How Much Is “Substantial Evidence” and How Big Is a “Significant Gap”?: The Telecommunications Attorney Full Employment Act

The late U.S. Supreme Court Justice Antonin Scalia described the Telecommunications Act of 1996 as “a model of ambiguity or indeed even self-contradiction.” Legal wags have also described the Act as the Telecommunications Attorney Full Employment Act. Twenty years after the Act became law, it is still being interpreted by courts all over the country and costing taxpayers millions of dollars as local governments defend their telecom decisions in lawsuits. The Act’s basic notion was to allow local zoning authorities to maintain their control over their territories with a few new limitations that would encourage cell phone service companies to provide access to everyone. This Article focuses on two of the Act’s limitations on local governments when they want to deny a request to construct a cell phone tower. The Act requires such a denial to be supported by substantial evidence, and it prohibits local governments from preventing a telecommunications company from closing a significant gap in cell phone service. The Article concludes that Congress should amend the Act to reflect a changed telecommunications landscape and direct the FCC to issue rules that clarify the contentious issues. All stakeholders should recognize that alternative conflict resolution techniques initiated when a tower project is first considered could eliminate costly litigation and benefit all stakeholders