2016: California Appeals Court

Upholds small cells ruling against T-Mobile, Crown Castle and Extnet

T–Mobile, Crown Castle and ExteNet Systems v. City and County of San Francisco

by Colin Gibbs | Sep 16, 2016 1:13pm; Original article here

A California appeals court upheld a decision granting local governments in that state relatively broad aesthetic control over small cells and other wireless structures in public rights-of-way.

T-Mobile, Crown Castle and ExteNet initially brought a suit against the city and county of San Francisco, claiming the municipality couldn’t require permits or review sites based on state law. A trial court ruled in favor of the city, claiming that it could prohibit specific installments for aesthetic reasons.

At the heart of the case is an ordinance adopted by San Francisco in 2011 that requires companies to obtain a permit before installing or modifying any wireless facility in the public right-of-way. “The City does not intend to regulate the technologies used to provide personal wireless services,” the ordinance reads. “However, the City needs to regulate placement of such facilities in order to prevent telecommunications providers from installing wireless antennas and associated equipment in the City’s public rights-of-way either in manners or in locations that will diminish the City’s beauty.”

T-Mobile argued that the ordinance was in conflict with a state public utility code that allowed telecoms to construct and maintain lines on public roads and highways “in such manner and at such points as not to incommode the public use.”

The case underscores the growing tensions between some municipalities and telecoms looking to build out their networks with small cells and other transmitters. Small cells are widely viewed as a crucial component for wireless carriers as data consumption continues to ramp up, particularly in densely populated areas.

The haste to roll out small cells has resulted in pushback from some municipalities. For instance, The Wall Street Journal reported in June that Sprint’s efforts to deploy as many as 70,000 of the transmitters across the country had been delayed due in large part to trouble obtaining permits.

Some of that pushback has clearly been warranted given reports of vendors installing small cells without permits or that are simply eyesores.

2014: Court Raises Bar for Least-Intrusive Means Test

By J. Sharpe Smith, August 20, 2014; Original article here.

August 19, 2014 — The U.S. Court of Appeals 9th Circuit upheld most of the district court’s summary judgment against American Tower in its lawsuit with the City of San Diego for rejecting its conditional-use permit requests for three existing towers in San Diego. In California, the decision will have a broader effect on over-the-counter approvals of collocations, as well as on least-intrusive means analysis of new sites.

The court case is the latest skirmish between a cell tower developer and a municipality and reflects tension between the wireless industry’s need for a more streamlined zoning system and the loss of control that the cities have felt since Congress passed Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.

Robert May, associate counsel, Telecom Law Firm, a municipal wireless consultant:

“As Congress has been working to restrict local authority, the circuit courts have been working in the opposite direction, buttressing local authority under the Telecommunications Act of 1996,”

Perhaps the most important legal point made in the decision was that the permit denial did not constitute an effective prohibition of service because American Tower did not demonstrate that its proposals were the least-intrusive means of filling a significant gap in coverage.

The Second and Third Circuits have defined “least-intrusive means” as the wireless site location and design that most closely conforms to the local values and still fills in a significant gap in service.

However, the First and Seventh Circuits hold that all that is needed is a showing that there are no alternative sites available to provide the needed coverage. Municipalities have attempted to use the various versions of least-intrusive-means language as a litmus test to judge whether a cell tower is appropriate for a certain location.

The court upped the ante saying that American Tower needed to actually provide the municipality with evidence allowing for a “meaningful” comparison of alternative sites and designs. Additionally, the City does not have to rely American Towers’ conclusions regarding the options but may judge for itself based on the evidence whether a zoning denial is in effect a prohibition of service.

May said.

“Even though it was about renewing the existing conditional-use permits, this decision impacts new sites the most because it affects the least-intrusive-means analysis. It makes it very clear that the wireless applicant bears the burden to show the government with evidence that is sufficient in the government’s reasonable determination that the site passes the least-intrusive means test for a significant gap in coverage”

Court Case Illuminates Problems of Time-limited Permits

From the outset of American Tower’s litigation, PCIA — The Wireless Infrastructure Association has maintained that time-limited permits significantly hinder network planning and management.
“As this case illustrates, the problem with time-limited permits is not just about slowing the build-out and upgrade of wireless networks, but also maintaining the existing infrastructure, built over a decade ago, that already supports wireless networks and serves consumers, businesses and public safety,” the association said in a prepared release. “We’re concerned that the 9th Circuit’s decision could undermine broadband deployment and California’s capacity to buttress and maintain a highly successful innovation economy.”

