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December 10, 20091 Volume 31 No. 23 Zoning Bulletin The city's planning commission (the "Commissi9n") recom- mended that the city's zoning board of review (the "Board") deny Omnipoint's application. The Commission determined that Omnip.., oint had failed to show that there were no alternative sites to ac- commodate the service needed. Without explaining its decision, the Board denied Omnipoint's application. Omnipoint sued the city, the Board, and the members of the Board (hereafter, collectively, the "city") in federal district court. It claimed that the city had violated the federal. Telecommunications Act (the "TCA") because it had "effectively prohibited the provi- sion of personal wireless services by refusing to grant Omnipoint's application. " The 'district court agreed with Omnipoint. It found that the city violated the TCA's provision that local zoning authorities may not "prohibit or have the effect of prohibiting the provision of personal wireless services." (See 47 U.S.C.A. ~ 332(c)(7)(B)(i)(II)). It entered judgment for Omnipoint~In doing so, the court held that Omnip- oint had shown: (1) that the city's de~ision to deriy Omnip<;>int's ap- ,plication prevented Omnipoint from closing a "significant gap" in 'coverage; and (2) "that further reasonable efforts to find an' alterna- tive solution would be fruitless." , The city appealed. DECISION: Affirmed. The United States Court of Appeals, First Circuit, also con- cluded that the city had violated the TCA. This was because the city's denial of Omnipoint's variance and special use permit appli- cations effectively prohibited Omnipoint's provision of personal wireless services. In so concluding, the court explained that in order for Omnip- oint to show that this individual denial of its applications by the city was an "effective prohibition" in violation of the TCA, Om- nip oint had to show: (1) there was a "significant gap" in cover- age in the area; and (2) there were no alternatives to Omnipoint's proposed solution to that gap (i.e., the 90-foot pole on the church's property). The court found that Omnipoint hadmet this burden. . Whether there was a "significant gap" in coverage depended on: "the physical size of the gap; the area in which there [was] a gap; the number ofnsers the gap affect[ed]; ... whether all of [Omnipoint's] users in that area [were] similarly affected by the gap[; and] percent- ages of unsuccessful calls." Here, the court found that "Omnipoint had shown its need for coverage around [the subject main road in , the city] was significant": The road was "a heavily traveled and im- portant route" that connected the city to neighboring municipalities; 6 @ 2009 Thomson Reuters 68 ,.,.<~) , , (") , \ \ ) I I I I I f i I I I I