The March 1998 issue of PlanWireless discussed the recent decision in Sprint Spectrum v. Town of Ontario, New York Planning Board and called it the most important decision we had seen, by far. In a conversation with the Clerk of the U.S. District Court, PlanWireless learned that Sprint has appealed the decision to the Second Circuit of the U.S. Court of Appeals.

Because the Telecommunications Act was only enacted in 1996, there are currently no precedents. U.S. District Courts in every part of the country are reaching to Georgia (Gwinnett County), New Mexico (Santa Fe City and County) and Washington ( City of Medina) to build their arguments and decisions. Now, as soon as the Second Circuit issues its decision affirming or reversing the U.S. District Court, we will have case law on this subject. Note, however, that while this decision will be the first of its kind in this country, a Second Circuit decision is only binding upon Courts located within the Second Circuit's jurisdiction (New York and Connecticut). That does not mean that the Second Circuit, one of the most highly regarded courts in the nation, won't have a profound influence on any circuit's subsequent wireless decisions ... it will.

There is also the possibility that the Appeals Court will remand the case back to Judge Telesca's court. Read on if you want to see why a remand is possible.

Ontario is a very important case, and not just because the Town of Ontario prevailed. The following is only part of our analysis of why this case should be on every town, city and county attorney's desk.

Substantial Evidence: At Last a Standard for Wireless

For the first time since PlanWireless has been reporting on Telecommunications Act cases, a federal judge has not reached back to National Labor Relations Board decisions, as Judge Tidwell did in BellSouth Mobility Inc. v. Gwinnett County, to define "substantial evidence." Instead, in Ontario, Judge Telesca found substantial evidence in three ways:

• Procedurally, the Judge found that the Town of Ontario did its homework.

The Town made specific written findings after conducting no less than nine lengthy meetings or hearings on Sprint's applications. Those findings were based on the evidence submitted to the Planning Board by Sprint and by other interested parties which supported the conclusion that the proposed towers would have a cumulative economic, environmental and visual impact on the Town.

• Substantively, the Judge leaned heavily on whether the Town of Ontario could determine if any cell site proposal could deliver "reliable" or "adequate" service:

I find that the Town acted within its authority in considering alternatives to Sprint's proposed placement of three towers.

Finally, the Town has shown by substantial evidence that Sprint can provide the "in-building" level of service to Ontario with sufficient overlap of coverage to neighboring towns by erecting only one centrally located tower.

• Environmentally, the Town had Sprint prepare three Environmental Impact Statements (EISs), one for each proposed site. The EISs constitute a record which contains evidence about the three site's economic, environmental and cumulative impacts.

If the Ontario decision stands, the above three points may go on to frame the definition of "substantial evidence" in personal wireless service facility lawsuits. PlanWireless predicts that, considering the amount of work that went into developing the above, the burden of rigor and disciplined analysis for providing substantial evidence will be increased for towns, cities and counties across the U.S.

Environmental Impact Statements

New York's State Environmental Quality Review Act (SEQRA) is similar to California's Environmental Quality Act and Washington's State Environmental Policy Act: they are all "sons of NEPA" (National Environmental Policy Act). (Continued on the following page.)

The concept common to all is to require an environmental document that determines whether a proposed project might result in significant environmental impact(s).

An EIS does not approve or deny a project. Rather, an EIS is a disclosure document and the information it contains is used by decision makers in deciding whether to approve or deny a project.

As a result of the EISs, the Planning Board found three types (visual, property values and cumulative) of significant impacts and used those impacts to draft findings as required by New York State law. The nexus between those findings and the three EISs was challenged as inadequate by Sprint in the lawsuit but was upheld by the Judge.

The Utility Issue Complicates this Case

In New York State, personal wireless service facilities are utilities and as such bring with them certain rights and privileges. However, Judge Telesca found that:

Under New York law, cellular providers are considered "public utilities," and are entitled to wider zoning latitude in order to provide the service for which they are mandated.

Generally, those utilities are regarded as monopolies subject to intensive administrative regulation. However, the Federal Communications Commission does not regulate cellular providers to the same extent. See 47 C.F.R. Section 24,103(e) [Requiring only that PCS licensees provide "reliable service."] No administrative agency acts as a buffer between cellular companies' competitive need to provide the highest level of service possible and the communities' need to secure the comprehensive balanced use of property in their community.

Sprint appears to believe that its business decisions as a utility take precedence over the decisions made by the community it intends to serve. The use of the term "reliable service," though quoted by Judge Telesca, is limited to this one part of the decision.

The Importance of Technology in this Case

Instead of the term "reliable service," Judge Telesca uses the term "adequate service" three times in the decision. Just what is "adequate service" and who has the right to define it may be central to this case.

The prospect of every town in the U.S. having the ability -- or obtaining the ability -- of defining "adequate service" in terms of signal strength is unrealistic. Each carrier has different measures of service levels, and each has the expertise to determine them. PlanWireless believes that local governments should not have to determine which carriers' levels of service are adequate and which are overkill.

Judge Telesca notes that two radio frequency (RF) propagation plots, when compared, seemed to provide similar levels of service. But RF propagation models are often inaccurate, and they are useful only as a planning tool, not as standards.

What Ontario lacks is the use of standards to determine what is acceptable to the town and what is not. There are no standards of adequate service that can be used across all wireless technologies, so local governments should avoid that subject at the risk of discriminating amongst functionally equivalent carriers. Had the town used standards to measure levels of visual impact, degree of property value impact and the extent of cumulative impacts, this case would be a clear victory for local governments.

As it stands, Ontario is a win for a municipality. However, the nomination of "adequate service" as a standard may be difficult for any town to use since town representatives may not know a dBm from a dBu.

From a planning perspective, municipalities should not base their decisions on technology but should stick to their lawful purview: land use, environmental impacts and infrastructure. For these three things, local governments can set clear standards.

Copies of the complaint, answer, memorandum of law, decision and the three EISs are available from Kreines & Kreines, Inc. for the cost of copying, shipping and handling.

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