7)(A) (1996).

36. 47 U.S.C. § 332(c)(7)(B)(i)(I) & (II) (1996).

37. 47 U.S.C. § 332(c)(7)(B)(ii) & (iii) (1996).

38. 47 U.S.C. § 332(c)(7)(B)(v) (1996).

39. 47 U.S.C. § 332(c)(7)(B)(iv) (1996). FCC limits on exposure to electromagnetic emissions are based on a measure of the rate of radiofrequency energy absorption, the specific absorption rate (SAR). The agency has set those limits at four watts per kilogram based on American National Standards Institute (ANSI) guidelines set in 1982. 47 C.F.R. pts. 1, 2, 15, 24, 97 (1996).

One complaint from critics is that the FCC allows providers to "self-certify" that they meet the standards. Evelyn Gilbert, Lethal Lampposts? Cell Phone Antennas May Threaten Your Health, VILLAGE VOICE, Aug. 26, 1997, at 24. Another complaint is that the standards have been set too low. See generally, PAUL BRODEUR, THE GREAT POWER-LINE COVER-UP: HOW THE UTILITIES AND THE GOVERNMENT ARE TRYING TO HIDE THE CANCER HAZARD POSED BY ELECTROMAGNETIC FIELDS (1993).

40. 47 U.S.C. § 332(c)(7)(B)(v) (1996). The Cellular Telecommunications Industry Association (CTIA) has petitioned the FCC for a declaratory ruling that prohibits local governments from creating moratoria on the siting of telecommunications facilities. Comments on the petition were due on September 11, 1997 and replies were due on September 26, 1997. 16 FCC DAILY DIG. 145 (July 29, 1997).

41. S. Rep. No. 104-230, at 208 (1996).

42. Some states have indicated a desire to do such research and to regulate facilities that emit electromagnetic radiation based on the results of that research. See, e.g., Letter from Michele C. Farquhar, Chief, Wireless Telecommunications Bureau of the FCC, to Thomas E. Wheeler, President and CEO, Cellular Telecommunications Industry Association (Jan. 13, 1997).

43. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 61 Fed. Reg. 41,006, 41,007 (1996) (to be codified at 47 C.F.R. pts. 1, 2, 15, 24, 97).

44. See, e.g., Farquhar, supra note 42; Sprint Spectrum v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996).

45. See Public Comment Invited; Commission Seeks Comment on Petition for Declaratory Ruling of the Cellular Telecommunications Industry Association, 62 Fed. Reg. 4047 (Jan. 28, 1997).

46. Sprint Spectrum v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996). Other cases involving disputes about the siting of telecommunications towers and referring to the Telecommunications Act of 1996 include Paging, Inc. v. Board of Zoning Appeal, 957 F. Supp. 805 (W.D. Va. 1997); BellSouth Mobility, Inc. v. Gwinnett County, Georgia, 944 F. Supp. 923 (N.D. Ga. 1996); Crown Communications v. Zoning Hearing Bd., 679 A.2d 271 (Pa. Commw. Ct. 1996); Westel-Milwaukee Co., Inc. v. Walworth County, 556 N.W.2d 107 (Wis. Ct. App. 1996).

47. City of Medina, 924 F. Supp. at 1040. Enacting a temporary moratorium on the grant of permission to erect telecommunications towers is a technique that is growing in popularity with local governments. CTIA reports that nationwide there were 226 moratoria in effect at the end of June, 1997, a thirty-four percent increase from April. Karissa Booney, Getting Over It, WIRELESS WORLD, Oct. 30, 1997, at 1. See, e.g., Ted Cohen, Kennebunk OKs Rules for Cellular Towers - A Unanimous Vote at a Special Town Meeting Finally Gives the Town Control Over the Location and Height of the Towers, PORTLAND PRESS HERALD, Oct. 22, 1997, at 1B (voters in Arundel, Maine considering six-month moratorium); Gary Gerew, Board Towers Over Antenna Moratorium - A Proposal to Ban Installing Cellular Phone Towers Will Be the Topic of a Public Hearing Nov. 10, THE POST-STANDARD (Syracuse, N.Y.), Oct. 23, 1997, at 3; Catherine Kozak, Colington Tower Fails to Win OK, VIRGINIAN-PILOT & LEDGER-STAR, Oct. 15, 1997, at B1 (moratorium to be proposed in Dare County, Va. in Nov.; moratorium imposed in Currituck County, Va.).

48. City of Medina, 924 F. Supp. at 1037.

49. Id.

50. Id. at 1037-38.

51. Id.

52. Id. at 1038.

53. Id.

54. Id. at 1040.

55. Id.

56. Id.

57. Id.

58. 944 F. Supp. 923 (N.D. Ga. 1996).

