6th Circuit provides good overview of the state of cell tower regulation in the federal courts on its way to its own decison

by Gary Taylor

T-Mobile Central v. West Bloomfield Charter Township
(Federal Sixth Circuit Court of Appeals, August 21, 2012.)

T-Mobile proposed to build a cellular tower in an area of West Bloomfield Township, Michigan, that had a gap in coverage. The facility contained an existing 50-foot pole, which T-Mobile wanted to replace with a 90-foot pole disguised to look like a pine tree with antennas fashioned as branches (a monopine).  The site was not located within the two cellular tower overlay zones identified on the Township’s zoning map where such facilities are permitted by right.  T-Mobile thus sought a special use permit.  At the hearing, T-Mobile presented testimony and evidence demonstrating its need to fill a gap in coverage, justification for the selection of that site and the height of the pole, an explanation of how the facility would provide for collocating equipment for other cellular carriers, and a representation that the facility would have a minimal visual impact. Several members of the public  spoke in opposition to granting the special land use. The areas to the north, east, and west of the proposed site were residential subdivisions, and there was a daycare center to the south. At the hearing, the Township Planning Commission passed a motion to recommend to the Board of Trustees of the Township that T-Mobile’s application should be denied.  At the Trustees’ hearing T-Mobile contended that 90 feet would be the minimum height necessary to collocate two other carriers.  More people spoke in opposition.  The Township denied T-Mobile’s application. T-Mobile brought suit, alleging that the denial of the application violated the Telecommunications Act, 47 U.S.C. § 332 et seq. The district court granted partial summary judgment in favor of T-Mobile, and the Township appealed to the 6th Circuit Court of Appeals.

47 U.S.C. § 332(c)(7)(B)(iii) provides: “Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”  The Court of Appeals found the relevant question to be “substantial evidence of what?”  In other words, if there is a denial of an application to build a wireless facility, what must the substantial evidence in the record show in order to avoid a violation of the federal code? The Court chose to follow a decision from the 9th Circuit, stating that this standard “requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law.” The Court “may not overturn the Board’s decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence.”  Nonetheless, the 6th Circuit proceeded to find that none of the five reasons for denial stated by the Board of Trustees were supported by substantial evidence; rather, each was simply an expression of NIMBYism or lay opinion contradicted by expert opinion.

47 U.S.C. § 332(c)(7)(B)(i)(II),  provides that “[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”  Does the denial of a single application from T-Mobile constitute an effective prohibition? This was a question of first impression for the 6th Circuit.  It again looked to other federal circuit courts for guidance.  The 4th Circuit has held that only a general, blanket ban on the construction of all new wireless facilities would constitute an impermissible prohibition of wireless services; however, the large majority of circuits have rejected this approach.  The 6th Circuit rejected it as well, stating that such a reading makes the “effective prohibition” language meaningless if an it can only be triggered by an actual ban.  The 6th Circuit chose instead to follow the two-part test of the 9th Circuit: there must be (1) a showing of a ‘significant gap’ in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.”

As for the first part of this test – whether whether the “significant gap” in service focuses on the coverage of the applicant provider (T-Mobile in this case) or whether service by any other provider (Verizon, AT&T, Sprint, etc.) is sufficient – the 6th Circuit again found a split among federal circuit courts.  The 2nd,  3rd and 4th Circuits have held that no “significant gap” exists if any “one provider” is able to serve the gap area in question. On the other hand, the 1st and 9th Circuits have rejected the “one provider” rule and adopted a standard that considers whether “a provider is prevented from filling a significant gap in its own service coverage.  In 2009, the FCC issued a Declaratory Ruling that effectively supported the approach of the First and Ninth Circuits.  The 6th Circuit chose to follow the FCC’s lead.  Finding that T-Mobile’s position that it suffered a significant gap in coverage to be well-supported by documentary evidence and testimony from RF engineers,  it concluded that the denial of T-Mobile’s application “prevented [T-Mobile] from filling a significant gap in its own service coverage.”

As for the second part of the test (alternative facilities) The 2nd, 3rd and 9th Circuits require the provider to show that ‘‘the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.’’  The 1st and 7th Circuits, by contrast, require a showing that there are ‘‘no alternative sites which would solve the problem.’’  The 6th Circuit chose to fall in line with the 2nd, 3rd and 9th “It is considerably more flexible than the ‘no viable alternatives’ standard, as [under the other standard] a carrier could endlessly have to search for different, marginally better alternatives. Indeed, in this case the Township would have had T-Mobile search for alternatives indefinitely.”  The Court found that T-Mobile satisfied its burden under the “least intrusive” standard, having investigated a number of other specific options but determining they would have been “significantly more intrusive to the values of the community.”

Having determined that the Township’s decision had the “the effect of prohibiting the provision of personal wireless services,” thus violating 47 U.S.C. § 332(c)(7)(B)(i)(II), the 6th Circuit affirmed the decision of the district court.

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