Agenda - Planning Commission - 07/10/2014

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Zoning Bulletin June 10, 2014 I Volume 8 I Issue 11 The court explained that the Telecommunications Act mandates that, "in regulating the placement and construction of [wireless] facilities, a state or lo- cal government or instrumentality `shall not 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 court noted that it was well -established in the First Circuit that "local zoning decisions . . . that prevent the closing of significant gaps in the availability of wireless services violate the [Act]." The court emphasized that is true even where a local authority's denial of an individual application pursuant to its own local ordinances is supported by substantial evidence. Further, said the court, "[t]he question of whether or not a local denial constitutes an effective prohibition violative of the Act is definitively answered by the district court, not the local zoning authority." Here, the court found that although the district court addressed the effective prohibition claim with respect to MetroPCS (finding there was no effective prohibition given the merger), the district court had failed to consider the changed circumstances from the perspective of T-Mobile US. In other words, the court found that the district court had failed to determine whether the 2009 denials violated the Telecommunications Act by "prevent[ing] the closing of significant gaps in the availability of wireless services" provided by T-Mobile US. The First Circuit said that "[w]hether or not an effective prohibition has oc- curred depends on each case's unique facts and circumstances, and `there can be no general rule classifying what is an effective prohibition.' " Here, the court found the facts showed that: (1) a significant gap remained in T-Mobile US's service in the area of the Site, despite the merger; and (2) the Site was the only feasible location on which to construct a cell phone tower to fill in T-Mobile US's coverage gap. Accordingly, the court held that the denials amounted to an effective prohibition of wireless services in violation of the Telecommunications Act. The question remained as to the tower height required to eliminate the coverage gap. GMR had indicated a shorter tower than the 140-tower proposed night eliminate the coverage gap. Milton had argued that GMR should have to submit a brand new application for a shorter tower. The court, however, held that those arguments were based on the "mistaken premise that the district court correctly granted Milton's summary judgment motion, and completely ignored the effective prohibition claim with respect to T-Mobile US." The court, therefore, rejected them. The court then emphasized that, since the BOA and MCC had already "had their say" on the applications, the tower height question was for the district court, not the BOA or the MCC, to answer. The court remanded the matter to the district court to determine the tower height needed in order to remedy the effective prohibition of wireless services caused by the BOA's and MCC's denial of GMR's application to construct a cell phone tower. See also: Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002). See also: National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14 (1st Cir. 2002). co 2014 Thomson Reuters . 11