Posted by: Patricia Salkin | September 30, 2016

Fed. Dist. Court in TN Finds City Violated Telecommunications Act

Plaintiffs applied to the Knoxville/Knox County Metropolitan Planning Commission (“MPC”) to install a wireless telecommunications tower. The MPC approved the application and a group of citizens appealed that decision to the City who reversed. On appeal, Plaintiffs sought a declaratory judgment that the City’s reversal of the MPC’s decision and denial of the plaintiffs’ application was a violation of the  Telecommunications Act.

At the outset, the court noted that the Sixth Circuit adopted a two-part test to evaluate whether the denial of an application amounts to an “effective prohibition” claim: there must be a showing of a significant gap in service coverage; and some inquiry into the feasibility of alternative facilities or site locations. Plaintiffs contended that they provided sufficient evidence of a significant gap in coverage by submission of propagation maps and a description of the coverage gap by T-Mobile’s RF Engineer. Because the uncontradicted evidence demonstrated that the proposed facility would ameliorate a current significant gap in T-Mobile service, the court found plaintiffs met their burden as to the first prong of an “effective prohibition” claim.

Plaintiffs next contended that they considered over a dozen alternatives, including existing structures, raw land alternatives, and all of the alternative sites suggested by the neighborhood residents. The materials submitted to MPC contained a list of seven alternative site evaluations and the reasons why those sites were deemed unsuitable The City’s speculative and unsupported assertion that other, feasible alternatives existed was deemed insufficient to refute the plaintiffs’ showing that there were no less intrusive alternatives to the proposed facility. Because plaintiffs met their burden, the Court founds that the City’s decision had “the effect of prohibiting the provision of personal wireless services” in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), and plaintiffs were entitled to judgment as a matter of law on this claim.

Branch Towers, LLC v. City of Knoxville, 3:15-CV-00487, 2016 WL 3747600 (E.D. Tenn. July 11, 2016)

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