November 25, 2015 Urban Lawyer

Recent Developments in Land Use Regulations of Cellular Telecommunications Facilities

by Alexander Judd

Alexander W. Judd ( is an Associate at Robinson & Cole LLP in its Environmental and Utilities Practice Group. Mr. Judd’s practice focuses on all aspects of energy and telecommunications law. As part of his telecommunications
practice, he represents wireless carriers in regulatory proceedings before state and municipal agencies.

I.  The Telecommunications Act

The Telecommunications Act of 1996 (“TCA”) enables, but limits, local zoning authority for wireless facilities. The TCA provides: “nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”1 However, the TCA limits the powers of local zoning authorities in several ways: (1) no regulation can “unreasonably discriminate among providers” or “prohibit or have the effect of prohibiting the provision of personal wireless services”; (2) “[a] State or local government” must act “within a reasonable period of time after [a] request” to “place, construct, or modify” a facility has been filed by a wireless provider; (3) “[a]ny decision by a State or local government . . . to deny a request . . . shall be in writing and supported by substantial evidence contained in a written record”; (4) “[n]o State or local government [can] regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s (“FCC”) regulations”; and (5) “[a]ny person adversely affected by any final act[] or failure to act by a State or local government . . . may, within 30 days,” commence a court action.2

II.  Written Decision: Any Decision by a State or Local Government to Deny a Request to Place, Construct, or Modify a Personal Wireless Service Facility Shall Be In Writing and Supported by Substantial Evidence Contained in a Written Record

A.     “In Writing” Requirement

For years, courts grappled with the requirement that a local board decision must be in writing. A majority of circuits to address this issue, including the First,3 Sixth,4 and Ninth Circuits,5 had previously interpreted the TCA to require that the denial of a wireless communication facility application by a local board “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.”6 These same courts “conclude[d] that something more than a bare written statement of denial [was] necessary, because judicial review contemplated by the TCA is frustrated if a reviewing court has no means to ascertain the rationale behind the decision of a local zoning board.”7

The Fourth,8 Eighth,9 and Eleventh Circuits10 took a different approach. For instance, in 2013, the Eleventh Circuit Court of Appeals held that the “in writing” requirement does not require that a decision be in a separate writing.11 In differentiating its holding from those circuits that had held otherwise, the Eleventh Circuit stated:

In interpreting what the words “in writing” mean in § 332(c)(7)(B)(iii), we are reluctant to import into those words, as some of our sister circuits have, “more pragmatic policy views” than the words themselves bring along, or to take a more “pragmatic, policy-based approach” than the plain meaning of those words taken. We are interpreting a statute, not designing one.12

In January 2015, the Supreme Court decided T-Mobile South, LLC v. City of Roswell, which reversed a 2013 Eleventh Circuit decision.13 In City of Roswell, the City denied an application for a cellular tower and argued that its denial satisfied the “in writing” requirement, as it was “reduced in writing in numerous forms, including the denial letter, hearing minutes, and hearing transcript.”14 T-Mobile contended that the district court “adopted the correct test . . . and the City’s brief, three-sentence letter notifying T-Mobile of the denial of its permit application did not suffice under that test.”15 The minutes of the meeting were not published until twenty-six days after the letter denying the application was sent to T-Mobile.16 In reversing the Eleventh Circuit, the Supreme Court resolved issues the circuits had been unable to resolve. First, it confirmed that the TCA requires localities to “provide reasons when they deny applications to build cell phone towers.”17 Second, the reasons need not “appear in the same writing that conveys the locality’s denial of an application”18 as long as the other writing is “issued essentially contemporaneously with the denial.”19

Recently, courts continue to analyze whether a local board’s decision is in writing. However, these same courts are now guided by the Supreme Court’s City of Roswell decision. Six days after the Supreme Court delivered that judgment, a United States district court in the Eleventh Circuit decided a case involving the “in writing” requirement. In Vantage Tower Group, LLC v. Chatham County-Savannah Metropolitan Planning Commission, the court found that the City of Savannah, Georgia “violated the TCA by failing to provide reasons for its denial of Vantage’s request for a variance.”20 The letter that the City sent to Vantage “did not provide any reasons for its decision” and the City itself “argue[d] that reasons [were] unnecessary.”21 The court noted that it “cannot even reach the question of whether substantial evidence supports the City’s decision[,] because the City did not explain with sufficient specificity why it acted the way it did.”22

