Plaintiff Horvath Towers III, LLC, specializes in the ownership, operation, construction, and maintenance of wireless communication towers. Plaintiff regularly leases real estate on which it would construct towers, and then sublet tower usage to FCC-licensed personal wireless service providers such as Limitless Wireless and Verizon Wireless. Section 10.2.2.1 of the Montoursville Borough Zoning Ordinance authorized communication towers by “Conditional Use” when operated for “Government Use only.” Other towers, such as the proposed cell tower here, would be restricted to two of Montoursville’s ten zoning districts. Following Defendant Zoning Hearing Board of Montoursville’s denial of Plaintiff’s application, Plaintiff asserted: a violation of Section 704 of the Telecommunications Act of 1996 (“TCA”) for lack of “substantial evidence” supporting Defendant’s decision; a violation of Section 704’s prohibition against “unreasonable discrimination” among providers of functionally equivalent services; and an appeal under state law concerning Defendant’s zoning decision.
The court first noted that the “substantial evidence” provision, codified at 47 U.S.C. § 332(c)(7)(B)(iii), required that any decision by a state or local governing body be both in writing and supported by “substantial evidence” within the written record. Here, because the entire factual record upon which Defendant based its decision was not presented, the court could not make the determination sought by Defendant concerning the sufficiency of evidence upon which it based its denial of Plaintiff’s application. Additionally, through its Complaint Plaintiff satisfied the Twombly–Iqbal plausibility requirements concerning both its de facto exclusionary and constitutional challenges. Defendant’s Motion to Dismiss this claim was therefore denied as to Plaintiff’s TCA claim under the “substantial evidence” provision. Because the court found plausibility concerning Plaintiff’s TCA “substantial evidence” claim, the same result was logically required for Plaintiff’s analogous state-law based zoning appeal.
Next, Plaintiff claimed that Defendant discriminated, within the zoning district of the proposed tower, between “Government Use Only” and “Non Government Use Only” cell towers. However, the court found that this factual allegation failed to indicate that Plaintiff had been discriminated against in favor of a provider of a functionally equivalent service. Accordingly, the court held that when viewing all allegations of its complaint in a light most favorable, Plaintiff failed to allege a plausible claim under the TCA “unreasonable discrimination” provision.
Horvath Towers III, LLC v Zoning Hearing Board of Montoursville Borough, 2016 WL 6087860 (MD PA 10/18/2016)