Court Rules in Favor of Public Hearings

American Tower V. City of San Diego also addresses the issue of whether or not a public hearing should be required under California state law for a change to an existing antenna structure. Wireless advocates hold that legislative language in Section 6409(a) that “a State or local government may not deny, and shall approve, any eligible facilities request” precludes the need for a public hearing.

The court states that the automatic approval of American Tower’s applications without a hearing would deprive landowners of their property rights and would violate due process.

“[American Tower] claims that the automatic approval of its conditional users permit applications would not constitute a substantial or significant deprivation … because the facilities are already in existence, their continued presence cannot possibly deprive adjacent landowners of any property rights . . . This argument ignores [American Tower’s] obligation to return the sites to their original condition now that the original conditional-use permits have expired by their terms . . . Dozens of antennas perched on hundreds of feet of towers alongside hundreds of square feet of equipment shelters may not seem like a cognizable impact to [American Tower], but we believe most landowners would beg to differ"

2016: Significant Gap in Coverage

"Significant Gap in Coverage" definitions apparently depend on the facts of each case, how they are argued and the mood of the judge.

Here is a 2016 case that shows that various courts’ determinations of "significant gaps in coverage" for Commercial Wireless Carriers are all over the map.

When comparing the substantial evidence in the Piedmont public record, the video we produced proves that there is NO SIGNIFICANT GAP in coverage outdoors in the City of Piedmont near the proposed Crown Castle/Verizon Close Proximity Microwave Radiation Antennas (CPMRA). In addition, the record shows that neither party (neither Crown Castle nor the public) provided in-vehicle or in-building coverage assessments.

Therefore, Crown Castle has not met the burden of proof by providing substantial evidence (based on actual RF measurements) proving that a gap in coverage exists, significant or otherwise.

The following are all quotes from the case:

"As to whether there was a significant gap, the district court recognized there are no bright-line rules but that each case is to be considered on its own, taking into account a number of factors courts have identified, including the gap’s physical size and location, the number of affected customers, dropped-call or failure rates, and “whether the purported gap affects a plaintiff’s ability to provide outdoor, in-vehicle, and in-building coverage.” See Orange Cty.-Poughkeepsie Ltd. P’ship v. Town of E. Fishkill, 84 F. Supp. 3d 274, 297 (S.D.N.Y. 2015) (collecting cases).

Footnote 2 on page 4 of the case:

Circuit courts are split over whether the significance of a gap should be viewed from the carrier’s perspective or the consumer’s perspective.

  • In a carrier-perspective jurisdiction, a carrier can meet the first prong of the test by showing a significant gap in the carrier’s existing service.

  • In a consumer-perspective jurisdiction, a carrier must show that no wireless carrier provides service to the area."

See City of Cranston, 586 F.3d at 49 (discussing split); T-Mobile Central, LLC v. Unified Gov’t of Wyandotte Cty./Kan. City, 528 F. Supp. 2d 1128, 1153–55, 1165 (D. Kan. 2007) (same), aff’d on other grounds, 546 F.3d 1299, 1303 (10th Cir. 2008).

Case Law Citations:

Case law recognizes that holes in coverage or “dead spots” that are limited in number or size do not constitute a significant gap in service. See, e.g., MetroPCS, Inc. v. City and Cty. of San Francisco, 400 F.3d 715, 733 n.10 (9th Cir. 2005), abrogated on other grounds by T-Mobile So., LLC v. City of Roswell, 135 S. Ct. 808 (2015); Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 631 (1st Cir. 2002); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643–44 (2d Cir. 1999).

To be sure, isolated “dead spots” or de minimis areas of noncoverage do not amount to a significant gap; examples include “a small residential cul-de-sac,” id., “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,” Willoth, 176 F.3d at 643.

On the other hand . . .

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. See, e.g., Town of E. Fishkill, 84 F. Supp. 3d at 297 (in-building and in-vehicle coverage); T-Mobile Central, LLC v. Unified Gov’t of Wyandotte Cty./Kan. City, 528 F. Supp. 2d 1128, 1168-69 (D. Kan. 2007) (in-building coverage), aff’d on other grounds, 546 F.3d 1299 (10th Cir. 2008); Nextel Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187, 1196 (W.D.N.Y. 2003) (in-vehicle coverage).