T-Mobile, USA, Inc., a Delaware Corporation; et al., v. City of Anacortes, Washington

The U.S. Court of Appeals for the Ninth Circuit recently issued an opinion in favor of a wireless carrier in T-Mobile, USA, Inc., a Delaware Corporation; et al., v. City of Anacortes, Washington.  The City appealed the District Court’s determination that the City’s denial of an application by T-Mobile USA, Inc. to build a 116-foot monopole violated the provisions of the Telecommunications Act of 1996, 47 U.S.C. Section 332(c)(7)(B).

The District Court found that T-Mobile’s proposal was the least intrusive means to close a significant gap in its wireless service in the City, and that the City’s denial was not supported by substantial evidence.  The Ninth Circuit determined that, even though the District Court did not have the benefit of its opinion in Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc) (“Sprint II”), and therefore failed to recognize that the City’s denial of the application was supported by substantial evidence, the District Court nevertheless properly concluded that the City’s denial of the application violated Section 332(c)(7)(B) because the City failed to rebut T-Mobile’s showing that the denial of the application amounted to an effective prohibition of wireless services.

Facts

In September 2006, in order to close a “service gap” and to expand its coverage, T-Mobile applied to the City for a Special Use Permit to construct a monopole at a site owned by a church. The application analyzed eighteen site alternatives and proposed the construction of a monopole with three antennas at the top.

The City Planning Commission denied the application, and T-Mobile appealed to the City Council. After a hearing, the City Council denied the application.   The Council based its decision on written findings of fact and conclusions of law, explaining that the monopole would:

·         Have a commercial appearance.

·         Detract from the residential character and appearance of the surrounding neighborhood.

·         Not be compatible with the character and appearance of the existing development in the vicinity, primarily comprised of single-family residences.

·         Negatively impact the views from single-family residences in the vicinity of the proposed site.

The City also noted that the predominant land use in the vicinity of the proposed site was residential and that the “existing vegetation would not completely screen the proposed tower and the tower would be taller than the existing trees.”  The City also noted that T-Mobile had not established that its proposal was the least intrusive on the values that the denial of the application seeks to serve.

The City determined that at least four alternative single sites were potentially acceptable to provide coverage as required by T-Mobile, and at least two two-site alternatives would work from a radio frequency coverage perspective. These alternative sites were either on commercially or industrially zoned property, or would provide a site for a proposed facility that would not be in such close proximity to residences.

The City reasoned that if T-Mobile constructed a personal wireless service facility at one or more of the alternate single sites or two-site alternatives, a significant gap in T-Mobile’s service coverage would no longer exist, even though that coverage would not be identical to that provided by the monopole at the church site.

In 2007, T-Mobile filed a complaint for declaratory and injunctive relief in the District Court for the Western District of Washington, claiming violations of the following sections of the TCA:

·         253 – Local zoning decisions “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”

·         332 - Local zoning decision must be “supported by substantial evidence.”

In 2008, the District Court granted T-Mobile summary judgment on its claim that the Anacortes Municipal Code, as it related to T-Mobile’s application, was preempted by Section 253. The District Court based its ruling on the Ninth Circuit’s opinion in Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th Cir. 2007) (“Sprint I”).  The District Court ordered the City to issue a permit allowing T-Mobile to construct the monopole. It also noted that in light of its resolution of the Section 253 preemption issue, it did not need to address arguments concerning Section 332.

Shortly after the District Court’s order, the Ninth Circuit agreed to rehear Sprint I en banc. The City then asked the District Court to reconsider its order and to grant a stay of enforcement pending the resolution of the en banc proceedings in Sprint I.  T-Mobile opposed the City’s requests and also asked the District Court to rule on its claims under Section 332.

On July 18, 2008, the District Court denied the City’s requests for relief and ruled in favor of T-Mobile on its request for relief under Section 332. The District Court held that T-Mobile had shown that its proposal was the “least intrusive” means to close the significant gap, based on its good-faith effort to identify less-intrusive alternatives. The City’s conclusion to the contrary was not supported by substantial evidence. Because the City prevented T-Mobile from closing a significant service gap through the “least intrusive” means available, the City’s decision has the effect of prohibiting personal wireless services in violation of Section 332.

