Subject: [NEXTEL-1] Wireless Companies Must Show "Significant Gap" in Coverage

From: [email-masked]
Date: Fri, 06 Jun 2003 17:03:17 -0400

Wireless Companies Must Show "Significant Gap" in Coverage

The 3rd U.S. Circuit Court of Appeals of Pennsylvania ruled in 
Omnipoint Communications Enterprises v. Zoning Hearing Board of Easttown Township
that wireless phone companies must show a "significant gap" in coverage
before entering local markets. The ruling determines the formula courts must
use to decide whether zoning board decisions violate the Telecommunications
Act of 1996.

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Street Law -- The Latest on Communications
Rights-of-Way Use and Other Municipal
Government Topics

III. KEY WIRELESS ISSUES

A. Overview

Municipal issues relating to wireless communications fall into
two principal areas, governed by different provisions of federal
law. Local regulation of cellular and PCS towers - "personal
wireless services" (PWS) - are subject to local zoning authority,
although the local community may not prohibit the provision of
PWS. See 47 USC § 332(c)(7) and § 704(a) of the 1996 Act. On
the other hand, local authority over video receive antennas less
than one meter in size, such as DBS dishes and traditional TV
mast antennas - "over-the-air reception devices" (OTARD) - is
largely preempted by federal law. See § 207 of the 1996 Act (not
codified) and the FCC's implementing regulations at 47 C.F.R. §
1.4000. In the recent cases in this area, local government
authority has generally continued to be upheld with respect to
PWS, but preempted with respect to OTARD.

B. Zoning of Personal Wireless Service Towers

1. Section 332(c)(7)

Section 332(c)(7), which governs PWS facilities, does not
purport to replace traditional zoning criteria for approval of
antenna towers. Rather, it establishes a set of ground rules and
procedural requirements that must be observed by local
communities in reviewing tower applications. One purpose of
these requirements appears to be to ensure that the local
decision is sufficiently well documented to allow for judicial
review. Under § 332(c)(7):

Local regulation of PWS must not "unreasonably
discriminate among providers of functionally equivalent
services." § 332(c)(7)(B)(i)(I).
Local regulation of PWS must not "prohibit or have effect
of prohibiting the provision of personal wireless services."
§ 332(c)(7)(B)(i)(II).
A local community must act on any request for PWS
siting authorization "within a reasonable period of time
after the request is duly filed . . . taking into account the
nature and scope of such request." § 332(c)(7)(B)(ii).
Any decision to deny such a request "shall be in writing
and supported by substantial evidence contained in a
written record." § 332(c)(7)(B)(iii).

In addition, § 332(c)(7) provides that a local community is not
permitted to regulate PWS facilities "on the basis of the
environmental effects of radio frequency emissions to the extent
that such facilities comply with the [FCC's] regulations
concerning such emissions." § 332(c)(7)(B)(iv). In other words,
determining the standards for health or environmental effects of
radio frequency ("RF") emissions is within the exclusive
jurisdiction of the FCC.

2. Fourth Circuit Cases

The most noteworthy decisions on these procedural
requirements for zoning authority over PWS facilities have come
from a line of cases in the Fourth Circuit. These begin with AT&T
Wireless PCS, Inc. v. City Council of the City of Virginia Beach,
155 F.3d 423 (4th Cir. 1997). Here the Fourth Circuit held that
"substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion," and that "[i]t is not only proper but even expected
that a legislature and its members will consider the views of their
constituents to be particularly compelling forms of evidence." Id.
at 430. Thus, comments from local residents, for example, may
be taken into account in a tower zoning decision even if they do
not constitute expert technical evidence. The Fourth Circuit
further held that case-by-case denials of permits for particular
sites cannot be construed as an overall prohibition of wireless
services without additional evidence. Id. at 428-29. The crucial
significance of Virginia Beach is to recognize that the new
procedural requirements of § 332(c)(7) do not force local zoning
boards to behave like federal administrative agencies:
"substantial evidence contained in a written record" does not
mean that a local zoning decision must include all the features of
an FCC rulemaking order, but rather permits the use of more
traditional zoning criteria and procedures as long as the basic
standards noted above are followed.

