Agenda - Planning Commission - 01/31/2013 - Special

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Zoning Bulletin September 25, 2012 ( Volume 6 I Issue 18 Next, the court concluded that the Township's denial of T-Mobile's application violated the Telecommunications Act, 47 U.S.C.A. § 332(c)(7)(B)(i)(II), in that it prohibited or had the effect of prohibit- ing the provision of personal wireless services. In so concluding, the court adopted the First Circuit's two-part test to consider whether the denial of an application amounts to an effective prohibition. Under the test, the denial of an application amount to an effective prohibition if there is: (1) a "showing of a `significant gap' in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations." Addressing the first part of this test, as a matter of first impression, the Sixth Circuit held that the denial of a single application from a wireless communications carrier can constitute an effective prohibition of personal wireless services. Also as a matter of first impression, the Sixth Circuit held that a "significant gap" in service coverage exists if "a provider is prevented from filing a significant gap in its own service coverage." The court provided that such a significant gap in coverage need not be shown by customer complaints, but that evidence such as RF propagation maps and drive test data, along with a report by an RF engineer, are "suitable to support a claim for a substantial gap in coverage." Looking at the record in the case at hand, the court found that the 1 denial of T-Mobile's application "prevented T-Mobile from filling a significant gap in its own service coverage." Addressing the second part of the two-part test —whether there were feasible alternative facilities or site locations —the Sixth Circuit adopted the "least intrusive" standard (as opposed to the "no viable alternatives" standard followed by the First and Seventh Circuits): The wireless communications carrier is required to show that "the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sough to serve." Applying that standard here, the court held that T-Mobile satisfied its burden. "T-Mobile made numerous good -faith efforts to identify and investigate alternative sites that may have been less intrusive on the `values that the denial sought to serve," found the court. The court concluded that the Township's decisions in denying T-Mobile's application had "the effect of prohibiting the provision of personal wireless services" and thus violated 47 U.S.C.A. § 332(c)(7)(B)(i)(II). See also: MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (9th Cir. 2005). See also: APT Pittsburgh Ltd. Partnership v. Penn Tp. Butler County of Pennsylvania, 196 F.3d 469 (3d Cir. 1999). © 2012 Thomson Reuters 7