Service Gap in Montana County Can't Be Remedied With 30-Foot Tower: Complaint

Lake County, Montana, just north of Missoula, violated Vertical Bridge’s “federal rights” under the Telecommunications Act when it improperly denied applications to build a cell tower to remedy “an existing, significant, and well-known gap” in wireless coverage near the Finley Point area of Polson, alleged the telecom services provider in a complaint Wednesday (docket 9:23-cv-00091) in U.S. District Court for Montana in Missoula.

The county twice denied Vertical Bridge’s applications, effectively prohibiting it from remedying the service gap, said the complaint. After the first denial, Vertical Bridge and the county struck a binding agreement to toll the statute of limitations for that denial until a decision could be made by the county on a second set of applications, it said.

The second set of applications gave the county additional information detailing the existing gap in coverage, and showed Vertical Bridge’s site selection as affording “the least intrusive means” for the tower’s construction, said the complaint. It also documented the interest shown from other telecom providers in collocating to the new tower once the construction was approved, it said.

Yet the county denied the second set of applications, thus preventing Vertical Bridge from remedying the coverage gap, said the complaint. Both denials violate Section 332 of the TCA because the denials “have the effect of prohibiting the provision of personal wireless services” in and around the county. The county’s zoning ordinances, as applied to cell towers, also violate Section 253 of the TCA “because they have the effect of prohibiting the ability of carriers to provide telecommunications services” in and around the county, it said. The complaint asks the court to order the county to approve Vertical Bridge’s applications or to declare that the applications are “deemed approved,” it said.

After first looking for opportunities to collocate on existing towers in the area, an unnamed wireless carrier hired Vertical Bridge to locate, build and operate a cell tower to remedy the coverage gap and improve its overall network, said the complaint. But the zoning ordinances prohibit any structures, including cell towers, that exceed 30 feet in height, it said. The ordinances also require cell towers to be built within 500 feet of the centerline of Montana Highway 35, it said.

No cell towers are in or near Finley Point because no tower has been approved for placement there, said the complaint. The dearth of cell towers in Finley Point resulted in “extreme gaps in coverage and service for multiple carriers,” including the carrier that hired Vertical Bridge to build the cell tower, it said. Vertical Bridge can’t remedy the coverage gap with a 30-foot tower, it said: “No telecommunications carrier could remedy a gap in coverage in this area at that height.”

Many Finley Point residents wrote to the county complaining they experience poor cell coverage in the area, said the complaint. Vertical Bridge submitted a conditional use permit application and two variance applications March 31 to build a 160-foot monopine tower to adequately remedy the existing gap in cell coverage, it said. The first variance application was to build the tower at the required height to meet the carrier’s objectives, it said.

The second variance was to exempt Vertical Bridge from the ordinances’ requirement that the tower be built within 500 feet of Highway 35's centerline, said the complaint. That’s because the existing topography would have required Vertical Bridge to build a much taller, 250-foot “undisguised” tower to achieve its coverage objectives within 500 feet of the centerline, it said. Building the tower "farther from the highway centerline" best achieves the ordinance’s goal of limiting the tower’s “height and visibility,” it said.

The first denial on April 18, and the second July 18, followed county staff recommendations that the applications be denied for not meeting the ordinances’ requirements on tower heights and locations, said the complaint. The parties agreed that Aug. 17 was the deadline for appealing the denials, it said: “Thus, this lawsuit is timely filed.”