Two years later the Fourth Circuit confirmed this understanding
in AT&T Wireless v. Winston-Salem Zoning Board, 172 F.3d 307
(4th Cir. 1999). This decision generally follows the Virginia Beach
reasoning with respect to the requirement of Section
332(c)(7)(B)(iii) that local zoning decisions be in writing and
supported by substantial evidence. The panel noted that "The
simple requirement of a decision in writing cannot reasonably be
inflated into a requirement of a statement of findings and
conclusions, and the reasons or basis therefor." In addition, the
court faulted the U.S. District Court below for issuing a writ of
mandamus compelling Winston-Salem to issue the tower zoning
approval sought by the telecommunications carrier, indicating
strong disfavor against a federal court's issuing compulsory
process to a state or local government.

In 2000 the Fourth Circuit made a key distinction regarding
what it means to "prohibit" service in 360° Communications Co.
v. Board of Supervisors of Albemarle County, 211 F.3d 79 (4th
Cir. 2000). In this case it was claimed that a conspicuous site on
a mountaintop was the only reasonable alternative site (within the
ambit of the costs and logistical difficulties the provider was
willing to confront), but local guidelines made it impossible to use
that site. The court held the provider had a "heavy burden in
demonstrating that the . . . denial of a permit for a particular site
amounts to a general prohibition of service." The fact that the
Albemarle Board had approved 18 of 22 permit requests since
1990, including a few applications from the plaintiff in this case,
was affirmative evidence that no such general prohibition was
contemplated by the community. The fact that the denial of a
permit might leave the company with gaps in coverage was not
significant, the court concluded. "[Federal] regulations provide
that 'cellular service is considered to be provided in all areas,
including 'dead spots,' 47 C.F.R. § 22.911(b)." Id. at 22. It
followed that an operator is not prohibited from providing service
merely because it cannot achieve 100% coverage. The Fourth
Circuit rejected the district court's finding that denial of a
particular permit amounts to a prohibition of wireless services
even if the provider cannot find another site that provides "a high
level of wireless service" at a cost "within or close to the industry
wide norm for establishing new service."

A somewhat more ambiguous result was reached in
Petersburg Cellular Partnership dba 360 Degrees
Communications v. Board of Supervisors of Nottoway County,
205 F.3d 688 (4th Cir. 2000). The county's denial of a special use
permit was upheld by a majority of a three-judge panel on
differing grounds: one judge believed that there was substantial
evidence to support the County's decision, but another, who
disagreed on this point, nonetheless agreed that the County's
decision should be upheld on the grounds that § 332(c)(7)
violated the Tenth Amendment. The decision also vacated a writ
of mandamus below, following Winston-Salem.

In sum, the Fourth Circuit's cases carry out the mandate of the
federal law - to preserve local zoning authority except with the
specific exceptions identified in the statute. § 332(c)(7)(A).

3. Other Circuits

The results of § 332(c) cases in other jurisdictions have been
more mixed. In Aegerter v. City of Delafield, 174 F.3d 886 (7th
Cir. 1999), the Seventh Circuit upheld the City's denial of a
paging company's request to increase the height of a
grandfathered antenna tower in a residential area. Without
making the fine distinctions of Virginia Beach as to the
procedural requirements, the Aegerter court essentially followed
the same path in applying a substantial evidence standard and
allowing the application of traditional zoning and aesthetic
rationales. The court found no discrimination in treatment
because pagers and cellular telephone services are not in the
same market.

Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d Cir. 1999)
held that protected service is access to the national telephone
network without significant gaps of coverage.

