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ANTENNA TO ZONING OF THE WIRELESS WORLD

2. Distribution of federal decisions involving Sec. 332(c)(7). Bulk of USCA cases from Northeast and Mid-Atlantic (Circuits 1-4)No reported appellate decisions in Circuits 5, 8, 9, D.C.USDC cases in all Circuits. 3. Cases ranked by subject matter. Substantial evidence Sec. 332(c)(7)(B)(iii

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ANTENNA TO ZONING OF THE WIRELESS WORLD

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    1. (A)NTENNA TO (Z)ONING OF THE WIRELESS WORLD JAMES R. HOBSON MILLER & VAN EATON, P.L.L.C. WASHINGTON, D.C. FRIDAY, SEPTEMBER 12, 2003 10:45 A.M.-12 NOON

    2. 2 Distribution of federal decisions involving Sec. 332(c)(7) Bulk of USCA cases from Northeast and Mid-Atlantic (Circuits 1-4) No reported appellate decisions in Circuits 5, 8, 9, D.C. USDC cases in all Circuits

    3. 3 Cases ranked by subject matter Substantial evidence Sec. 332(c)(7)(B)(iii) + in writing + based on written record Service prohibition Sec. 332(c)(7)(B)(i)(II) Unreasonable discrimination Sec. 332(c)(7)(B)(i)(I) Other + Reasonably prompt decision-making Sec. 332(c)(7)(B)(ii) + Preemptive federal RFR standards Sec. 332(c)(7)(B)(iv)

    4. 4 Notable cases from 2002-2003 ATC Realty v. Town of Kingston, 303 F.3d 91 (1st Cir. 2002) Nextel Communications v. Town of Wayland, MA, 231 F.Supp.2d 396 (D.Ma 2002) Nextel Communications v. Town of Provincetown, MA, 2003 WL 21497159 (D.Ma.) Nextel Partners v. Town of Amherst, NY, 251 F.Supp.2d 1187 (W.D.N.Y. 2003) MetroPCS v. City and County of San Francisco, 259 F.Supp.2d 1004 (N.D. Ca. 2003) Sprint Spectrum v. Parish of Plaquemines, 2003 WL 193456 (E.D. La.) United States Cellular v. City of Wichita Falls, TX, 2003 WL 21246125 (N.D. Tx) Jeffery and Judy Mason, et al. v. Town of Clifton Park, NY, 2002 WL 31972190 (N.D.N.Y.)

    5. 5 ATC Realty v. Town of Kingston Sec. 332(c)(7) attempts to balance accelerated introduction of telecom technology with local control over zoning. Substantial evidence is measured by the local zoning requirements. Given that zoning board granted another tower company’s application while denying plaintiffs’ request, Court chose to evaluate substantial evidence by comparing the two proposals -- without deciding whether comparative approach is always correct. Two competing proposals nearly equivalent in terms of co-location capability and coverage. Only significant difference was strong aesthetic objection of neighbors to ATC Realty proposal, not much fuss over American Tower. Court upheld Town on that aesthetic ground.

    6. 6 Nextel Communications v. Town of Wayland, MA Under Amherst and other 1st Circuit appellate decisions, a tower builder or wireless provider is obliged to seek alternative sites until “further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.” Town was found to have prohibited Nextel from closing service gap even though a two options remained untried. Court found Town had engaged in “obstructionist activity.”

    7. 7 Nextel Communications v. Town of Provincetown Facts and outcome much like Wayland case. Provincetown zoning bylaw, like many other local government codes, ties grant of variances to “hardship” showings. But local zoning law of hardship must yield to federal ban on prohibition of service.

    8. 8 Nextel Partners v. Town of Amherst, NY, Town made mistake of denying Nextel two months after it had granted virtually identical application to a competitor to occupy same tower. Planning Board’s approval of Nextel application had expressed preference for monopole or other “non-lattice” structure. Whether such a structure would have supported four sets of carrier antennas is not discussed in the opinion. Rather, Court focused on proximity in time of prior grant to competitor and zoning code’s preference for co-location. Outcome: Discrimination, prohibition, civil rights violation, atty. fees.

    9. 9 MetroPCS v. City and County of San Francisco Court entered summary judgment for City and County on written denial and substantial evidence (with carrier assigned burden of proof) and on non-discrimination. But disputed facts prevented summary judgment on whether MetroPCS had been prevented from closing “significant gap.” Court allowed citizen testimony on existing service adequacy to fulfill substantial evidence requirements. But this evidence did not suffice to decide “dead spots” vs. “gap.” Court refuses to follow 3rd Circuit in measuring gap by “any carrier.”

    10. 10 Sprint Spectrum v. Parish of Plaquemines This case, along with MetroPCS (previous slide) and Wichita Falls (next slide), takes on special import because neither 5th nor 9th Circuit has ruled yet on a Section 332(c)(7) appeal. Examines closely the split in circuits as to the meaning of Section 332(c)(7)(B)(iii): written decision based on written record. + 6th Circuit: New Par v. City of Saginaw (max) + 4th Circuit: AT&T Wireless v. City of Virginia Beach (min) + 1st Circuit: Southwestern Bell Mobile Systems v. Todd (middle) Court upholds local finding of adverse effects on neighboring property.

    11. 11 United States Cellular v. City of Wichita Falls, TX Relatively rare case in which City granted summary judgment even though it did not file a cross-motion requesting this. Court allows “in writing” test of Sec. 332(c)(7)(B)(iii) to be met by two-stage order: (1) initial denial without reasons; (2) followed by second order 2 weeks later, giving reasons. Relies on Parish of Plaquemines (prior slide). Excuses set-back language that mixes “should” and “may,” even though former had replaced “shall,” on ground that “should” was enough to give local authority discretion to refuse variance.

    12. 12 Jeffery and Judy Mason, et al. v. Town of Clifton Park, NY No private right of action for citizens aggrieved by grant of wireless carrier application either expressed or implied by Sec. 332(c)(7)(B)(v). Statute can only be read to apply to denials, and thus to adversely affect only carriers. Citizens are not foreclosed from state law or other federal law challenges that may be open to them.

    13. 13 The disputed question of civil rights liability Nextel Partners v. Kingston Township, 286 F.3d 687 (3d Cir. 2002) found that Section 332(c)(7) constitutes a “comprehensive remedial scheme that furnishes private judicial remedies” for carriers (see prior slide) and that 42 U.S.C. §§1983 (damages for abridgment) and 1988 (attorneys fees) ordinarily would not apply. Town of Amherst, NY (slide 8) applies both sections and cites several other federal district court decisions from the 2nd Circuit that have done the same. To our knowledge, however, no other appellate court than the Kingston Township court, not even in the 2nd Circuit, has applied Sections 1983 and 1988 in zoning denials under Sec. 332(c)(7).

    14. 14 Two pending matters USOC of Virginia, RSA #3, et al. v. Montgomery County (VA) Board of Supervisors, USCA-4, No. 03-1322 (L), argued June, 2003 + Tests Virginia principle disfavoring “aesthetics-only” zoning + Tests “comparative” approach to substantial evidence (Slide 5) Petition of Cingular Wireless, WT Docket 02-100, FCC + Staff order of 7/7/03 preempted portions of Anne Arundel County, MD wireless zoning ordinance as forbidden RFI regulation + County’s Application for Review by full FCC filed 8/6/03

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