Posted by: Patricia Salkin | July 16, 2016

10th Circuit Court of Appeals Affirms that Wireless Company Established a Significant Coverage Gap Under TCA

AT & T applied for a special use permit, a height variance, and a site development plan to install a 65–foot monopole cell phone tower and a small equipment shelter in a 30′ x 30′ compound on a commercial parcel in the Village of Corrales. The Village’s Planning and Zoning Commission denied the special use permit and, accordingly, did not act on the variance request or the proposed site development plan. AT & T appealed to the Village Council, which also denied the special use permit. The Council concluded that AT & T failed to show that the proposed facility would fill a significant gap in coverage or that the desired improvements could not be achieved by placing the facility on higher terrain or using a shorter tower on the selected site. After village denied AT & T a special permit to construct the phone tower, the company brought suit against village for prohibiting personal wireless services in violation of the Telecommunications Act (TCA). The United States District Court for the District of New Mexico granted summary judgment in favor of AT & T and the Village appealed.

On appeal, the Village contended that the district court’s consideration of the unreliability of coverage, or “gradations of service”, ran afoul of case law recognizing that holes in coverage or “dead spots” that are limited in number or size do not constitute a significant gap in service. The court disagreed, finding that a number of courts had concluded that the lack of reliable in-building or in-vehicle service was a legitimate consideration in determining whether a coverage gap is significant. Here, the undisputed evidence in this case establishes that in-vehicle coverage was unreliable for approximately two miles along the Village’s main road, and in-building coverage was unreliable around the proposed site in a ring that is more than a mile across. Furthermore, the Village admitted in its answer to the complaint, that the selected site “is located in a populated and well-traveled area.”

The court likewise held that the district court did not err by failing to take account of the lack of data regarding the number of AT & T customers potentially affected or the number of dropped calls. While these were among the factors a court could consider, the court found it sufficient that the district court considered the lack of reliable in-building coverage in a residential zone, unreliable in-vehicle coverage along the Village’s main road, and the absence of a dominant server in the area, to be of prime importance. Lastly, as to the inquiry into whether a 65–foot tower was the least intrusive means of remedying the coverage gap, the court found there was ample evidence showing that a lower site would be underused, which would require additional towers in the area, and that a 65–foot tower would provide the area with a dominant server and eliminate interference with establishing and maintaining calls. Accordingly, the district court’s granting of summary judgment in favor of AT & T was affirmed.

AT&T Mobility Services, LLC v Village of Corrales, 642 Fed. Appx. 886 (10 Cir. CA 3/8/2016)

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