After determining that the City of Savannah violated the TCA, the court had to determine the appropriate relief for Vantage. Vantage sought either monetary damages or a writ of mandamus that would require the City to approve its tower application.23 “However, neither remedy [was] appropriate in this situation.”24 While “[a]n injunction ordering issuance of a permit is appropriate, and is the result in the majority of cases,” the City “complied with the Eleventh Circuit’s interpretation of the TCA” at the time the letter was sent to Vantage.25 Thus, the court remanded the case “back to the City with instructions to comply with the TCA.”26 On April 2, 2015, the Savannah City Council unanimously approved the variance necessary to construct a tower in excess of eighty-five feet.27

In May 2015, another United States district court in the Eleventh Circuit decided a case that presented a more in depth analysis interpreting the Supreme Court’s decision in City of Roswell. In PI Telecom Infrastructure, LLC v. City of Jacksonville, Florida, PI Telecom argued, in part, that the City of Jacksonville did not satisfy the “in writing” requirement when it issued a “short . . . order denying the application,” because the order did “not sufficiently explain what siting, design, or performance standards the proposed tower fail[ed] to meet or its conclusion that the proposed tower [was] not compatible with the general character and aesthetics of the surrounding area.”28 After a recitation of the holding from City of Roswell, the court determined that the City cleared “the fairly low hurdle of the ‘in writing’ requirement.”29 In this case, the City “did not issue a blanket denial order, but identified the reasons for denial.”30

The PI Telecom court then provided its interpretation of the requirement that reasons be provided “essentially contemporaneous” with the denial, and ultimately found that the City met the requirement. The Supreme Court in City of Roswell did not provide the specific timeframe in which a document is issued “essentially contemporaneously,” instead only finding that twenty-six days between a denial and the reasons is too long.31 Here, a transcript of the planning commission meeting was completed six days after the order denying the application was issued.32 “[T]he transcript, finished an expeditious six days after the Commission meeting and issuance of the final order, was available for twenty-six days before PI Telecom had to file suit.”33 Even if the City did not provide the transcript “essentially contemporaneously” with the order denying the application, the court concluded that “any violation due to the delay is harmless under the circumstances.”34 However, the court noted:

it might be preferable in the future for the Commission’s final written order to contain more substantive context, particularly in those circumstances where it may be difficult to discern from the transcript which of competing reasons the Commission relied upon to deny the application or where the Commission rejected the recommendations of staff.35

In May 2015, the Eighth Circuit issued a decision that, similar to the PI Telecom court, concluded that the local jurisdiction had provided adequate notice for reasons of its denial.36 The facts, however, presented a different analysis to get to the same conclusion. In Smith Communications, the Eighth Circuit affirmed the district court’s decision to uphold the denial of Smith’s application by the Quorum Court of Washington County, Arkansas.37 Citing the Supreme Court’s decision in City of Roswell, the Smith Communications court determined that “Washington County did provide a legally adequate explanation for its denial when it referred Smith to the meeting minutes,” and these meeting minutes were “sufficiently clear to ‘enable judicial review.’ ”38 However, only one of the two meeting minutes was available at the time the Quorum Court denied Smith’s application.39 Minutes from the second meeting were not available until twenty-four days after Smith was notified of the denial. The provision of those minutes was therefore not within the “essentially contemporaneous” timeframe.40 The court noted that the first meeting minutes “reflect[ed] extensive discussion of the requirements of Zoning Code § 11-200(a), safety issues, the tower’s proximity to nearby residences, the tower’s detrimental impact on residents’ views and property values, and the tower’s fit with the surrounding area.”41 Residents “reiterated the same concerns” at the second meeting.42 Thus, the Smith Communications court determined that “Smith received adequate notice of the reasons for the Quorum Court’s denial,” and that if failure to make the second meeting minutes available somehow violated the TCA it was, “at most, a harmless error.”43