APT Pittsburgh, L.P. v. Penn Township, 1996 F.3d 469 (3d Cir.
1999), in contrast with Albemarle, held that denial of a permit for
a site that is the least intrusive means to close a significant gap
in service could amount to a denial of wireless services. The Third
Circuit widened its gap with the Fourth in Omnipoint Corp. v.
Zoning Hearing Board of Pine Grove Township, 181 F.3d 403 (3d
Cir. 1999). This finding of insubstantial evidence for denial of a
tower zoning application is notable chiefly for its citation of
legislative history (page 208 of the Congressional conference
report on the Telecommunications Act of 1996) for its claim that
zoning orders should be addressed under the same standard
applied to federal administrative decisions. This appears to put
the decision squarely at odds with the Fourth Circuit view in
Virginia Beach (discussed above) that zoning in all its facets,
including the actual granting of permits, is a legislative activity
where the looser standard of the Commonwealth's zoning law is
to be allowed.

On the other hand, in Cellular Telephone Co. v. Zoning Board
of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64 (3d Cir
1999), over the vigorous objections of the carrier, the Court held
that it is permissible for a local zoning authority to consider
"quality" of wireless service, up to a point. The opinion defines a
"gap" in service, but it does not define the critical term
"significant gap" whose continuation might represent an effective
prohibition of service. Instead, the Court remanded the case for
further consideration of whether the local community's denial of
zoning permits amounted to effective prohibition of service by
refusing the only means to fill a significant gap in cellular service.
Also notable in the panel opinion is the holding that the federal
bar on "prohibition" in Section 332(c)(7)(B)(i) runs to "service" not
"facilities," meaning that it may be entirely possible to "serve" a
locality with facilities placed outside the jurisdictional boundaries.
Remanding the case back through the District Court to the Board
to determine whether the Board's denial would perpetuate
"significant gaps" in service amounting to effective prohibition, the
Court nevertheless reminded the carrier that providers still bear
the burden of proving that a proposed facility is the least intrusive
means of filling any gaps at a reasonable level of service.

In Omnipoint Communications Enterprises v. Newtown
Township and consolidated cases, 219 F.3d 240 (3d Cir.), cert.
denied, 121 S. Ct. 441 (2000), the carrier took to the U.S.
Supreme Court the issue highlighted in APT Pittsburgh above:
whether "effective prohibition" is to be applied provider by provider
or whether it is to be measured by the total service of all
providers. On November 6, 2000, the high court denied
Omnipoint's petition for certiorari, leaving in place the Third
Circuit's conclusion that an applicant must show "that the area
the new facility will serve is not already served by another
provider" and that an "effective prohibition" of cellular or PCS
service only when a zoning authority denies an application to fill a
"significant gap" covered by no carrier.

The First Circuit took an approach more in harmony with that of
the Fourth in Town of Amherst, NH v. Omnipoint
Communications Enterprises Inc., 173 F.3d 9 (1st Cir. 1999),
remanded sub nom, Omnipoint Communications Enterprises,
Inc. v. Town of Amherst, NH, 74 F.Supp. 2d 109 (D. N.H. 1998).
Here, Omnipoint proposed a conventional multi-tower PCS
system with towers tall enough to accommodate co-location by
other radio users. Three of the sites were public and would
generate revenue for the Town. The Town Selectmen endorsed
the carrier's plan to the Board of Zoning Adjustment, but the
Board denied the applications on grounds Omnipoint claimed
were so vague as to amount to an effective prohibition. The
applicant also asserted the denial was without substantial
evidence and had been too long delayed. The U.S. District Court,
on cross-motions for summary judgment, ordered the Board to
grant the applications because of prohibitory effect. It did not
reach the insubstantial evidence claim. However, the court of
appeals reversed. Noting that "Omnipoint did not present serious
alternatives to the Town," the First Circuit found that: At least on
the summary judgment record, it has not been shown that the
Board will inevitably reject an alternative Omnipoint proposal with
lower towers.

