Agenda - Planning Commission - 07/10/2014

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June 10, 2014 ( Volume 8 I Issue 11 Zoning Bulletin contravention of the Act's requirement that "[ a]ny decision . . . to deny a request to place, construct, or modify personal wireless service facilities shall be . . . supported by substantial evidence contained in the written record." (47 U.S.C.A. § 332(c)(7)(B)(iii).) GMR further argued that the denials ran afoul of the Act's ban of local decisions that "prohibit or have the effect of prohibiting the provision of personal wireless services." (47 U.S.C.A. § 332(c)(7)(B)(i)(II).) The district court concluded that substantial evidence supported the BOA and MCC denials. GMR appealed. The First Circuit upheld the substantial evidence findings, but noted that even though supported by substantial evidence, the denials could violate the Telecommunications Act if they resulted in the effective prohibition of the provision of wireless services. The First Circuit remanded the matter. Taking up the matter again, the district court learned that two wireless car- riers that had given GMR assurances that they would place the antennas on the new tower—T-Mobile and MetroPCS—had merged into a single company— T-Mobile US. Significantly, the district court first concluded that GMR "has shown as a matter of law that in [f]all 2009, there were significant gaps in MetroPCS and [T-Mobile US] coverage in the affected area, and no feasible alternative existed for resolving the MetroPCS coverage gap other than a 140- foot tower at the Site." The district court reasoned that if its effective prohibi- tion analysis took into account only those facts in existence at the time the BOA and MCC denied GMR's application, GMR "would be entitled to sum- mary judgment against both boards." However, the district court also determined it should consider subsequent developments to decide whether Milton had effectively prohibited wireless services in violation of the Telecommunications Act. The court first found that even after the merger, a significant gap remained in T-Mobile US's cover- age around the Site. It further found that "there are no feasible alternative locations for the proposed. tower" apart from the Site. The court felt, though, that GMR no longer needed to rectify MetroPCS's coverage gap thanks to the merger. (All of MetroPCS' customers were to be folded into T-Mobile's network.) It recounted the evidence in the record indicating that T-Mobile US's gap could be solved with a 117-foot or 120-foot tower, ultimately concluding that a shorter tower at the Site was a reasonable alternative to the original 140-foot proposal. The court then found that the existence of this alternative necessarily meant that the BOA's and MCC's denials did not ef- fectively prohibit the provision of wireless services. The court indicated that a new application for a shorter tower was appropriate. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the court issued summary judgment in favor of Milton. GMR appealed. DECISION: Judgment of district court affirmed in part, reversed in part, vacated in part, and remanded. The United States Court of Appeals, First Circuit, held that the 2009 deni- als had the effect of prohibiting T-Mobile US from providing wireless ser- vices, in violation of the Telecommunications Act. 10 © 2014 Thomson Reuters