OWM Newsletter
August, 2011
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CELL TOWERS -SUCCESSFULLY
OBJECTING TO A PROPOSED CELLTOWER
MAY HAVE BECOME MORE DIFFICULT

“Not In My Backyard” (“NIMBY”) is a statement, frequently raised as an emotional war cry, by residential property owners in opposition to a proposed use or other development of nearby property that is viewed as having potential adverse effects on the value, use or quality of enjoyment of the residential property. In recent years, a use or development, which has become a frequent NIMBY target, is the wireless telecommunications tower, commonly referred to as a “cell tower,” proposed to be located on or nearby residentially-zoned property. However, a recent FCC Determination and Federal District Court decision appear to have made a successful objection to a proposed cell tower more difficult.

Cell Tower Proliferation

Since 1985, there has been a proliferation of cell towers due primarily to a dramatic increase in the number of cell phone and wireless subscribers in the U.S., and to the enactment of the Telecommunications Act of 1996 (“TCA”) by the U.S. Congress.

•  The CTIA-The Wireless Association, the international association for the wireless telecommunications industry, reports that the number of subscribers in the United States increased from 340,213 cell phone subscribers in 1985 to more than 285.6 million wireless subscribers in 2009, which is approximately 91% of the U.S. population.  The early cellular telephone service has since been coupled with PCS (Personal Communications Service) that utilizes digital technology to provide data transmission, computer networking, wireless internet access and other related features and services.

•  The TCA deregulated the telecommunications industry and encouraged competition among all types of communications companies.  As a result, the market has seen an influx of new telecommunication providers.

Municipal Regulation and TCA

Despite its deregulation of the telecommunications industry, the TCA continues to allow local municipalities to regulate the location of cell towers and antennae.  Current municipal regulations of telecommunications facilities are usually found in the municipality’s zoning ordinance.  The regulations generally encourage the placement of antennae on existing structures, such as rooftops of existing non-residential buildings and water tanks, or the co-location of antennae with other antennae on existing towers, rather than on new cell towers.  If an existing structure is not available and a new tower is necessary, the regulations generally encourage the location of the new tower in non-residential zoning districts.

While the TCA allows municipal regulation of cell tower and antenna location, such regulation is not unrestricted.  The TCA provides that municipalities may not ban telecommunications facilities within their boundaries.  Specifically, the TCA provides, among other things, that the municipality’s regulations or actions may not prohibit, or have the effect of prohibiting, the provision of personal wireless services.  If the TCA is violated, an aggrieved telecommunications provider may file a civil action in federal district court.  If the action is successful, the usual remedy is a court order directing the municipality to issue the necessary permits for the proposed telecommunications facilities.

In order for a telecommunications provider to demonstrate that the regulations or actions of a municipality violate the TCA by prohibiting, or having the effect of prohibiting, the provision of personal wireless services, the U.S. Court Appeals for the Third Circuit, whose jurisdiction includes the federal district courts in Pennsylvania, has construed the TCA as requiring the provider to demonstrate two things: (i) that a significant gap in service available to remote users exists in the area that the provider proposes to serve; and (ii) that the proposed manner to fill the gap will be the least intrusive alternative, including a showing that provider has made a good faith effort to identify and evaluate less intrusive alternatives such as less sensitive sites, alternative system designs, alternative tower designs, and placement of antennae on existing structures.¹

The Third Circuit Court has further held that, in order to demonstrate such “significant gap” in service, the provider is required to show that the area it proposes to serve is not already served by another provider.   In other words, the relevant “significant gap” is determined from the perspective of the remote user rather than from the perspective of the particular provider.  Accordingly, in denying an application for a proposed cell tower, a municipality, as well as the objecting neighbors, have taken some comfort that the denial would not run afoul of the TCA where the area proposed to be served by the tower was already served by another provider.