In 2008, the Ninth Circuit issued its opinion in Sprint II. The en banc panel disagreed with the decision in Sprint I and with the court’s prior opinion in City of Auburn v. Qwest Corp., and joined “the Eighth Circuit in holding that ‘a plaintiff suing a municipality under Section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.’ ”

The parties then stipulated that Sprint II was controlling as to T-Mobile’s claim under Section 253, and agreed that the portion of the appeal concerning Section 253 could be remanded to the District Court to allow T-Mobile to withdraw its claim under Section 253.  The Ninth Circuit issued an order effectuating the parties’ stipulation.

Thus, only the District Court’s grant of relief to T-Mobile pursuant to Section 332 remained pending before the Ninth Circuit.

In coming up with a resolution, the Ninth Circuit considered the purposes behind the TCA.  In enacting the TCA, Congress expressed two sometimes contradictory purposes. First, it expressed its intent “to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and (to) encourage the rapid deployment of new telecommunications technologies.”

Second, Congress was determined “to preserve the authority of State and local governments over zoning and land use matters except in limited circumstances.”   One such limitation is that local regulations “shall not prohibit or have the effect of prohibiting the provision of personal wireless services” and that a local zoning decision be “supported by substantial evidence.” 

Substantial Evidence

The Ninth Circuit found that there was substantial evidence. A number of residents claimed that the monopole would have a detrimental impact on the surrounding residential property, that the pole would not be completely screened, and that it would interfere with residents’ views of the Cascade Mountains and other scenic views. This evidence is “more than a scintilla of evidence,” and accordingly the District Court should have deferred to the City’s determination that the evidence was adequate to support its denial of the application.

Effective Prohibition of Personal Wireless Services

The City did not rebut T-Mobile’s showing that the denial of the application constituted an effective prohibition of services. 

The wireless carrier has the burden of showing that the denial of its proposal will effectively prohibit the provision of services.  A provider makes a prima facie showing of effective prohibition by submitting a comprehensive application, which includes consideration of alternatives and shows that the proposed personal wireless service facility is the least intrusive means of filling a significant gap. A local government is not required to accept the provider’s representations.  However, when a locality rejects a prima facie showing, it must show that there are some potentially available and technologically feasible alternatives. The provider should then have an opportunity to dispute the availability and feasibility of the alternatives favored by the locality.

Here, the City has failed to show that there are any available alternatives (By “available,” Kreines & Kreines, Inc. believes that the Ninth Circuit means “leasable” and “capable of being approved and constructed”).   The City’s denial of the application without showing the existence of some potentially available and technically feasible alternative, constituted an effective prohibition of service, which (according to the Ninth Circuit) the District Court properly enjoined.

Because the Court concluded that the City failed to show that there were any available alternative sites, the Court did not determine whether the proposed alternative sites would have provided sufficient coverage to close the gap in T-Mobile’s coverage.

The Court indicated that it would address this issue in the same manner as that it addressed the availability of alternative sites. The provider’s application would have to show how the proposed site would close the gap, supported by data showing the coverage afforded by other sites. The locality could then investigate and determine whether the provider’s representations were sound and persuasive. The provider would then have an opportunity to reply to the locality’s challenges.

Indeed, this is how T-Mobile and the City proceeded in this case. T-Mobile supported its application with considerable data showing the coverage of the church site and the other alternatives. The City responded by questioning some of T-Mobile’s data and arguing that T-Mobile’s propagation maps did not delineate the coverages offered by the alternatives when combined with T-Mobile’s existing sites. The resolution of this disagreement over the adequacy of the propagation maps and the potential coverage of alternative sites is not necessary because the Court determined that the City failed to show that any alternative sites were available.

Decision

The TCA requires that courts, when reviewing a locality’s denial of an application, balance local concerns over the specific locations of such facilities with the national purpose of providing telecommunication services to all consumers.

The Court found on each of the following on T-Mobile claims:

·         Substantial evidence.  The Court determined that there was substantial evidence to support the denial. 

·         Prohibit or have the effect of prohibiting the provision of personal wireless services.   T-Mobile made a prima facie showing that its proposed location was the least intrusive means to close the admitted significant gap in coverage by including in its application an analysis of eighteen alternative sites. Although the City was not required to accept the provider’s representations, in order to avoid violating Section 332 of the TCA, the City was required to show the existence of some potentially available and technologically feasible alternative to the proposed location. Because the City has failed to do so, the District Court’s grant of summary judgment in favor of T-Mobile was affirmed.

Kreines & Kreines, Inc. can prepare or revise an ordinance to establish a process to avoid the problems encountered by the City of Anacortes.

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