Posted by: Patricia Salkin | September 26, 2020

MA Appeals Court Affirms Order Requiring City to Grant Permit in Verizon in TCA Challenge

This post was authored by Jessica Fox-Ievoli, Touro Law Center

Cellco Partnership d/b/a Verizon Wireless (Verizon) brought suit against the City of Peabody for alleged violations of the Federal Telecommunications Act (TCA), based on the city council’s denial of Verizon’s special permit application to construct a facility at 161 Lynn Street in order to fill alleged gaps in Verizon’s coverage network. Verizon alleged that the Council’s denial of the permit to build the wireless facility violated the TCA because it acted as an effective prohibition on personal wireless services. 47 U.S.C. § 332(c)(7)(B)(i)(II). Verizon appealed the decision of the city council to the Land Court, who granted summary judgement for Verizon and ordered the city council to grant the permit. The City of Peabody appealed.

The TCA provides that “the regulation of the placement…of personal wireless services facilities by any state or local government…shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). When there is a claim by a carrier that an individual denial is action as an effective prohibition of wireless services, the carrier has the burden of showing (1) that a ‘significant gap’ in coverage exists and (2) whether alternatives to the carrier’s proposed solution to that gap mean that there is no effective prohibition. Omnipoint Holding, Inc. v. Cranston, 586 F.3d 38, 48 (1st Cir. 2009). The carrier must show that alternative options were investigated before deciding that there is no other feasible plan.

The city alleged that the Peabody Municipal Light Plant’s (PMLP) plan to construct a distributed antenna system (DAS) would erase the need for Verizon’s facility. The city solely relied on a PMLP affidavit to argue that there were genuine issues of material fact as to the economic feasibility of the DAS proposal. The Court determined that there were no genuine issues of material fact based on the affidavit’s lack of specific terms regarding the proposal, the City of Peabody admitted that Verizon requested a price proposal seven time over a two month and PMLP never provided one. The Court determined that the cost comparison contained in the PMLP affidavit were unsupported conclusory statements that were insufficient to defeat a motion for summary judgement. The Court also stated that it was “mindful” of Verizon’s attempts to find another feasible option. Verizon had considered multiple locations, and other options, such as a DAS, and had done so multiple times. Accordingly, the court affirmed the Land Court’s decision granting summary judgement to Verizon an ordering the city council to grant the permit to Verizon.

Cellco Partnership d/b/a Verizon Wireless v. City of Peabody, MA, 2020 WL 5667189 (Mass.App.Ct 9/24/20).

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