3rd Circuit Affirms Summary Judgment in Verizon’s Favor in Pa. Cell Tower Fight
The 3rd U.S. Circuit Court of Appeals, in a Friday opinion (docket 22-2392), affirmed the district court’s grant of summary judgment in Verizon’s favor, ruling that the denial by White Deer Township in central Pennsylvania of Verizon’s applications for seven variances to build a 195-foot monopole cell tower had the effect of prohibiting the provision of personal wireless services, in violation of the Telecommunications Act. Verizon leased 2,600 square feet of a 1.9-acre property to build the tower to fill a four-mile gap in wireless coverage along a desolate stretch of Interstate 80.
Verizon satisfied two requirements under applicable case law, first by presenting evidence of a significant gap in wireless coverage in the township and showing the proposed tower would fill it, said the opinion. White Deer’s zoning board “acknowledged the gap in its variance application denial and does not challenge its existence on appeal,” it said.
Verizon also satisfied a second requirement, showing it considered several alternatives to the proposed site, but finding “none were feasible,” said the opinion. It considered using other wireless facilities, building a tower in a distant agricultural district or erecting a smaller tower, “but none of these options would have effectively filled the coverage gap,” it said. Verizon also considered using a distributed antenna system instead of a monopole, “but found that technology to be more suited for open areas like parks and ball fields, not highways,” it said.
On appeal, the zoning board argued for the first time that Verizon should have challenged an indefinite 2000 Pennsylvania moratorium on the building of new cell towers on state forest land because the moratorium severely limited Verizon’s options for filling the service gap, said the opinion. In its application denial, the zoning board said Verizon couldn’t have exhausted all reasonable alternatives unless it legally challenged the Pennsylvania moratorium.
But the zoning board didn’t renew that argument in district court, said the opinion. The district court also found that the zoning board provided no evidence or argument suggesting another location or technological means to address the service gap, it said: “We agree with the District Court’s assessment of the record.” Because the zoning board didn’t raise its arguments before the district court, “it did not preserve them for appeal,” said the opinion.
Under applicable case law, a wireless carrier “need not disprove every possible alternative” for a cell tower’s construction, said the opinion. “Verizon provided sufficient evidence to show that it made a good-faith effort to fill the coverage gap in the least intrusive manner,” it said. The zoning board’s variance denial violated the TCA because it had the effect of prohibiting the provision of personal wireless services, it said.
The zoning board’s denial also fit the FCC’s “interpretation” of the “materially inhibit” standard under the TCA, said the opinion. Under that standard, local government action constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory market, it said. In its 2018 regulatory guidance, the FCC adopted the materially inhibit standard to determine whether government action qualifies as an effective prohibition under both Section 253 and 332 of the TCA, it said: “We believe that the FCC’s interpretation is a reasonable interpretation of the statute.”
A prohibition need not be complete or insurmountable to run afoul of the statute, said the opinion. Local government action that either imposes unreasonable fees or requires a provider to accept unreasonable costs also materially inhibits wireless services, it said. Not all local requirements violate the materially inhibit standard, and the FCC “offers a framework for local governments to follow when enacting legal requirements for wireless facilities,” it said. It suggests that ordinances, at least for aesthetic requirements, be reasonable and that they be “no more burdensome than those applied to other types of infrastructure deployments,” it said.