The Court described the burden on a carrier claiming "effective
prohibition" under 47 U.S.C.§332(c)(7)(B)(i) as follows: To show
from the language or circumstances not just that this application
has been rejected but that further reasonable efforts are so likely
to be fruitless that it is a waste of time even to try. The District
Court decision was vacated and the case remanded back to the
Board of Zoning Adjustment, with a caveat that the Town act
quickly.

In Telespectrum v. Public Service Commission of Kentucky, et
al., 227 F.3d 414 (6th Cir. 2000), after disposing of defenses that
the local government officials in question were immune from
Telespectrum's suit under the Eleventh Amendment, and that an
individual dissenting Commissioner should be immune, the panel
upheld the District Court's summary ruling for Telespectrum on
the ground that evidence was insubstantial for the denial of a
permit to erect a 199-foot tower on rural land. The judges said the
testimony of nearby landholders concerning loss of property
value, health threats from RF radiation and availability of alternate
sites "was no more than unsupported opinion." With respect to
siting alternatives, the panel said that KPSC's order "that
Telespectrum should continue this case and seek other
locations" was not enough to keep the order from being final and
reviewable.

Another interference-related question was raised in
Southwestern Bell Wireless, Inc. v. Johnson County Board of
County Commissioners, 199 F.3d 1185 (10th Cir. 1999). Johnson
County had sought to empower its zoning administrator to shut
down commercial wireless facilities interfering with public safety
radio. The county defended its denial by citing the ample zoning
deference contained in Section 332(c)(7)(A). The Court, however,
held that that subsection was limited to "placement, construction
and modification" of personal wireless facilities.

In AT&T Wireless PCS, Inc. v. City of Atlanta, 223 F.3d 1324
(11th Cir. 2000), the panel overturned the lower court's ruling that
the Communications Act remedies for denials of personal
wireless facilities siting were intended to preclude use of the "civil
rights" relief in 42 U.S.C.§§1983 and 1988, including
compensatory damages and attorneys fees. Four months later,
however, the Court vacated its own decision after discovering that
the trial judge had failed to rule on AT&T's substantive due
process claims, thus making the appeal unripe and depriving the
Eleventh Circuit of jurisdiction. The discussion of the original
decision suggests how such an issue might arise in the future.
AT&T Wireless had been refused a special use permit for PCS
construction. The denial was not in writing; nor, said the panel,
was the refusal supported by substantial evidence in a written
record. In vacating the District Court's decision on the Section
1983 issue, the panel placed great weight on the "no implied
effect" statement in Section 601(c) of the 1996 Act, which reads:
"This Act and the amendments made by this Act shall not be
construed to modify, impair, or supersede Federal, state, or local
law unless expressly so provided in such Act or amendments." In
a special concurrence on the matter of the carrier's entitlement to
attorney's fees, Judge Carnes observed that "AT&T is no civil
rights victim."

4. Recent § 332(c)(7) Cases

A number of useful points were made in Omnipoint
Communications Enterprises, L.P. v. Zoning Hearing Board of
Easttown Township, 2001 U.S. App. LEXIS 7909 (3d Cir. 2001).
Here the Third Circuit reversed the trial court and upheld the
township's denial of a zoning variance for a 110-foot antenna
tower to be placed at a synagogue. The court re-emphasized the
point made in Newtown that a community is not required to
ensure that all providers, regardless of the systems they have
chosen to construct, have no gaps. In addition, the court noted
that zoning ordinances in Pennsylvania have a presumption of
validity, and that the federal law did not change the basic zoning
criteria applicable to antenna towers.

