Legal Grounds to Deny Towers

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Seamless? Not Very Likely

The first paragraph of APT Pittsburgh Limited Partnership v. Penn Township, one of the five or six really important Section 704 cases to date, reads as follows:

APT holds a license from the Federal Communications Commission ("FCC") to provide wireless PCS service in the Pittsburgh Major Trading Area ("PMTA"), which includes Penn Township. APT's FCC license requires it to provide "seamless" coverage in the PMTA. PCS systems are arranged around service "cells" that are anchored upon a communications facility that transmits and receives signals from PCS users traveling within the cell. The cells are arranged in a "honeycomb" pattern, each bordering the next so that users are passed between facilities as they travel. Communications facilities are essentially antennae mounted upon existing structures, new communications towers, and even include smaller units placed upon telephone and power line poles. Transmissions between communications facilities and mobile users operate on a "line of sight basis." As a result, antennae height becomes a crucial factor in areas with hilly or mountainous terrain and other physical obstructions.

There are numerous errors in this opening salvo. Beginning from the bottom, antenna (not antennae) height is no more a crucial factor in hilly or mountainous terrain than it is in flat, wide open countryside. Go to Florida for proof.

PCS is not a "line of sight" technology. It is a "broadcast" technology. The handset does not have to see the antenna and vice versa, any more than a radio needs to see the AM or FM broadcast tower.

Communications facilities are not "essentially antennae mounted upon" etc. PlanWireless uses "antennas" as the plural form of the conductor of radio frequency waves. The equipment at the base of the personal wireless service facility (the term used in the Telecommunications Act) is more important than the antennas because equipment limits capacity.

As far as the "honeycomb" pattern is concerned, cells do not "fit" together neatly, they overlap. They must overlap to hand off the signal.

PCS users do travel, and the main rationale for deploying cell sites along trafficways is for mobility. But, the real intent of PCS is to provide stationary service. And that stationary place more than any other is the home. The residential market is the real market for PCS.

Finally, PCS licenses are not for "seamless" coverage. PCS licenses are for ten years and the FCC has two time-sensitive requirements:

· A PCS carrier must serve 1/3 of its market population by the end of five years from the date a license is issued. (For most A and B band carriers, that date will occur this month.)

· A PCS carrier must serve 2/3 of its market population by the end of ten years.

That's it. There's nothing about geography, continuity or contiguity. A signal can start, stop, start up again, etc. as you travel along and there's no requirement against that. At the end of ten years, a PCS carrier can have up to 1/3 of its trade area population (not geographic area) unserved.

So, when only 2/3 of a population must be served, there will be holes, deserts, wilderness, wastelands and otherwise unserved areas. Seamlessness, it would seem, is not a legal issue. It could be a corporate issue, because subscribers do not like dropped calls; but "seamless" is a myth bought into by the federal court.

So why are judges falling for myth? Perhaps they get their information from the same sources most of us do: the wireless industry.

Significant Gap

The one test regarding service levels that seems to have taken hold (in at least three Circuits of the US Court of Appeals) is the need to close a "significant gap." According the U.S. Court of Appeals for the Second Circuit in Sprint Spectrum v. Town of Ontario Planning Board, a local government may be prohibiting service under the following conditions:

We hold only that the Act's ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines.

It's bad enough for the carrier that "significant gaps" only occur at the fringe of coverage areas (holes or dead spots within coverage areas are "insignificant gaps"), but the three judge panel in the U.S. Court of Appeals for the Second Circuit in Sprint Spectrum v. Town of Ontario Planning Board went on to opine:

Furthermore, once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader: State and local governments may deny subsequent applications without thereby violating subsection B(i)(II).

So now the courts seem to be saying that if some other carrier is already there, there is no significant gap. And, further, they seem to be saying that a local government may deny a carrier trying to extend its "coverage" without violating the subsection that forbids prohibition of service.

The U.S. Court of Appeals for the Third Circuit picked up this ball and ran with it. In the same Penn Township case, they found:

First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network. In this context, the relevant gap, if any, is a gap in the service available to remote users. Not all gaps in a particular provider's service will involve a gap in the service available to remote users. The provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider.

There aren't too many areas in the U.S. (outside of Montana and North Dakota, perhaps) that could meet the "significant gap" test, particularly for PCS denials. That's because Cellular has probably already been there (or is close enough to have a signal, however weak) so that some other carrier is already providing service. When another personal wireless service exists, weak signal or not, then the "significant gap" argument goes away for the litigious PCS carrier.

Least Intrusive

Even if there is a significant gap, a local government can deny a "cellular tower," according to U.S. Court of Appeals for the Second and Third Circuits, if it isn't the "least intrusive means" available of closing the "significant gap." In order to prohibit service, according to those U.S. Appellate Courts (and possibly the Fourth Circuit), the local government would have had to deny the least intrusive means to close a significant gap.

PlanWireless thinks that three short masts are less intrusive than one tall tower. But six dictionary-sized units on existing utility poles, such as PCS carriers are deploying in California, are even less intrusive.

In 360^o Communications Company of Charlottesville v. the Board of Supervisors of Albemarle County, the carrier noted that, in order to replicate the kind of service provided by the one tower it wanted to build, they would need to build either six towers on the flank of the mountain or 24 poles along the highway below the mountain instead of one tower on the top of the mountain.

PlanWireless thinks that those would be less intrusive means, but the carrier never intended these as real alternatives. Unfortunately, the three-judge panel saw them as alternatives, whether they were less intrusive or not.

Which brings up the question: who gets to decide what a "less intrusive" and ultimately, what the "least intrusive means" is? As we discussed in the May 2000 issue of PlanWireless; it really doesn't matter where the burden of proof lies.

A town, village, borough, city or county should be able to deny an application because it is not the least intrusive means of closing a significant gap. A carrier should be prepared to offer alternatives or suffer the consequences of a denial. PlanWireless believes that it would be almost impossible for a carrier to justify a "tower" as the least intrusive means of deploying its services, particularly if those services are PCS.