59. Id. at 928.

60. Id. at 924.

61. Id. at 925-26.

62. Id. at 926.

63. Id. at 928.

64. Id. at 929.

65. Id.

66. Id.

67. For a description of a rural community's dispute with a large telecommunications corporation over the latter's construction of a 300-foot tower, see Martin, supra note 16, at 250-55 (occurring before the enactment of the Telecommunications Act). The community reached a successful compromise with the company probably because it mounted a more sophisticated campaign (that included written supporting materials from experts), id. at 252, than those described in the Georgia case and the Illinois, and New Mexico cases, infra.

68. 963 F. Supp. 732 (C.D. Ill. 1997).

69. Id. at 737-38.

70. Id. at 738.

71. Id. at 739.

72. Id. at 745.

73. Id.

74. Id. at 739.

75. Id.

76. Id. at 745 (citing 47 U.S.C. § 332(c)(7)(B)(iv)).

77. 47 U.S.C. § 332(c)(7)(B)(iii) (1996).

78. 963 F. Supp. at 743.

79. Id.

80. Id. at 747.

81. Id.

82. Id.

83. Western PCS II Corp. v. Extraterritorial Zoning Auth. of the City and County of Santa Fe, 957 F. Supp. 1230, 1233-34 (D.N.M. 1997), notice of appeal filed, (10th Cir. Mar. 25, 1997). The city of Santa Fe, New Mexico has filed a notice of its intent to appeal the district court's writ of mandamus instructing the Extraterritorial Zoning Authority to approve the special exception request to mount telecommunication antennas on an existing water tank.

84. Id. at 1236.

85. Id. at 1237

86. Id. at 1236.

87. Id. at 1234-37.

88. Westel-Milwaukee Co. v. Walworth County, 556 N.W.2d 107, 107-110 (Wis. Ct. App. 1996).

89. One case that might support the latter is Crown Communications v. Zoning Hearing Bd., 679 A.2d 271 (Pa. Commw. Ct. 1996). In this case Crown's application to erect a 375-foot telecommunications tower was denied by the local zoning board. Id. at 272. Crown appealed and the lower court overturned the denial. Id. The appellate court reinstated the denial. Id. at 275. The appellate court's decision was based on a state law issue, and the court concluded that Crown had waived its challenge based on the Telecommunications Act. Id. at 275 n. 11. The court noted, however, that had it considered Crown's argument that the zoning board violated section 332(c)(7)(B)(i) of the Act, which disallows any state or local regulation that has "the effect of prohibiting the provision of personal wireless services," it still would have upheld the denial of Crown's application. Id. The court gave no explanation for its gratuitous remark.

90. See, e.g., Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 61 Fed. Reg. 45,476, 45,489 (1996) (to be codified at 47 C.F.R. pts. 1, 20, 51, 90).

91. See, e.g., 141 CONG. REC. S7881-02, S7886 (daily ed. June 7, 1995) (statement of Sen. Pressler); 142 CONG. REC. H1149 (daily ed. Feb. 1, 1996) (statement of Rep. Fields).

92. This is not the only area in which provisions of the Telecommunications Act of 1996 have resulted in disadvantages to the public that were probably not considered by many members of Congress. For example, the Act's emphasis on competition is causing a substantial increase in residential phone bills, a result probably not foreseen or desired by Congress. See 143 CONG. REC. S2048 (daily ed. Mar. 10, 1997) (statement of Sen. Dorgan noting his dismay that consumers are losers because "the major titans in the telecommunications industry battled for advantage under this act" and the result is going to be increases in residential telephone rates); Mark Landler, Rising Phone Bills Are Likely Result of Deregulation, N.Y. TIMES, Mar. 30, 1997, at 1.

93. See Use Creativity, Education to Tackle Tower Issues, Insiders Say, ADVANCED WIRELESS COMMUNICATIONS, Jan. 4, 1995.

94. See Candice S. Millard, Mending Fences, CELLULAR BUS., Dec. 1, 1996 at 40 (noting that price of palm tree tower could be twice as much as that of traditional tower).

95. See Renee Saunders, Target: Total Coverage, TELEPHONY, Feb. 24, 1997 at 14.

96. See Rhonda Wickham and Shawn Steward, Sizzling Products, CELLULAR BUS., Jan. 1, 1995, at 22.

97. See Millard, supra note 95.

98. Id.

99. 47 U.S.C. § 332(c)(7)(B)(i)(I) & (II), (ii) (1996).

100. Sandra J. Grove, Developing a Tower Strategy, CELLULAR BUS., May 1, 1995, at 27