Fed. Dist. Court in OH Denies Telecommunications Act Claims Due to Lack of Evidence that Company Building the Tower Was a Public Utility

This post was authored by Matthew Loeser, Esq.

STC Towers, LLC, planned to build telecommunications towers in Ottawa Township and Napoleon Township. Objections to the project arose in Ottawa Township, and the Board of Trustees sent STC written notice that it had to comply with the township’s zoning code. The Zoning Inspector, Nicholas Rettig, objected to STC’s project, and he issued a stop-work order forbidding further construction in Napoleon township. In this case, STC argued that it was entitled to summary judgment on its claims that the townships had no power to insist that STC build the proposed towers in compliance with the townships’ zoning codes. Specifically, STC claimed the Trustees of both townships did not, as O.R.C. § 519.211(B)(4)(a) required, request that their respective Fiscal Officer send a written notice advising STC that it was subject to the zoning code; and neither Fiscal Officer sent such a notice to STC.

The trustees argued that the aforementioned limits on their power to regulate telecommunications towers applied only if the entity building the tower qualified as a “public utility.” While not claiming that it was a public utility, STC emphasized that it “acts as an agent for New Par (dba Verizon Wireless),” which had been classified as a public utility. The company further contended that the statute did not require STC to show that it was a public utility. The court found the Trustees were required to act in accordance with § 519.211 if the telecommunications tower at issue was proposed to be owned or principally used by a public utility engaged in the provision of telecommunications services. Nevertheless, the court held that the Trustees and not STC were not entitled to summary judgment on the “public utility” issue, as STC failed to provide any evidence that would permit a reasonable fact-finder to conclude that New Par was a “public utility” for purposes of § 519.211.

STC and New Par also moved for summary judgment on their claims under the Telecommunications Act. Since STC and New Par failed to establish that the towers were “proposed to be… for the principal use of a public utility,” the court found that the townships were free to regulate the towers without regard to the other provisions of § 519.211(B). Additionally, STC and New Par failed to cite any evidence in the record that would permit a fact-finder to conclude that the townships’ conduct amounted to an effective prohibition of wireless service. Since the companies’ briefs did not address the merits of their claims in any way, the court had no basis to conclude that there was a significant gap in service coverage or that the manner in which STC and New Par proposed to fill the significant gap in service was the least intrusive on the values that the denial sought to serve.

Ottawa Township Board of Trustees, Plaintiff v. New Par, d/b/a Verizon Wireless, 2019 WL 1923331 (ND Ohio 4/30/2019)