The Supreme Court issued a decision in January of 2015 that will guide a lower court’s analysis of the “in writing” requirement. However, many of the recent decisions involve application denials that took place before the Supreme Court decision was issued. Thus, courts are determining how best to integrate new law with facts that predate the law. At least one district court remanded the case back to the city without granting the relief the tower applicant sought. Other courts are interpreting the “essentially contemporaneous” requirement as applied to facts that can be argued either way. While the circuit split has been addressed, courts will continue to apply a fact-based approach to this new Supreme Court precedent.

B.  Supported by Substantial Evidence in the Written Record

Generally, after a court determines that a local jurisdiction has satisfied the “in writing” requirement, the court looks to whether there was substantial evidence in the written record to support the denial of the permit or application. This past year many of the court decisions have analyzed the “substantial evidence” requirement in the context of local zoning ordinances.

After analyzing the “in writing” requirement, the Smith Communications court concluded that the Quorum Court “had before it substantial evidence on the record as a whole that the tower’s scale, its proximity to residences, and the surrounding environment made approval inappropriate in view of the considerations outlined in Zoning Code § 11-200(a).”44 Specifically, Section 11 of the Washington County Code (i.e., the Zoning Code) provided that a conditional use permit may be authorized if, in part, the conditional use “is compatible with the surrounding area,” that “the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare,” and that “the conditional use will not be injurious to the use and enjoyment of other property in the surrounding area for the purposes already permit- ted, nor substantially diminish and impair property values within the surrounding area.”45 The court, in its conclusion, kept “in mind that the substantial evidence standard is essentially deferential”46 and that “if the [Quorum Court]’s findings are supported by some level of evidence (but less than a preponderance) on the record as a whole . . . the [Quorum Court]’s decision must be affirmed. . . .”47

A United States district court in the First Circuit came to the opposite conclusion as in Smith Communications, finding that the Zoning Board of Appeals for the Town of Falmouth, Massachusetts’, decision to deny Industrial Tower and Wireless’ (“ITW”) application for a special permit to construct a cell tower was not supported by substantial evidence.48 The Zoning Board of Appeals “applied the wrong legal standard, because its reasons for denying ITW’s application are grounded in the TCA, and not in the local Bylaw.”49 Despite precedent clarifying that “the substantial evidence requirement surely refers to the need for substantial evidence under the criteria laid down by the zoning law itself,”50 the Zoning Board of Appeals “focus[ed] almost exclusively on the question of ‘effective prohibition’ under the federal TCA.”51 However, the Bylaws do not discuss the TCA nor incorporate it by reference.52

The Industrial Tower and Wireless court concluded that “[w]here a local zoning authority denies an application to build a wireless facility on the basis of criteria extraneous to the local bylaw, its decision cannot be supported by substantial evidence, as a matter of law.”53 Even though the defendants argued that the Zoning Board of Appeals based its decision on the local bylaws, the court found that it was not the reason why the application was denied. “Because the [Zoning Board of Appeals’] stated reasons for denying ITW’s application were not based on the Bylaw criteria, the [c]ourt finds that the Board’s decision was not supported by substantial evidence.”54

Earlier this year, a United States district court in the Second Circuit determined that nothing in New York’s Zoning Code required Verizon, a wireless carrier, to show evidence of dropped calls or poor service prior to receiving a permit in the Town of East Fishkill.55 The Zoning Code “requires that before issuing a special permit to construct a new tower, the [Town of East Fishkill’s Zoning Board of Appeals] must find that the applicant has shown an actual need for construction of the new tower.”56 However, the reasons offered by the Board for denying the permit were not supported by substantial evidence. “Verizon provided no actual call or traffic data from its system demonstrating that its customers were suffering from a lack of service or dropped calls,” but they did provide “numerous calculated and drive test propagation plots of existing coverage.”57 The Town of East Fishkill court, in finding that the Zoning Board’s reasons for denial do not meet the substantial evidence requirement, concluded that “nothing in the [Zoning] Code requires Plaintiffs to show evidence of dropped calls or poor service, and this lack of evidence, without more, does not discredit Plaintiffs’ expert submissions and testimony. . . .”58

