The federal Telecommunications Act of 1996 (codified in various sections of 15 U.S.C.A., 18 U.S.C.A. and 47 U.S.C.A.) authorized the Federal Communications Commission to license carriers to provide wireless telecommunications services. Among other things, this act provides that neither the states nor any local government shall prohibit or effectively prohibit the provision of personal wireless services (47 U.S.C.A. 332(c)(7)(A)).
State and federal decisions interpreting the TCA have gone in a number of directions, sometimes conflicting. In the case of Cell v. Zoning Bd. of Adjustment, 172 N.J. 75 (2002), the New Jersey Supreme Court reversed a zoning board decision which had denied a carrier the right to construct a 152-foot monopole. In so doing, the court made clear that while the TCA poses an absolute bar to local agency conduct amounting to regulatory prohibition, the act does reserve to the local agency the right to deny an application for a particular siting of a cellular service facility where the application fails to satisfy the criteria of the Municipal Land Use Law of 1975, N.J.S.A. 40:55D-1 to 129. The standard of judicial review, as set forth in the TCA, is whether the decision of a zoning board is predicated on substantial evidence.
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