Yesterday the Sixth Circuit issued its opinion in T-Mobile Cent. v. Charter W. Bloomfield, in which it weighed in on not one, not two, but three circuit splits that may affect your ability to make a phone call or send a text from your mobile device. No. 11-1568 (6th Cir. Aug. 21, 2012). As I'm sure many readers are aware, service providers like T-Mobile have responded to the exploding growth in demand for mobile services by erecting cell towers across the country at a rate that would have made the oil barons who once lined the landscape with spindletops proud.
In T-Mobile Central, the national carrier proposed to build one such tower in a Michigan town to fill a coverage "deadzone," or "gap." But the town denied the carrier’s application, prompting T-Mobile to file a lawsuit in which it argued that the denial violated the Telecommunications Act. Id. The Act prohibits state and local governments from enforcing regulations that “prohibit or have the effect of prohibiting the provision of personal wireless services” where gaps in coverage exist so as to restrict the placement, construction, or modification of cell towers and other wireless service facilities. 47 USC § 332(c)(7)(B).
Circuit Split #1: Can the denial of a single application submitted by a cellular service provider have the “effect of prohibiting the provision of personal wireless services”?
The court first considered “whether the denial of a single application from T-Mobile can constitute an effective prohibition.” This question has produced a split among the circuits. On one hand, the court's opinion points out, the Fourth Circuit “has held that only a general, blanket ban on the construction of all new wireless facilities would constitute an ‘impermissible prohibition of wireless services under the TCA.’” T-Mobile Cent. (quoting MetroPCS, Inc. v. City & Cnty. of San Francisco, 400 F.3d 715, 730 (9th Cir. 2005)).
On the other hand,
the large majority of circuits have rejected this approach. Most recently, the Ninth Circuit noted that, under such a strict construction, "persistent coverage gaps can never constitute a prohibition under the statute—courts must ask only whether local governments have (effectively) banned wireless services altogether. . . . The language of the TCA, while sparse, does not dictate such a narrow interpretation even under a plain meaning approach." MetroPCS, 400 F.3d at 730; see also Second Generation Props., LP v. Town of Pelham, 313 F.3d 620, 629 (1st Cir. 2002) (holding that the clause "is not restricted to blanket bans on cell towers" and that "[t]he clause may, at times, apply to individual zoning decisions."); Voicestream Minneapolis, Inc. v. St. Croix Cnty., 342 F.3d 818, 830 (7th Cir. 2003); APT Pittsburgh Ltd. P'ship v. Penn Twp. Butler Cnty., 196 F.3d 469, 479-80 (3d Cir. 1999); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999).
Id. After considering this issue of first impression in light of the conflicting authority, the Sixth Circuit rejected the Fourth Circuit's approach in favor of the standard adopted by the majority of circuits. Id.
Circuit Split #2: Can a cellular service provider claim that a “significant gap” in coverage exists in a particular area if a competing provider already covers that area?
The Sixth Circuit’s opinion in T-Mobile Central offers the following summary of the competing positions taken by its sister circuits on this issue:
. . . . The Second and Third Circuits have held that no "significant gap" exists if any "one provider" is able to serve the gap area in question. See, e.g., APT Pittsburgh, 196 F.3d at 478-80; Willoth, 176 F.3d at 643. Likewise, the Fourth Circuit adopted the "one provider rule," holding that allowing carriers an individualized cause of action "would effectively nullify local authority by mandating approval of all (or nearly all) applications." AT&T Wireless, 155 F.3d at 428. In other words, under this approach, if Verizon has coverage in an area but T-Mobile does not, T-Mobile cannot claim to have a service gap.
The Ninth Circuit rejected the "one provider" rule and adopted a standard that considers whether "a provider is prevented from filling a significant gap in its own service coverage." MetroPCS, 400 F.3d at 733. The First Circuit has also adopted this rule and observed that "[t]he fact that some carrier provides some service to some consumers does not in itself mean that the town has not effectively prohibited services to other consumers." Second Generation Props., 313 F.3d at 634. Under this approach, if Verizon had coverage in an area but T-Mobile did not, T-Mobile could still claim to have a service gap.
In 2009, the FCC issued a Declaratory Ruling that explained that the effective prohibition provision requires only a showing that a carrier has a "significant gap" in its own service coverage—the approach of the First and Ninth Circuits . . . .
Id. “In light of the FCC's endorsement of the standards used by the First and Ninth Circuits,” the Sixth Circuit panel concluded, “we now adopt this approach.” Id.
Circuit Split #3: What is the appropriate standard for determining whether there are feasible alternative locations for cellular service towers and other facilities?
The court described the third and final conflict as follows:
The second part of the MetroPCS inquiry focuses on whether there are feasible alternate locations. "Under all existing versions of the 'significant gap' test, once a wireless service provider has demonstrated that the requisite significant gap in coverage exists, it must then make some showing as to the intrusiveness or necessity of its proposed means of closing that gap." MetroPCS, 400 F.3d at 734. The circuits split at this fork:
The Second and Third Circuits require the provider 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 sought to serve." Penn Township, 196 F.3d at 480 (emphasis added); see also Omnipoint, 331 F.3d at 398; Unity Township, 282 F.3d at 266; Willoth, 176 F.3d at 643. The First and Seventh Circuits, by contrast, require a showing that there are "no alternative sites which would solve the problem." Second Generation Props., 313 F.3d at 635; see also St. Croix County, 342 F.3d at 834-35 (adopting the First Circuit test and requiring providers to demonstrate that there are no "viable alternatives"). . . .
MetroPCS, 400 F.3d at 734. The Ninth Circuit adopted the "least intrusive" standard. Id. at 735. Judge Cudahy found the precedents from the First and Seventh Circuit "too exacting." Id. at 734. The Second and Third Circuit's "least intrusive" standard "allows for a meaningful comparison of alternative sites before the siting application process is needlessly repeated." Id. at 734-35.
We agree with Judge Cudahy and adopt the "least intrusive" standard from the Second, Third, and Ninth Circuits. It is considerably more flexible than the "no viable alternatives" standard, as a carrier could endlessly have to search for different, marginally better alternatives. Indeed, in this case the Township would have had TMobile search for alternatives indefinitely.
Under the "least intrusive" standard, the analysis is straightforward, and TMobile satisfies its burden. See Omnipoint, 331 F.3d at 398 (noting that the "least intrusive" standard "will require a showing that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennae on existing structures, etc."). 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." Penn Twp., 196 F.3d at 480. Specifically they considered building a monopole near the West Hills High School and on a water tower at the Knollwood Country Club. A facility at the High School would have been significantly more intrusive to the values of the community, as demonstrated by the widespread opposition to that proposal. Also, T-Mobile determined that a facility at the Knollwood Country Club location would have been too far away from the area with weak service and would not have resolved the coverage gap. The Township suggested no other alternatives beyond the two already proposed. This evidence is sufficient to make the requisite "showing as to the intrusiveness or necessity of its proposed means of closing that gap." MetroPCS, 400 F.3d at 734.
The Township's decisions had "the effect of prohibiting the provision of personal wireless services" and thus violated 47 U.S.C. § 332(c)(7)(B)(i)(II).