The N.C. Court of Appeals has ruled that cellular telephone companies qualify as public utilities. The decision comes in a case involving a county’s attempt to prohibit the construction of a cell phone tower.
In 1997, BellSouth Mobility applied for a permit to put up a cell-phone tower in Henderson County. The parcel it wanted to build on was zoned as a “low-density residential district,” a classification that also allows for “public utilities” to build public utility stations. The ordinance did not specifically define either term.
The Henderson County zoning administrator granted BellSouth Mobility a permit and the company soon erected its cell phone tower. Several local residents, however, protested the zoning administrator’s decision. The Henderson County Zoning Board of Adjustment ultimately ruled against BellSouth Mobility, finding that it was not a public utility and that cell-phone towers were not public utility stations. A Superior Court judge upheld the board’s decision. The ruling would ordinarily have required that the cell phone tower be disassembled, however, it was put on hold while BellSouth Mobility appealed.
In a decision Nov. 15, the N.C. Court of Appeals rejected the board’s decision.
“…We hold that a cellular telephone company is a ‘public utility,’” Judge Sanford Steelman wrote for the court.
“In addition, a cellular telephone tower which provides cellular telephone service is a ‘public utility station’ under Section 603.01 of the Henderson County Zoning Ordinance. The Board erred as a matter of law in holding BellSouth was not a public utility and by concluding that the cellular tower was not a ‘public utility station.’”
The appeals court listed a number of factors that influenced its decision.
“BellSouth provides a telephone service, which has traditionally been recognized as a public utility. Wireless telecommunication providers are subject to governmental regulation. They must obtain a license from the Federal Communications Commission (FCC). In addition, mobile telephone service is regulated as a ‘common carrier’ by the FCC, and they must provide their service to the public in a reasonable and non-discriminatory manner, 47 U.S.C. § 332(c)(1)(A), just like land-line telephone companies.”
Court of Appeals’ decisions are controlling interpretations of state law unless overruled by the N.C. Supreme Court.
The case is BellSouth Carolinas, PCS, L.P. v. Henderson Cty. Bd. of Adjust., (05-31). http://www.aoc.state.nc.us/www/public/coa/opinions/2005/050031-1.htm
Michael Lowrey is an associate editor of Carolina Journal.