In June 2001, the federal district court in the District of
Columbia upheld a moratorium on tower siting in American
Towers, Inc. v. Williams, Civil Action No. 00-2436 (PLF) (D.D.C.
June 14, 2001). The District had initially granted a building permit
for a 756-foot broadcast tower for HDTV. Subsequently, however,
the District passed legislation temporarily prohibiting the
issuance of permits for towers above 200 feet, and notified the
owner, American Towers, of its intent to rescind the permit. The
permit was cancelled on Oct. 10, 2000, and American Towers
filed suit the next day. The court dismissed all the plaintiff's
federal-law claims, including a claim under § 332, leaving open
the option of filing in local court to pursue claims under the
District's laws. The federal-law claims were held inapplicable
because the tower was not fundamentally a PWS tower: even
though the owners planned to place some PWS antennas on it
as well, the reason for the tower's unusual height was the
planned HDTV use, not the PWS use.

5. Radio Frequency (RF) Radiation Issues

The issue of RF emissions was raised in a Second Circuit
appeal from the FCC's orders setting health and safety
standards. Cellular Phone Taskforce et al. v. FCC, 217 F.3d 72
(2d Cir. 2000). The Court upheld the FCC's rules at 47
C.F.R.§1.1301 et seq. controlling human exposure to radio
frequency emissions from federally-licensed antennas. Among
the issues in the challenge were the agency's interpretation of
the scope of the preemptive language at Section 332(c)(7)(B)(iv),
as well as the constitutionality of the statute, especially under
the Tenth Amendment.

An unusual aspect of these rules is that the FCC admits to
incompetence in evaluating the biohazards of RF emissions and
thus depends on sister agencies such as EPA, FDA and OSHA
for technical information. Although these agencies only
participated in the initial round of the 1993-97 rulemaking, and not
in the extended reconsideration round, the court concluded,
among other findings, that the FCC was entitled to assume that if
the expert agencies had been troubled by new evidence
introduced in the reconsideration round, they would have
intervened.

During the same month the Second Circuit issued an order
addressing the related issue of RF interference with public safety
radio. In Freeman v. Burlington Broadcasters, 204 F.3d 311 (2d
Cir. 2000), the Town of Charlotte, Vermont, conditioned the
approval of a radio tower supporting FM radio, public safety radio
and cellular telephone antennas on non-interference with
appliances and devices in the homes of nearby residents. The
Zoning Board of Adjustment found the condition unenforceable.
This ruling effectively was upheld by the U.S. District Court for
Vermont, which dismissed the complaint of Charlotte citizens for
lack of subject matter jurisdiction. The Second Circuit panel
agreed with the outcome, striking down the interference
condition, but based its substantive decision on Congress' grant
of plenary power to the FCC to control broadcast interference to
RF-vulnerable appliances and equipment.

Thus, the FCC appears to have exclusive jurisdiction over RF
standards of any sort. In November 2000, three years after the
close of the comment cycle, the FCC issued a Report and Order
in WT Docket 97-192 (FCC 00-408) setting ground rules for the
hearing of complaints in the federally preemptive area of radio
frequency (RF) radiation safety. The agency shares jurisdiction
over such complaints with state and federal courts pursuant to
Section 332(c)(7)(B)(v) of the Communications Act. The Report
and Order said that such complaints should be filed as petitions
for declaratory ruling and served on all interested parties. Taking
note of the handbook on this issue jointly prepared by FCC staff
and the Local and State Government Advisory Committee
(LSGAC), the Commission expressed the hope that litigation
would be minimal and said it would decide complaints on a
case-by-case basis.

C. Video receive antennas

In the area of video receive antennas (the OTARD rules), there
has been little change since the FCC issued its original rules
extensively preempting local regulation of satellite dishes and
similar antennas under one meter. A number of decisions issued
by the Commission under these rules have almost invariably
resulted in striking down local regulation, including property
covenants established by homeowner associations. In 2000, the
FCC extended this preemption to include antennas used for
terrestrial wireless multichannel video. Bell Atlantic Video
Services Co., Petition for Declaratory Ruling Pursuant to 47
C.F.R. § 1.4000, CSR 5398-0, Memorandum Opinion and Order,
DA 00-927, 15 FCC Rcd 7366 (April 26, 2000).

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