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 10th Circuit affirmed.
In regard to the coverage gap issue, the 10th Circuit stated
that a number of courts have concluded that the lack of reliable in-building or
in-vehicle service is a legitimate consideration in determining whether a
coverage gap is significant and that another important, related consideration
is whether a gap straddles a significant commuter highway or a well-traveled
road that could affect large numbers of travelers and the people who are trying to communicate
with them. Isolated "dead spots" or de minimis
areas of noncoverage do not amount to a significant gap such as a small residential
cul-de-sac, the interior of buildings in a sparsely populated rural area, or a
limited number of houses or spots as the area covered by buildings increases.
The 10th Circuit stated that the undisputed evidence in the case established that the coverage gap is not so limited. There was evidence that in-vehicle coverage is unreliable for approximately two miles along the Village's main road and in-building coverage is unreliable around the proposed site in a ring that is more than a mile across, and the Village admitted in its answer to the complaint that the selected site is located in a populated and well-traveled area. Thus, the district court did not err in considering the level of reliable in-building and in-vehicle coverage.
The 10th Circuit stated that the undisputed evidence in the case established that the coverage gap is not so limited. There was evidence that in-vehicle coverage is unreliable for approximately two miles along the Village's main road and in-building coverage is unreliable around the proposed site in a ring that is more than a mile across, and the Village admitted in its answer to the complaint that the selected site is located in a populated and well-traveled area. Thus, the district court did not err in considering the level of reliable in-building and in-vehicle coverage.