Posted by: Patricia Salkin | May 20, 2014

First Circuit Remands Case Pending Establishment of Tower Height in Order to Determine Whether a Violation of the Telecommunications Act Occurred.

The appellant Green Mountain Realty Corp. (“GMR”) originally wanted to build a 140–foot cell phone tower in Milton, Massachusetts. The tower’s purpose was to fill a significant gap in the wireless coverage provided by T–Mobile’s and Metro PCS’s networks. Milton’s Board of Appeals (“BOA”) and Conservation Commission (“MCC”), the two local entities whose approval GMR needed before it could begin construction, rejected the 140–foot proposed tower. GMR asserted in district court that the denials were preempted by federal law. The district court granted summary judgment to Milton, and found that the BOA’s and MCC’s decisions were supported by substantial evidence in the administrative record, and GMR appealed.

The First Circuit was concerned about “multiple rounds of decisions” since the record demonstrated that the local boards would be compelled to permit construction of a cell phone tower on the Site. Because there was no genuine dispute that T–Mobile U.S. had a significant coverage gap in that area, that the Site is the only feasible location to construct a new tower, and that the tower must be somewhere between 90 and 120 feet high in order to fill in that gap. The court noted that the resolution of the tower’s height was a question for the district court, rather than the BOA or the MCC; to allow these entities to do so, would “not be in accordance with the text or spirit of the Telecommunications Act”. The case was therefore remanded to the district court for the material fact of the tower’s height to be resolved.

Green Mountain Realty Corp. v Leonard, 750 F.3d 30 (1st Cir. CA 4/23/2014)

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