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.

Consent judgment in TCA case broader than necessary to remedy violation

by Gary Taylor

St. Charles Tower, Inc. v. Kurtz
(Federal 8th Circuit Court of Appeals, June 28, 2011)

St. Charles Tower filed an application for a conditional use permit to build a cell tower in Franklin County, Missouri.  The planning commission denied the application and the applicant appealed the decision to the Board of Adjustment.  The ZBA denied the appeal, providing only the following sentence to justify its decision: “The proposed location of the tower would primarily serve areas outside of Franklin County, not providing a adequate amount of benefit to Franklin County residents.”  The applicant then filed suit against the ZBA and Franklin County claiming that the decision violated the Federal Telecommunications Act (TCA).  Prior to trial the parties agreed to a consent judgment that required the issuance of the conditional use permit, as well as any other permits required for the applicant to begin construction.  After the district court approved the consent judgment, the trustee of the homeowners association that opposed the construction of the tower (Kurtz) sought to intervene in the litigation in order to challenge the consent judgment on the grounds that it violated state law.  The district court granted the motion to intervene but denied the the motion to amend or alter the consent judgment.  Kurtz appealed to the Eighth Circuit.

The Eighth Circuit reversed the district court.  The Eighth Circuit found that the consent judgment remedy – compelling the issuance of a conditional use permit – violated state law because state law specifies the sole method for issuing a conditional use permit is through hearing procedures and a four-fifths vote of the ZBA.  St. Charles Tower and the county argued that the consent judgment was permissible because its provisions were the minimum necessary to correct a violation of federal law (the TCA).  The Eighth Circuit disagreed, noting that the inclusion of the provisions that compelled the issuance of other permits was not  “narrowly tailored so as to infringe state sovereignty as minimally as possible.”

FCC refuses to reconsider cell tower shot clock ruling

by Gary Taylor

On November 18, 2009 the Federal Communications Commission (FCC) issued a declaratory ruling that established a “shot clock” for local zoning authorities acting on wireless facilities siting applications. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Previous blogposts that explain the FCC ruling in greater detail can be found here.

On December 17, 2009 a Petition requesting reconsideration of the rules was filed with the FCC by the American Planning Association, National Association of Counties, the National League of Cities and others; however, on August 4, 2010 the FCC denied the Petition for Reconsideration, leaving the November 2009 order unchanged.  The August 4 order can be accessed here.

Minutes of meeting sufficient record for denial of cell tower application

by Allison Arends

Helcher v. Dearborn County (IN) Board of Zoning Appeals
(Federal Seventh Circuit Court of Appeals, February 9, 2010)

Cincinnati Bell wireless (Bell) applied for a conditional use permit to construct a cell phone tower on agriculturally zoned property owned by Dan and Merry Helcher. Bell was advised that in order to meet the Dearborn Zoning Ordinance they had to abide specifically by sections 3 and 15 of the Ordinance, which require Bell to obtain a conditional use permit and avoid causing a “negative impact on the character and environment of the County and to protect the health, safety and welfare of the public.” When the Zoning board met to review the application neighboring property owners objected to the permit, providing evidence that the tower would damage property values, cause possible hazards and dangers for children, and would be incompatible with the appearance and character of the area. As a result, the board denied Bell the conditional use permit. Despite several disagreements regarding the content of the minutes taken during the meeting, they were later approved as “revised minutes” by the board.

Bell and Helcher filed a complaint against the board arguing that the board violated the Telecommunications Act of 1996 for three reasons:  (1) the approved minutes of the public hearing did not constitute an adequate written record, (2) the board’s decision was not based on substantial evidence contained in a written record as required by 47 U.S.C 332 (c) (B) (iii), (3) the zoning board’s decisions unreasonably discriminated against Bell, and (4) the board’s decision had the effect of denying the provision of wireless communication services. The district court granted summary judgment to the defendants and Bell and Helcher appealed.