FAA Determination

However, the Third Circuit Court’s position, that the relevant “significant gap” in service is determined from the perspective of the user, has not been shared by other circuit courts. For example, the Courts of Appeal for the First and Ninth Circuits have concluded that the relevant “significant gap” is to be determined from the perspective of the particular provider in filling a gap in its own service coverage despite the presence of another provider in the proposed service area.²

In response to the foregoing difference among circuit courts, the Federal Communications Commission (FCC) in 2009 issued a Declaratory Ruling, In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B).³   In that Ruling, the FCC disagreed with the Third Circuit Court and sided with the other circuit courts.  As a result, the FCC interpreted the TCA as requiring the relevant “significant gap” to be determined from the perspective of the particular provider notwithstanding the existence of another provider in the proposed service area.  In so doing, the FCC concluded that any other interpretation of the TCA would be inconsistent with the TCA’s pro-competitive purpose.

U.S. District Court Decision

Less than a year later, the United States District Court for the Eastern District of Pennsylvania, issued an opinion in the case of Liberty Towers, LLC v. Zoning Hearing Board of Township of Lower Makefield.⁴   That case concerned the denial by the Zoning Hearing Board of an application by Liberty Towers for a use variance to construct a telecommunications facility which included a new cell tower.  Liberty Towers filed a complaint with the District Court alleging that the denial of the use variance had the effect of prohibiting personal wireless services contrary to the TCA.  Liberty Towers also appealed the Zoning Hearing Board decision to the Court of Common Pleas of Bucks County.

Lower Makefield Township, which intervened as a defendant in the District Court action, filed a motion to dismiss Liberty Tower’s complaint asserting that Liberty Towers failed to properly plead a significant gap in coverage in that other wireless service providers were able to provide services in the area affected by the proposed tower.  The District Court denied the Township’s motion to dismiss the complaint.

In denying the motion, the District Court relied on the FCC Declaratory Ruling, finding that the Ruling, with its interpretation of the TCA, was entitled to deference over the earlier Third Circuit Court holdings.  As a result, the Court followed the FCC interpretation that a significant gap in services is to be determined from the provider’s perspective without regard to whether service to the area in question is provided by another provider.  The District Court also held that Liberty Towers was entitled to contest the denial of the application by the Zoning Hearing Board before the District Court under the TCA despite also filing a parallel appeal from the Zoning Hearing Board decision to the Bucks County Court of Common Pleas.

Effect of FAA Determination and U.S. District Court Decision

In view of FAA Determination and Liberty Towers District Court decision, a municipality, as well as objecting neighbors to a proposed cell tower, can no longer rely on the presence of an existing provider to successfully challenge an alleged “significant gap” in service and defend against an alleged violation of the TCA arising from the municipality’s denial of an application for the proposed tower.  Rather, the principal focus of the municipality and objecting neighbors may be limited to efforts in showing that the proposed cell tower is not the least intrusive method to fill the alleged gap in service.

For legal services and representation concerning the location of cell towers on or near residential property or for any other land use matter, please contact the land use attorneys of OWM Law.

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¹See Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Board of Easttown Township, 331 F.3d 386 (3rd Cir. 2003); APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469 (3rd Cir. 1999).

²See Second Generation Properties, L.P. v. Township Pelham, 313 F.3d 620 (1st Cir. 2002); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (9th Cir. 2005).

³24 F.C.C.R. 13994, 24 FCC Rcd. 13994 (November 18, 2009).

 ⁴748 F.Supp.2d (E.D. Pa. 2010).

UPCOMING EVENTS

Read Legal Ease every other Sunday in the Pottstown Mercury.

Watch Legal Talk, brought to you by OWM, on PCTV, Tuesdays at 8:30 on Channel 28, and Thursdays at 9:30 p.m. on Channel 98, or on our website at www.owmlaw.com/legal_talk/legal_talk.php.

David A. Megay, Esq. and James C. Kovaleski, Esq., speaking at SCORE business planning seminar on 11/7/11 (contact SCORE at 610-327-2673).

O'Donnell,Weiss & Mattei, P.C.

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