Posted by: Patricia Salkin | March 28, 2012

4th Circuit Court of Appeals Upholds Denial of Permit for Wireless Facility Finding no Violation of the TCA

T-Mobile had sought approval from Fairfax County, Virginia officials to construct a wireless service facility on a utility pole which already housed similar equipment for two other competing wireless companies – AT&T and Verizon.  The proposal, which involved increasing the height of the pole from 100 to 110 feet and installing a cylindrical configuration of antennas at the top, required two approvals – a determination from the Fairfax County Planning Commission that the project was in line with Fairfax County’s Comprehensive Plan and a special exception to the Fairfax County Zoning Ordinance from the Board of Supervisors which certified that the proposed facility would be “harmonious with and not adversely affect the use” of nearby properties.  

The project was opposed by members of the Evermay residential subdivision, which stood to be the most visually impacted by the installation, at a late 2009 public hearing on the matter.  Subsequent to the hearing, the Planning Commission determined that the project would have significant and adverse visual impacts and that it would not accord with the community’s comprehensive plan.  Soon after, the Board denied T-Mobile’s application for a special exception.  

T-Mobile then filed suit in federal court against the municipality, alleging violations of the Telecommunications Act of 1996 which, among other things, bars local regulation of personal wireless facilities in a way that “unreasonably discriminates among providers of functionally equivalent services” or “prohibits or has the effect of prohibiting the provision of personal wireless services.”  T-Mobile claimed the Board’s denial was an effective prohibition on the company’s attempted provision of wireless service to the nearby area, in violation of § 332(c)(7)(B)(i)(II) of the TCA.  In addition, T-Mobile argued that the Board had unreasonably discriminated against it, after treating similar carriers more favorably, violating another provision of the Act at § 332(c)(7)(B)(i)(I).  The district court found that the Board did not violate either provision of the Act.  T-Mobile appealed. 

On appeal, T-Mobile urged the Fourth Circuit to reevaluate the standards it used in these types of cases based on a 2009 ruling by the FCC on similar issues involving the Act.  T-Mobile claimed that the Fourth Circuit has only found an effective prohibition of the act where there has been a blanket ban on wireless deployment, however it claimed the FCC decision created a new standard which allowed a single application denial to constitute a prohibition if the circumstances surrounding the processing of those types of applications indicated it was nearly impossible to get one approved.  However, the Fourth Circuit rejected T-Mobile’s interpretation of its own precedent, noting that previous case law had involved similar considerations as those T-Mobile claimed were contained in the FCC decision, which itself was somewhat limited to its own facts, according to the court.  The court then methodically outlined the process by which it does an analysis of effective prohibitions under the Act, and applied that method to the T-Mobile case. 

The court announced that a plaintiff could prevail on a claim of effective prohibition under the Act by showing either that the municipality or state maintained a “general policy that essentially guarantees rejection of all wireless facility applications” or by showing that “the denial of an application for one particular site” would be “tantamount to a general prohibition of service” because of an “effective absence of coverage” and a “lack of reasonable alternative sites to provide coverage.”  While a blanket ban of wireless service would be the most obvious violation, the court said that each case should be analyzed on its own facts to determine whether the circumstances indicate a general prohibition. 

T-Mobile already provided service in the area, but was looking to install the facility to improve the in-vehicle and in-building coverage there, which it claimed was unreliable and unavailable in some zones.  The company had investigated alternative sites, but claimed these sites were “technically infeasible, practically unavailable, or inconsistent with the County’s comprehensive plan.”  However, the court questioned how rigorously these sites had been analyzed, since the exhibits analyzing the feasibility of alternative sites included “very general conclusions” and assertions that the locations “would not close the significant gap in T-Mobile’s coverage” with little else to support these assertions.  Further, the viability one alternative site in Langley Fork Park had not been thoroughly investigated, according to the court.  For these reasons, the court felt that T-Mobile had failed to meet its heavy burden of showing that it lacked any reasonably alternatives to provide service and had failed to show that any future attempt to gain Board approval for service improvements would be futile.  Thus, the court held that T-Mobile had failed to show the Board’s denial of its application amounted to an effective prohibition on wireless service under the Act. 

On the second issue of unreasonable discrimination between providers, T-Mobile claimed the municipality had treated the company differently than two of its competitors – AT&T and Verizon – each of which already had wireless installations on the same pole.  Previously, Verizon had obtained approval to increase the height of the pole from 90 to 100 feet to add its equipment, and AT&T had been unopposed in its attempts to add equipment to the pole below that of Verizon’s.  

Despite urgings from T-Mobile to adopt tests used in other circuits, the court reiterated the framework it uses for determining unreasonable discrimination under the Act as that first articulated in AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423 (4th Cir. 1998).  In that case, the court had refused to adopt a specific test, but instead created a framework under which it looks to the language of the Act and the evidence supporting the local body’s decision to determine whether there was unreasonable discrimination or whether the local body had based its decision on legitimate concerns involving traditional zoning principles. 

In this case, the court looked at the fact that there had been significant opposition voiced by community members about the visual impacts of the project.  There was also a lack of evidence suggesting “ill will” toward T-Mobile particularly or the company’s services.  Rather, the Board appeared to have based much of its decision on the aesthetic impacts of the project, which are traditional zoning considerations.  The T-Mobile installation would have made the pole taller than any other transmission pole in that area, and the antennas planned for the top would have added technological components residents would have had to see.  The court also felt that T-Mobile’s proposal was different than the other installations made by AT&T and Verizon.  For one, the T-Mobile project required a special exception from the Board, while the other two proposals did not.  The municipality was not necessarily targeting this company for negative treatment on a project that was as invasive or less invasive than the other two companies’ installations.  Rather, the court said that municipalities have the flexibility to treat proposals differently “when there is a difference in the visual impact or aesthetic character of the individual facilities.” 

Because the Board’s decision was based on legitimate traditional zoning principals, and because the facilities installed by AT&T and Verizon were distinguishable, the court held that T-Mobile had failed to prove unreasonable discrimination between providers.  Therefore, the court upheld the decision of the lower court that the Board had not unreasonably discriminated against T-Mobile.  

T-Moble Northeast LLC v. Fairfax County Board of Supervisors, 2012 WL 664504 (4th Cir. 3/1/12)

The opinion can be accessed to:  http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0301/DOC-312754A1.pdf


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