To satisfy the “substantial evidence” requirement of the TCA, a reviewing court will look to the local zoning ordinance. Even though this requirement is deferential to the local jurisdiction, courts this past year have found that some jurisdictions have not provided substantial evidence when its decision to deny an application is based on factors other than those specifically articulated by the local law.

III.  Effective Prohibition: State or Local Government Regulation of the Placement, Construction, and Modification of Personal Wireless Service Facilities Shall Not Prohibit or Have the Effect of Prohibiting the Provision of Personal Wireless Service

Over the past year, courts have continued to face a variety of factual situations regarding whether a permit or application denial is an effective prohibition of personal wireless service.

When a carrier claims an individual denial [of a permit] is an effective prohibition, virtually all circuits require courts to (1) find a “significant gap” in coverage exists in an area and (2) consider whether alternatives to the carrier’s proposed solution to that gap mean that there is no effective prohibition.59

As a threshold question, a United States district court in the Tenth Circuit affirmed past precedent, holding that “[i]n evaluating an effective prohibition claim, district courts are free to consider additional evidence not in the administrative record.”60 This was a case in which the Village of Corrales, New Mexico, denied an application for a special use permit to construct a new telecommunications tower.61 The Village filed a motion seeking to limit the evidence in the case to the administrative record for, among other claims, one of effective prohibition.62 “Courts uniformly hold that effective prohibition claims” should be decided “without any deference to the [local zoning] board.”63 Without persuasive evidence to the contrary, the court declined to break from precedent and allowed outside evidence for effective prohibition claims.64

Once beyond the threshold question, courts apply a fact-based analysis to determine whether a significant gap in coverage exists in an area. One such case involved an area in the San Marco neighborhood of Jacksonville, Florida, where “commercial and residential customers [had] poor voice and data coverage that impair[ed] their ability to make calls, including emergency 911 calls.”65 The City of Jacksonville, however, “object[ed] to characterizing the purpose of the proposed tower as fixing a ‘void in coverage’ rather than as improving inuilding service to an area that already ha[d] coverage.”66 The City argued that there can be no effective prohibition if there is some service.67 “However, the [c]ourt is persuaded by the authority cited by PI Telecom that a lack of in-building coverage can constitute a gap in service, particularly in a primarily residential area where calls may most likely be made indoors.”68 The court was further persuaded by the fact that “the area of weak or no service extend[ed] for several blocks. . . .”69

Similar to recent years, distributed antenna systems (“DAS”) were evaluated to determine whether it would be considered an alternative to a carrier’s proposal for a traditional tower. The Third Circuit determined DAS is not a feasible alternative.70 In Sprint Spectrum, the Zoning Board of Adjustment (“ZBA”) appealed from the district court’s grant of summary judgment to Sprint.71 In particular, the “ZBA dispute[d] the [d]istrict [c]ourt’s finding on the feasibility of the DAS as an alternative system to the monopole, and therefore argue[d] that the monopole is not the least intrusive means to fill the significant gap in wireless service that exist[ed] in Paramus.”72 However, the ZBA’s expert “conceded that he did not have practical experience designing a DAS or other cellular network. . . .”73 The district court, in its holding, noted that “a DAS system is infeasible because it is more susceptible than a monopole to outages due to falling trees, less flexible and therefore less able to cover multiple carriers, and designed to cover a smaller gap than required.”74 Like the district court, the Third Circuit concluded that “the monopole is in fact the least intrusive means, because the DAS was found not to be a feasible system for the coverage area in question,” as it “raised serious reliability concerns.”75

The determination of whether a permit denial is an “effective prohibition” continues to be litigated and decided as a fact-based analysis. In particular, a United States district court determined that a significant gap can come from a lack of in-building coverage. Consistent with previous years, this year’s courts continued to see challenges to mono- poles with arguments that DAS is less intrusive. However, these courts determined that DAS is not a feasible alternative to a traditional monopole tower.

