Posted by: Patricia Salkin | August 13, 2009

City Violated Telecommunications Act by Failing to Rebut Evidence as to Lack of Alternative Sites

In an effort to expand its coverage in the City of Anacortes (“City”), T-Mobile applied for a special use permit (“SUP”) to construct an additional wireless telecommunications facility (“WCF”) which would consist of a 116-foot monopole antenna for cellular telephone service.  Following a denial of its application by the Planning Commission, T-Mobile appealed to the City Council. The City Council denied the application on the basis that the “facility would have a commercial appearance and would detract from the residential character and appearance of the surrounding neighborhood.” The Council further noted that the proposal to locate the communications facility tower at the chosen location was not established as being the “least intrusive” means in which to expand coverage.  

T-Mobile appealed the denial to the United States District Court for the Western District of Washington and was granted summary judgment. The court held that T-Mobile’s proposal was the least intrusive means to close a gap in its wireless service and that the City’s denial violated the Telecommunications Act of 1996. The City appealed, and United States Court of Appeals for the Ninth Circuit affirmed the district court’s ruling. The court held that although the city’s denial of special use permit was supported by substantial evidence, the district court properly concluded that the city’s denial of the application violated §332(c)(7)(B) of the Telecommunications Act because the City failed to rebut T-Mobile’s evidence.

The Court of Appeals first considered whether the City’s denial was supported by substantial evidence. The applicable zoning code provides that the City may consider several factors when considering a special use permit including “the proximity of the tower to residential structures” and “the surrounding topography.” The Court ruled that the evidence from residents that the monopole would have a negative impact on the residential property and would obstruct scenic views was adequate to support the City’s denial of the application under the code. 

The Court then considered whether the denial violates § 332(c) of the Telecommunications Act. Applying the “least intrusive means” standard, the court explained that the standard requires the provider to “show that the manner in which it proposes to fill the significant gap in services is the least intrusive on the values that the denial sought to serve.” T-Mobile provided a detailed permit application that contained an analysis of eighteen alternative sites. The City, on the other hand, failed to rebut T-Mobile’s prima facie showing that no other location was available and feasible. When a locality rejects a prima facie showing, it must show that there are some potentially available and technologically feasible alternatives. In stating that there was merely a possibility of alternative locations, the City failed to demonstrate any viable alternatives. The City’s denial of the application therefore violated the Telecommunications Act and the court affirmed the district court’s grant of summary judgment. 

T-Mobile USA Inc. v. City of Anacortes, 2009 WL 2138980 (C.A.9 (Wash. July 20, 2009)).

The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2009/07/20/08-35493.pdf


Responses

  1. very nice info
    it is usefull for us

    thanks
    http://telecomandinternet.com/?p=42


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