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Andrew Campanelli, Esq.

Effective Prohibition

March 30, 2021

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Effective Prohibition

So, one of the issues they want me to discuss today is the issue of the effective prohibition

under the Telecommunications Act and what local governments can and cannot do in light

of the recent FCC interpretive orders and the City of Portland case. It's probably one of the

hottest issues in Telecommunications Act cases right now.

To give you an accurate answer, I have to first talk a little bit about the Telecommunications

Act and Congress's intent, because it's critical to any understanding of exactly what is at

work here. So back in 1996, when Congress enacted the Telecommunications Act of 1996,

Congress actually considered giving the FCC the power to control the placement of wireless

facilities. At the end of the day, what Congress did was almost the opposite. The very first

paragraph of C-7 of the act is entitled C-7-A. It's entitled General Authority. And in that

provision, they preserved what they described as the general authority of state and local

governments to control the siting placement, installation, construction and modification of

wireless facilities.

So, the general rule is local governments have the power to control the placement of

wireless facilities, which would include cell towers or macro cells, small cells and or

Distributed Antenna Systems, DAS. So that's the general rule. That's never changed since

1996. Then they proceeded to adopt C-7-B, which imposes five, what I call procedural

limitations upon the ability of governments to regulate the placement of wireless facilities.

Now, one of those restrictions, if you will, is the prohibition language. And what it says

basically is local governments cannot prohibit or effectively prohibit the provision of

personal wireless services.

Not surprisingly, immediately when this was enacted, site developers and carriers started

filing lawsuits every time an application to build a new cell-tower, wireless facility was

denied by a local government. They'd say, aha, you're effectively prohibiting us from

providing personal wireless service. And the Telecommunications Act was less than crystal

clear as to what constitutes an effective prohibition. Theoretically, a one effective

prohibition would occur if someone was to say, OK, you can't put a cell tower in a residential

district and then classify every property in the entire county as residential. That's an effect of

prohibition. Can't do that.

But it took only two years from 1996 the enactment for these lawsuits to get up to the

United States Circuit Courts of Appeals. For those of you who aren't familiar with the federal

court system, it essentially consists of three levels, the district court level or the trial court

level where all federal lawsuits start. Then if you want to appeal from a district court, you

[go] up to the United States Circuit Court of Appeals. There are 13 circuit courts that cover

the entire country –– and the only court above them is the United States Supreme Court.

It only took two years for this effective prohibition litigation to reach the Circuit Courts of

Appeals and the Circuit Courts of Appeals. Each adopted their own tests, which are fairly

consistent across the country. And what they said was this for an applicant to claim that a

denial of their particular application for a particular installation is tantamount to an effective

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Andrew Campanelli, Esq.

Effective Prohibition

March 30, 2021

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effects, but it's going to reduce property values, have an adverse aesthetic impact, probably

won't have it, won't have a sufficiently safe fall zone, things like that. So federal courts have

since 1996 recognized this balancing.

And so, when you're talking about an effective prohibition, federal courts keep that in mind.

When does something constitute an effective prohibition? And we'll talk about what they

have to prove and things like that. So, for twenty-four years, that's what the Fourth Circuit

says. You've got to prove you have a gap in service and there's no alternative site that can fill

the gap.

Now, with the within the context of 5G rollout, you're not really worried so much about the

carriers as much as site developers. For those of you who don't know, site development

companies are companies that don't provide any personal wireless service. You can't get a

telephone contract with a site developer there in the gauge in the business of building

wireless infrastructure for profit. They build facilities and then they lease space or capacity

on these facilities to wireless carriers like your AT&T, Verizon, your T-Mobile. They don't look

for the best place to put towers, meaning the least intrusive locations. They look for the

cheapest locations.

When they come in right now -- under in the 5G rollout, they are looking to build wireless

facilities where there is no 5G coverage. They're building it in advance so that if and when a

carrier wants to go into an area for 5G coverage, then they already have the infrastructure.

Now, as you might suspect, you can't have a gap in coverage if you don't have any coverage.

They can't claim site developers that they have a gap in coverage because they don't provide

any wireless service. And if they go in the area where there is no 5G coverage because

nobody's offering it, again, they can't claim that it's an effective provision because you can't

have a cap in coverage that doesn't exist.

So, the wireless industry went to the FCC for help because they knew they couldn't pass this

test of all the circuit courts. And lo and behold, the FCC doing what they do best, cater to the

wireless industry. And what they did is they said in September of 2018, we're going to come

up, we're going to reinterpret the effective prohibition language of the Telecommunications

Act, not because the federal law was changed. The Telecommunications Act has not been

changed. They simply said we're going to come up with a new interpretation because

Congress has not amended the Telecommunications Act to keep up with the changes in

technology.

Now, it's critical to understand this is not the first time this has happened. The FCC tried to

do this once before, and that was in the context of broadband. The FCC initially, when

broadband came into existence, the FCC said, well, we read the Telecommunications Act is

covering personal wireless services. It doesn't cover broadband. Then when the wireless

industry uses their clout with the FCC, the FCC decided to reinterpret this effective

prohibition or actually reinterpret the language of the Telecommunications Act to say no, we

reinterpreted and it does cover broadband.

And so, a case came to a district court in New York in the 2nd Circuit, and a federal judge

basically knocked down the FCC and said, listen, we applaud the FCC. We understand that