IV.  Middle Class Tax Relief Act and Job Creation Act: No State or Local Government May Deny, and Shall Approve, Any Eligible Facilities Request for a Modification of an Existing Wireless Tower That Does Not Substantially Change its Physical Dimensions

In February of 2012, the Middle Class Tax Relief and Job Creation Act of 2012 (“TRA”) was passed into federal law.76 Section 6409 of this Act provides that a “[s]tate or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”77 On October 21, 2014, the FCC released a report and order (“FCC Order”)78 that provides guidance and clarifications regarding the application of Section 6409. Similar to previous years, this year did not see many court decisions hinging on or thoroughly analyzing what constitutes an “eligible facilities request.”

In analyzing a substantial evidence claim, the Town of East Fishkill court analyzed a local board’s decision to deny an application for a 150 foot monopole tower and found that its decision relating to the TRA and FCC Order was without substantial evidence.79 The Board concluded that “collocation, as presented by [Plaintiffs] throughout the review and public hearing process, [was] not feasible due to topographic considerations.”80 But additionally, the Board was worried that approval “implie[d] that additional variances could be sought which may increase the height of the tower, which would have a substantial effect on the neighboring property owners.”81

The Board based its “collocation argument on § 6409 of the Middle Class Tax Relief and Job Creation Act of 2012” and “hypothesize[d] that once the Tower [was] constructed, and col[l]ocation above 146 feet [was] not feasible, the Applicant [could] request approval to locate any number of additional antenna arrays on the Tower and to increase the height of the Tower up to the legal limit.”82 The district court, however, concluded that the Board’s assertion was “contrary to the plain text” of the TRA, which allows a local jurisdiction to deny a request if there is a substantial change to “the physical dimensions of [the] tower or base station.”83 The court cited the FCC Order as further proof of the Board’s ability to deny a proposed modification that is a substantial change.84

Few cases this past year involved challenges relating to the TRA. In one case that discussed the applicability of this statute, the court cited the TRA and the FCC Order as textual evidence that a municipality can still evaluate projects to see if there is a substantial change in the physical dimensions of the tower or base station.

V.  Conclusion

This past year the writing was on the wall, or at least in decisions by local jurisdictions denying carrier applications. After the Supreme Court broke a circuit court split and articulated a more uniform path for courts to analyze the “in writing” requirement of the TCA, lower courts still provided further clarifications on nuances and unique factual situations. As in years past, DAS continues to not be a feasible alternative to traditional monopoles in the context of whether a denial constitutes an effective prohibition of wireless service. Finally, while courts have been generally quiet in discussion about the TRA, there has been some plain language guidance provided on the TRA and the FCC Order.

