Posted by: Patricia Salkin | February 13, 2020

Fed. Dist. Court in MS Holds Substantial Evidence Supported County’s Finding that Provider Failed to Establish Need for Proposed Cell Tower

This post was authored by Matthew Loescher, Esq.

Verizon filed the instant action under the Communications Act of 1934, as amended by the Telecommunications Act of 1996, alleging that defendant Desoto County, acting through its Board of Supervisors, violated federal law by denying it permission to construct the wireless telecommunications tower at issue in this case. Verizon alleged that a gap existed in its cell phone coverage in the area, which required the building of an additional wireless tower. In furtherance of this, Verizon filed a conditional use application to build a one hundred ninety-foot monopole wireless communications tower in western Desoto County. The Desoto County Board of Supervisors held a public hearing on Verizon’s application, and unanimously voted to deny the application.
The court first found the expert report which Verizon relied on, prepared by its engineer Gil Tomlinson, was written in vague terms of “offloading Verizon’s existing sites” as a result of “heavy usage stemming from the new Verizon Unlimited Data Plan.”

Additionally, Verizon did not offer a single case suggesting that, if a provider made a business decision to offer an Unlimited Data Plan, and suffered congestion as a result, then it could use the TCA as a means of forcing local governments to approve, over the objections from residents, new cell phone towers which accommodate that business decision. Accordingly, the court held that the County’s finding that Verizon failed to demonstrate a sufficient need for the project was supported by substantial evidence.
Verizon next contended that the County lacked substantial evidence in support of its conclusion that there would be a significant negative aesthetic effect upon the community. The record reflected that four residents testified at the hearing regarding their aesthetics concerns about the project. As the County was faced with extremely weak proof regarding the need for the project, the court found that it was appropriate to give some weight to the aesthetics concerns expressed by these residents.

Lastly, the court turned to the county’s finding that, “the construction of the tower will adversely affect the drainage in this area.” The court’s view of the proof on this issue is similar to its view of the aesthetics issue, as it found the strength of the proof which the County should reasonably require regarding the potential harm of the project was appropriately considered in light of the strength of Verizon’s own proof regarding the need for the project. Specifically, Verizon did not present any expert testimony of its own that these concerns were ill-founded. As Verizon failed to demonstrate a “substantial gap” in coverage under federal standards, the County’s decision to reject the project in this case was supported by substantial evidence.
Verizon Wireless Tennessee Partnership v. Desoto County, 419 F.Supp.3d 950 (ND MS 12/16/2019)

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