Federal District Court decides that certain wireless right-of-way installations are not subject to City's zoning regulations pursuant to City contract or Virginia state law.

CROWN CASTLE NG ATLANTIC LLC v. CITY OF NEWPORT NEWS, United States District Court, E.D. Virginia, CIVIL NO. 4:15CV93.

In a case that has been appealed  to the 4^th Circuit, the District Court found that the City’s Franchise Agreement with Crown Castle does not subject Crown Castle to the City’s zoning ordinance or zoning approval.  The District Court held that the City’s actions to require Crown Castle to comply with the zoning ordinance and either remove its equipment, comply with conditions described in the City Code, or obtain conditional use permits are in violation of the Franchise Agreement.   

The Court stated that even if the Franchise Agreement did subject Crown Castle to the zoning ordinance, the requirements and restrictions the City seeks to impose would be inappropriate as Crown Castle’s services fit within the zoning ordinance’s definition of “local utilities”; these local utilities are permitted uses in every zoning district in the City and do not require additional zoning approval or conditional use permits.

In regard to Virginia state law, the Court held that the City’s attempts to require Crown Castle to comply with the restrictions and requirements found in the zoning ordinance for “communication towers/antennas” violates the Code of Virginia § 56-462(C).   The Court found that Crown Castle is a certificated provider of telecommunications services and the restrictions and requirements the City seeks to impose are undoubtedly greater than those it imposes on “all providers of telecommunications services and nonpublic providers of cable television, electric, natural gas, water and sanitary sewer services.” 

The Court stated that the  “statute does not allow the City to single out a certificated provider of telecommunications services for more burdensome treatment based solely on the unique equipment or technology it uses.”

10th Circuit holds that the lack of reliable in-building or in-vehicle service is a legitimate consideration in determining whether a coverage gap is significant. AT&T MOBILITY SERVICES, LLC, v. VILLAGE OF CORRALES (10th Cir., March 8, 2016).

When the Village of Corrales denied AT&T a special permit to construct a 65-foot tall cell phone tower, AT&T filed suit, asserting (among other things) that the Village's denial amounted to an effective prohibition of personal wireless services in violation of the Telecommunications Act of 1996 (TCA). The district court agreed, granted summary judgment in favor of AT&T, and ordered the Village to approve the necessary permits. The Village appealed, and the 10^th Circuit affirmed. 

City’s denial of zoning permit for free-standing bell tower on Church property violated Telecommunications Act of 1996.

CELLULAR SOUTH REAL ESTATE, INC. d/b/a CELLULAR SOUTH v. CITY OF GERMANTOWN, (UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE, June 22, 2015).

 

The issues before the Court were as follows: (a) whether the decision to deny Cellular South's Application was not supported by "substantial evidence contained in a written record," in accordance with 47 U.S.C. § 332(c)(7)(B)(iii), and (b) whether the Board's denial of Cellular South's application effectively prohibited the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).

Smith Communications, LLC v. Washington County, Arkansas (8th Circuit, May 12, 2015)

 In Smith Communications, LLC v. Washington County, Arkansas (8^th Circuit, May 12, 2015), the Court held that a locality may rely on detailed meeting minutes to provide its written reasons for denial so long as the locality's reasons are stated clearly enough to enable judicial review, citing the U.S. Supreme Court’s recent decision in T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 816 (2015).

US Supreme Court decides T-MOBILE SOUTH, LLC v. CITY OF ROSWELL (January 14, 2015)

In its decision the US Supreme Court held that it would be considerably difficult for a reviewing court to determine whether a locality’s denial was “supported by substantial evidence contained in a written record,” §332(c)(7)(B)(iii), or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” §332(c)(7)(B)(i)(I), or regulated siting “on the basis of the environmental effects of radio frequency emissions,” §332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial. 

FCC issues Final Rule Regarding Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies (January 8, 2015)

As stated in the Final Rule published in the Federal Register on January 8, 2015, the “Federal Communications Commission (Commission) adopts rules to update and tailor the manner in which it evaluates the impact of proposed deployments of wireless infrastructure on the environment and historic properties. The Commission also adopts rules to clarify and implement statutory requirements applicable to State and local governments in their review of wireless infrastructure siting applications, and it adopts an exemption from its environmental public notification process for towers that are in place for only short periods of time. Taken together, these steps will reduce the cost and delays associated with facility siting and construction, and thereby facilitate the delivery of more wireless capacity in more locations to consumers throughout the United States.”

8th Circuit rules on "in writing" requirement of Telecommunications Act of 1996 (TCA)

NE Colorado Cellular, Inc. v.  City of North Platte, Nebraska (8th Cir. August 22, 2014). 

As outlined by the 8th Circuit, the TCA provides in relevant part:

"A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request."

"Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. " 47 U.S.C. § 332(c)(7)(B)(ii)–(iii).
 

 The 8th Circuit stated that courts have adopted four different interpretations of the TCA's "in writing" requirement, and the Supreme Court has granted a writ of certiorari to resolve the split. T-Mobile S., LLC v. City of Roswell, Ga., 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S. Ct. 2136 (2014).    

The 8th Circuit reviewed the four different interpretations and concluded:

"We are persuaded that the Fourth and Eleventh Circuits have articulated the better rule. Nowhere does the statutory text require that the denial and the "written record" be separate writings. Section 332 requires only that the denial and the record both be written. Section 332 does not require that the written denial state the reasons for the denial. Congress may require an agency or board to state its findings. See, e.g., 5 U.S.C. § 557(c). Congress did not do so here."

Anthony A. Dorland
Moss & Barnett

Tower owner enjoined from declaring wireless provider in breach of the parties' lease and taking any action to cause the removal of the wireless provider’s equipment on the tower.

United States Cellular Operating Company of Medford v. Western Radio Services Co., UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION (June 11, 2013).

The following are excerpts from the Court's Opinion and Order (citations omitted):

Western Radio Services Co. ("Western Radio" or "Defendant") leases land on Walker Mountain from the U.S. Forest Service ("Forest Service" or "Plaintiff") on which Western Radio maintains a communications tower, a support building, and a generator pad (collectively, "Original Tower"). Beginning in August 2010, Western Radio constructed a new communications tower at the same site ("New Tower"). In the underlying action, the Court has held that Western Radio breached its lease with the Forest Service when it constructed the New Tower without receiving final approval from the Forest Service and that the New Tower was therefore a continuing trespass on the Forest Service's land. The Court has ordered Western Radio to remove all trespassing structures and to restore the site by August 30, 2013.

FCC’s Shot Clock Rule Upheld

CITY OF ARLINGTON, TEXAS, ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. (U.S. Supreme Court, May 20, 2013).

The Supreme Court stated that 47 U. S. C. §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities (“within a reasonable period of time after the request is duly filed”).   But in practice, the Court stated that wireless providers often faced long delays.    The Court upheld the FCC’s authority to determine that a “reasonable period of time” under §332(c)(7)(B)(ii), is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications.

FCC Guidance on Intepretation of Section 6409(a)

THE FCC's WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012 (January 25, 2013).