City’s Denial Of An Application To Erect A Wireless Antenna Is Illegal When City Failed To Rebut Applicant’s Showing That The Denial Amounted To A Prohibition Of Wireless Services

In T-Mobile USA Inc. v. City of Anacortes, (— F.3d —-, C.A.9 (Wash.), July 20, 2009), the United States Court of Appeals considered a city’s appeal of a ruling that the denial of an application of a wireless communications provider to build an antenna for wireless communications in a residential area of the city violated provisions of the Telecommunications Act of 1996 (“Act”). The court ruled that the denial did violate the Act because 1) the provider had shown that there was no viable alternative sites, 2) the denial amounted to a prohibition on wireless communications in the area, and 3) the city failed to rebut that finding.

Facts

In 2006, T-Mobile USA (“T-Mobile”), a provider of wireless communications services, applied to the city of Anacortes, Washington (“City”) to erect a 116-foot tall antenna on property owned by a local church (“church site”) in a residential area. Following public hearings before the City planning commission and City council, at which area residents opposed the structure, the planning commission and City council denied the application finding that it would not be compatible with the character and appearance of the neighborhood and would detract from scenic views in the area.

T-Mobile filed suit in federal district court alleging the City’s denial violated the Act. The district court granted summary judgment for T-Mobile and ordered the City to approve T-Mobile’s application. The City appealed.

Decision

The court first explained that Congress passed the Act with the intent of limiting the ability of local governments to restrict or prohibit the provision of personal wireless services. The court then cited its decision in Metro PCS, Inc. v. City of San Francisco, 400 F.3d 715 (9th Cir. 2005), in which it ruled that to overturn a city’s denial of an effort to provide wireless communication, a plaintiff must establish either an outright prohibition or an effective prohibition of telecommunications services, and that merely showing that the denial could potentially prohibit those services was insufficient.

The court then agreed that the City’s denial was supported by substantial evidence that the antenna could have a detrimental effect on the surrounding neighborhood and its scenic views. That finding shifted the burden to T-Mobile to show that the denial constituted an effective prohibition of services. The court found T-Mobile met that burden. There was no disagreement that a “significant gap” in wireless service existed that T-Mobile’s antenna would have addressed, the court said. The court then found that the evidence supported T-Mobile’s contention that no other viable alternatives to the church property site existed. The court noted that alternate sites for the antenna advanced by the City – near the City’s police department, a National Guard building, and various area schools – were all impractical for various reasons including access, safety, geology, and effectiveness. “Here, the City has failed to show that there are any available alternatives,” the court said.

The court concluded, therefore, that placing the antenna at the church site was the least intrusive means of closing the significant gap in service coverage, and that the City’s denial, as a result, amounted to an effective prohibition of service and violated the terms of the Act.

The district court’s grant of summary judgment to T-Mobile was affirmed.

Questions

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