  1. 47 U.S.C. § 332(c)(7)(A) (2015).
  2. Id. § 332(c)(7)(B)(i)-(v).
  3. See Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59-60 (1st Cir. 2001).
  4. See New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002).
  5. See MetroPCS, Inc. v. City & Cnty. of S.F., 400 F.3d 715, 722 (9th Cir. 2005).
  6. Smith Commc’ns, LLC v. Wash. Cnty., No. 13-5152, 2014 WL 2450067, at * 5 (W.D. Ark. June 2, 2014), aff ’d, 785 F.3d 1253 (8th Cir. 2015) (internal quotation marks omitted).
  7. Id. (internal quotation marks omitted).
  8. See AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 425 (4th Cir. 1998).
  9. See Ne. Colo. Cellular, Inc. v. City of N. Platte, 764 F.3d 929, 936 (8th Cir. 2014).
  10. See T-Mobile S., LLC. v. City of Milton, 728 F.3d 1274, 1283 (11th Cir. 2013).
  11. Id. at 1219.
  12. 728 F.3d at 1284 (internal citations omitted).
  13. 135 S. Ct. 808 (2015).
  14. T-Mobile South, LLC v. City of Roswell, 731 F.3d 1213, 1218 (11th Cir. 2013), overruled by T-Mobile South, LLC v. City of Roswell, 135 S. Ct. 808 (2015).
  15. Id. at 1218.
  16. 135 S. Ct. at 813.
  17. Id. at 814.
  18. Id. at 815.
  19. Id. at 818.
  20. No. 4:13–cv–258, 2015 WL 300257, at *4 (S.D. Ga. Jan. 20, 2015).
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. Id. at *4-5 (internal quotation marks omitted).
  26. Id. at *5.
  27. Dyanne Reese, Official Proceedings of Savannah City Council Meeting, at 19 (Apr. 2, 2015),
  28. No. 3:14–cv–838–J–32MCR, 2015 WL 2169962, at *9, *11 (M.D. Fla. May 8, 2015).
  29. Id. at *15.
  30. Id.
  31. City of Roswell, 135 S. Ct. at 811.
  32. PI Telecom, 2015 WL 2169962, at *10.
  33. Id. at *15.
  34. Id.
  35. Id. at *15 n.17.
  36. Smith Commc’ns, LLC v. Wash. Cnty., 785 F.3d 1253, 1258 (8th Cir. 2015).
  37. Id. at 1255.
  38. Id. at 1257 (emphasis in original).
  39. Id. at 1258.
  40. See id.
  41. Id.
  42. Id.
  43. Id.
  44. Id. at 1259-60 (internal quotation marks omitted).
  45. Id. at 1255.
  46. Id. at 1259 (internal quotation marks omitted).
  47. Id. (alteration in original).
  48. See Indus. Tower & Wireless, LLC v. Haddad, No. 14–cv–13276–ADB, 2015 WL 2365560, at *11 (D. Mass. May 18, 2015).
  49. Id.
  50. Id. (internal quotation marks omitted, emphasis in original) (citing Town of Amherst, N.H. v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9 (1st Cir. 1999)).
  51. Id.
  52. See id.
  53. Id. at *12.
  54. Id.
  55. Orange County-Poughkeepsie Ltd. P’ship v. Town of E. Fishkill (Town of East Fishkill), 84 F. Supp. 3d 274, 305 (S.D.N.Y. 2015).
  56. Id. at 304 (internal quotation marks omitted) (citing TOWN OF E. FISHKILL, N.Y. ZONING CODE § 194-82(c) (2015)).
  57. Id. at 291 (internal quotation marks omitted).
  58. Id. at 305.
  59. New Cingular Wireless PCS, LLC v. City of Manchester, No. 11–cv–334–SM, 2014 WL 799327, at *2 (D.N.H. Feb. 28, 2014) (alteration in original).
  60. AT&T Mobility Servs., LLC v. Vill. of Corrales, 80 F.Supp.3d 1267, 1269 (D.N.M. 2014) (alteration in original) (quoting Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 49 (1st Cir. 2012)).
  61. See id. at 1268.
  62. See id.
  63. Id. at 1269 (alteration in original) (internal quotation marks omitted).
  64. See id. at 1270. AT&T, however, conceded that its substantive evidence claim was “properly limited to the administrative record” and, as such, the court did not consider outside evidence for those claims. Id.
  65. PI Telecom, 2015 WL 2169962, at *21.
  66. Id. (emphasis in original).
  67. See id.
  68. Id.
  69. Id.
  70. See Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment, 606 Fed. App’x 669 (3d Cir. 2015).
  71. See id.
  72. Id. at 676.
  73. Id. at 674.
  74. Id. at 676.
  75. Id.
  76. Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156.
  77. Id. § 6409(a)(1).
  78. In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC Rcd. 12865 (2014).
  79. Town of East Fishkill, 84 F. Supp. 3d at 313.
  80. Id. at 306 (emphasis in original).
  81. Id. at 292 (internal quotation marks omitted).
  82. Id. at 308 (internal quotation marks omitted).
  83. Id. (alteration in original).
  84. See id.