Omnipoint Holdings, a wireless carrier and T-Mobile’s wholly-owned subsidiary, sought to build a wireless communications tower in Cranston, Rhode Island, to remedy a significant gap it found in coverage. The proposed 90-foot tower, disguised as a flagpole, was not in conformance with the City’s zoning ordinances because, given its height, it was too close to the site’s southern border. Both Onmipoint and the property owner jointly applied for, and were denied, a variance and special use permit by the City’s Zoning Board of Review. The board did not give reasons, but the planning commission denied on the basis that Omnipoint did not “demonstrate[] that existing nearby facilities c[ould not] accommodate the service need.” When Omnipoint sought federal court review of the denial, the City and zoning board countered that the zoning board’s decision was not a “final action” for the purposes of Section 332(c)(7)(B) of the Telecommunications Act of 1996 (TCA), because limited state court review was available. Rhode Island law permitted parties to petition the state superior court for limited review of a zoning board’s decision; thus, the zoning board’s decision could not be a “final action” creating federal jurisdiction under § 332(c)(7)(B)(v). The district court rejected the argument and granted judgment for the plaintiff. It found that the plaintiff had established that a significant gap in coverage existed; that the only feasible site available to the plaintiff was the site identified for the 90-foot tower; and that the City’s denial of the permits constituted an effective prohibition of service in violation of § 332(c)(7)(B)(i)(II) of the TCA.
On an issue of first impression in the circuit courts, the First Circuit held that the zoning board’s decision was a “final action” for the purposes of § 332(c)(7)(B)(v) of the TCA, and also rejected the City’s claims that the court erred in finding that the zoning board’s decision “ha[d] the effect of prohibiting the provision of personal wireless services” pursuant to Section 332(c)(7)(B)(i)(II). Although the TCA did not define “final action,” a “final action” by a “local government or any instrumentality thereof” meant one that marked “the consummation of the instrumentality’s decisionmaking process.” There was no dispute that the zoning board was a discrete “instrumentality” of the City, separate and distinct from the Rhode Island Superior Court; further, the parties agreed that the zoning board had concluded its decisionmaking process before that instrumentality and could take no further action. Thus, the zoning board’s decision was final and Omnipoint did not need to seek judicial review under state law. Moreover, adopting the interpretation urged by the City would frustrate the TCA’s overall statutory scheme and purpose: “speedily deploying telecommunications” and the “prompt resolution of disputes under the Act.” The district court’s finding that there was a significant gap in coverage was quite reasonable, and that court did not err in finding that the carrier had no other feasible alternatives.
Omnipoint Holdings v. City of Cranston, 586 F.3d 38 (C.A. 1st Cir., RI, 11/3/2009).
The opinion can be accessed at:
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-2491P.01A
This abstract appears in the November 18, 2009 IMLA E-News. For more information about IMLA visit www.imla.org
