Posted by: Patricia Salkin | June 2, 2015

Fed. Dist. Court in FL Finds Telecommunications Act’s Gap in Service and In Writing Provisions Were Not Violated by Denial of Tower Application

PI Telecom Infrastructure, LLC challenged the City Jacksonville, Florida’s denial of its application to construct a wireless communications facility (more commonly known as a cell tower) as violative of the Federal Telecommunications Act of 1996. The proposed tower was a 150–foot camouflaged unipole cell tower at a location in the San Marco neighborhood. On April 1, 2014, PI Telecom submitted its application to build the tower with the Jacksonville Planning and Development Department. Sections 656.1501–.1517 of the Jacksonville Ordinance Code (the “Tower Ordinance”) set out the applicable regulations for the location, design, and operation of cell towers within the City. The stated goals of the regulations included “protecting the natural features and aesthetic character of the City … with special attention to residential neighborhoods, public parks, transportation view corridors, historic districts, historic landmarks, and environmentally sensitive lands” and “minimizing the adverse visual and aesthetic impact” of cell towers while “accommodating the growing demand for wireless communication services ….“ PI Telecom filed suit under the Act, alleging that substantial evidence shows that the Commission’s decision has the effect of “prohibiting the provision of personal wireless services”, that the Tower Ordinance had the same prohibitive effect, and that the Commission’s decision was not supported by substantial evidence.

At the outset the court noted that although the Eleventh Circuit had not yet addressed the issue, other circuits have held that “a locality can run afoul of the Act’s ‘effective prohibition’ clause if it revents a wireless provider from closing a ‘significant gap’ in service coverage.” Here, the area of weak or no service in this case extended over several blocks, which the Court did not view as an isolated dead spot. In selecting the design for the tower, however, PI Telecom did pursue the least intrusive design possible that would still serve its purposes. The Commission’s subjective concern about the “potential adverse impact” of the proposed tower on viewsheds from Alexandria Oaks Park was based on objective photographic and other evidence that the tower would visually intrude on the park, and therefore was not found to have violated the Telecommunications Act.

As to the “in writing” requirement, the court determined that the City had met the requirement of the Act because the City did not issue a blanket denial order, but identified the reasons for denial as that “[t]he proposed tower does not comply with the tower siting and design standards and performance standards of Chapter 656, Part 15, Subpart A, Ordinance Code” and that “[t]he proposed tower design is not compatible with the existing contiguous uses, or zoning and is not compatible with the general character and aesthetics of the surrounding neighborhood, or area.” Furthermore, PI Telecom had access to the written transcript of the Commission meeting well in advance of the deadline to seek judicial review of the City’s denial. The transcript was finished a mere six days after the Commission meeting and issuance of the final order, and was available for twenty-six days before PI Telecom had to file suit. The City’s motion for summary judgment was therefore granted.

PI Telecom Infrastructure v City of Jacksonville, 2015 WL 2169962 (MD FL 5/8/2015)

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