In granting summary judgment in favor of the Township, the Eastern District Court of Pennsylvania held that the denial of a variance to construct a personal wireless facility did not result in a violation of the prohibition of services section in The Telecommunications Act § 332(c)(7)(B)(i)(II).[TCA] The Court also found that the Ordinance was neither de facto exclusionary nor in violation of the Pennsylvania State Constitution.
In order to address what it believed to be a significant gap in services, AT&T wanted construct a one hundred and eighty foot monopole and associated equipment shed on a leased parcel of property in the Township. During public hearings held by the zoning hearing board, AT&T presented evidence that a gap in service did exist and that the proposed tower would be the least intrusive means of filling the gap. The Board ultimately voted to deny the application for “fail[ure] to show the required criteria for variance relief required under applicable law” including the fact that the proposed tower would alter the essential character of the rural neighborhood. The Board also found that AT&T failed to prove their allegation that ordinance was de facto exclusionary as applied to wireless telecommunication facilities, since the ordinance permits by special exception communication towers in two zoning districts and has not prohibited nor had the effect of prohibiting, wireless service throughout the Township. Furthermore, the Board concluded that AT&T failed to show a significant gap existed.
AT&T appealed the decision of the Board, alleging the prohibition of personal wireless services violated the TCA and the Pennsylvania Municipalities Code. They alleged that the Township’s lack of substantial evidence supporting denial of the variance was in violation of the TCA and that the ordinance was de facto exclusionary. On a summary judgment motion, the Court ruled for the Township on the variance and substantial evidence claims.
In a non-jury trial both parties entered into evidence surveys taken of the area to judge how much the cellular service needed to be improved with the proposed communications tower. AT&T took the “position that [none] . . . carriers servicing the Township adequately serv[ed] the area” which would be covered by the tower. The Township presented testimony that there was no significant gap in coverage in the Township for Nextel, AT&T, and Sprint and even claimed that AT&T had the strongest signal in the area along with Nextel.
As to the prohibition of services claim, the Court held that while the TCA preserves the authority of local governments to regulate land use within their municipality, it also places limits on the ability of local authorities to regulate and control the expansion of telecommunications technologies. To establish a violation of the TCA in the Third Circuit, AT&T must prove that (1) there existed “a significant gap in the ability of remote users to access the national telephone network and (2) that the proposed facility is the least intrusive means of remedying the gap.” The Court noted that as to the first prong, AT&T had to show “evidence that the area the new facility [would] serve [was] not already served by another provider.” Further, under Third Circuit precedent, “a significant gap in wireless services exists ‘when a remote user of those services is unable either to connect with the land-based national telephone network, or to maintain connection capable of supporting a reasonably uninterrupted communication.’” The Court said that it is relevant to consider how many people the gap affects to be considered a significant gap, finding that to constitute a significant gap, between 1.96% and five to seven percent of calls made by each provider had to be failed calls.
The Court held that AT&T failed to establish its method was the industry standard for reliable service and instead relied on the data provided by the Township. The Township’s data showed that only .71% of AT&T’s customers, 1.37% of Sprint’s customers, and 4.23% of Nextel’s customers experienced “service problems while traveling through the Township” which was well below the percentage required to constitute a significant gap. Therefore, there was no significant gap in service violation.
The Court similarly dismissed the exclusionary zoning claim since at the time the application was denied, towers were permitted in two districts and communication antennas attached or mounted on existing public utility transmission towers, existing communication towers and existing buildings or structures and communications equipment buildings are also permitted uses in every one of the zoning districts. Further, antennas were permitted to exceed the maximum height limitations by up to twenty feet. Lastly, the Court held that AT&T failed to show that the personal wireless services needs of the Township’s residents were not being served as a significant gap in service did not exist.
New Cingular Wireless PCS, LLC v. Zoning Hearing Board of Weisenberg, 2009 WL 3127756 (E.D. Pa. 9/29/2009).
The opinion can be accessed at: http://www.paed.uscourts.gov/documents/opinions/09d1205p.pdf