The court first addressed the plaintiff’s claim that the minutes were not an adequate form of written record.  According to the Telecommunications Act, “[a]ny 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 recognized that there are many different interpretations of what is considered an adequate written record. Therefore the court defined the purpose of the “in writing” requirement as a provision which “allows meaningful judicial review of local government actions relating to telecommunications towers.” With this purpose in mind, the court adopted the standard used by the First and Sixth Circuit Courts of Appeals, which explains that the written record must, “contain sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” As a result the court found the minutes adequate because it provided the decision of the board, supplied the reasons underlying the board’s decision, and it allowed for meaningful judicial review of the decision.  The court found that the minutes clearly delineated the issues that arose with the application, provided evidence of both sides, illustrated the concerns of the applicants the residents of the area and the board members, as well as cited the specific provisions of the ordinance that the voting members found were not met by the application.

Bell’s second claim originated from a section of the Telecommunications Act that states, “any decision by a state or local government to deny a request to place, construct, or modify a personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” In response the court applied the substantial evidence test, and found that the board’s decision to reject the permit on aesthetic grounds was supported by substantial evidence that included propagation maps, mock-ups of the proposed tower, a report on the aesthetic values at stake, public commentary and a presentation from the wireless carrier.

The court found that the board did not discriminate against Bell noting that there was an absence of evidence to show that the board had treated another functionally equivalent provider more favorably than Bell. Finally, the court found that the board’s denial of the permit was not denying the provision of wireless communication services, owing to the fact that there was no evidence that Bell had adequately investigated, to the board’s satisfaction, other kinds of zoned land that would be more compatible with the construction of the tower. The court found that, “so long as the service provider has not investigated thoroughly the possibility of other viable alternatives, the denial of an individual permit does not ‘prohibit or have the effect of prohibiting the provision of personal wireless services.’

Update on FCC shot clock ruling on cell towers

by Gary Taylor

The FCC’s November order establishing a “shot clock” under which state and local governments must review and act upon tower siting requests (link to previous blog posts here) has been challenged by several government entities.  Five groups – The National League of Cities, the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC and requested that the FCC stay the effective date of the new shot clock rules.  If the FCC does not stay the entire decision, however, the groups alternatively request that the FCC stay the requirement that state and local governments have 30 days to notify applicants that their filings are incomplete. The groups argue that the FCC exceeded its authority under Section 332(c)(7) of the 1996 Telecommunications Act when it created 30-day rule. The groups’ requests have been opposed by cell tower and wireless communications associations.

On January 14 the city of Arlington, Texas appealed the FCC’s decision to the United States Court of Appeals for the Fifth Circuit. According to the city, the FCC exceeded its authority when it adopted the shot clock requirements, and the FCC’s decision is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law.  A number of cities, most recently including Portland Oregon two days ago, have joined Arlington in the lawsuit.

More on FCC’s shot-clock ruling on cell tower decisions

by Gary Taylor

The International Municipal Lawyers Association (IMLA) has assembled materials addressing the FCC’s recent ruling placing time limits on a city/county acting on a cell tower application (I previously blogged on the ruling itself – available here).  The Varnum law firm has developed a presentation on the ruling, what it means for local governments, and strategies for compliance, that is available here.  In addition, the firm of Miller and Van Eaton has drafted a memorandum – available here – that also discusses the possible consequences of the ruling.

FCC creates “shot clock” for cell tower/antenna applications

by Gary Taylor

On November 18 the Federal Communications Commission (FCC) issued a declaratory ruling that could have a significant impact on the way some communities process applications for cell towers and antennas. The ruling establishes a “shot clock” for local zoning authorities acting on wireless facilities siting applications. The Federal Telecommunications Act (FTA) requires local governments to act on applications within a “reasonable period of time.” The order sets presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Failure of the local government to issue a decision within the appropriate time frame will constitute “failure to act,” which will allow the applicant to bring a lawsuit. The “shot clock” is rebuttable in court, meaning that the local government may produce evidence that the delay was reasonable under the circumstances. Of course the local government will bear the costs of litigation (at least initially) to defend the reasonableness of the delay. The rebuttable presumption is a less-drastic alternative than what was requested by the wireless service industry, which had pressed for an automatic grant of a requested permit if the applicable deadline was not met.

The ruling also determined that where a local government denies a personal wireless service facility siting application solely because that service is available from another provider, such a denial violates the section of the FTA that “prohibits, or has the effect of prohibiting the provision of personal wireless services.” The FCC was convinced of the need for such a determination by evidence produced by the wireless industry that cities and counties were using a “one is enough” rationale for denying applications for towers and antennas.

The FCC declaratory ruling issued on November 18 can be accessed here.  The FCC’s news release about the ruling is here.

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