Second Generation Properties, L.P. v. Town of Pelham

United States Court of Appeals
For the First Circuit

No. 02-1688

SECOND GENERATION PROPERTIES, L.P.,

Plaintiff, Appellant,

v.

TOWN OF PELHAM,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Andrew R. Schulman with whom Getman, Stacey, Tamposi,
Schulthess & Steere, P.A. was on brief for appellant.

Diane M. Gorrow with whom Soule, Leslie, Kidder, Sayward
& Loughman, P.L.L.C. was on brief for appellee.

December 17, 2002
 LYNCH, Circuit Judge. In this Telecommunications Act

case the plaintiff, a landowner, was denied permission to build a

wireless communications tower by the Pelham, New Hampshire Zoning

Board of Appeals (ZBA or Board). The federal district court, on

cross motions for summary judgment, rejected the landowner's claims

that (1) the ZBA decision was not supported by substantial evidence

and (2) the decision was an unlawful effective prohibition on the

provision of wireless services. In doing so, the district court

adopted a rule that so long as any carrier provides service in the

area, there is never a basis for a claim that a town has

effectively prohibited personal wireless service, in violation of

the Act, by preventing other carriers from filling a significant

geographic gap in their cellular networks. This holding raises a

novel and interesting question. We disagree with the district

court's rule, but affirm on other grounds.

I.

Second Generation planned to build on its land in Pelham1

a telecommunications tower which would permit carriers to provide

service along N.H. Route 128, a state highway. Pelham has four

commercial cell towers, one approved after the ZBA denied Second

1
Pelham, New Hampshire is on the Massachusetts border
just north of Lowell, Massachusetts and Dracut, Massachusetts
and midway between Salem, New Hampshire and Nashua, New
Hampshire. It lies between Interstate 93 and U.S. 3, the two
major north-south highways serving New Hampshire's southern
tier.

-2-
Generation's first variance application. Pelham has six licensed,

operating wireless carriers: Voicestream Communications; AT&T

Wireless; Sprint PCS; Verizon; U.S. Cellular; and Nextel

Communications (as they are currently known). Cingular Wireless is

not among them. Second Generation owns a ninety acre, heavily

wooded lot at the top of Seavy Hill (also called Spaulding Hill)

directly above a portion of Route 128, which runs through a narrow

valley between two ridges of hills. Daily traffic on this portion

ranges from 10,000 cars, just south of N.H. Route 111A, to around

4,500 cars, north of Route 111A.

Two wireless carriers, AT&T Wireless and Voicestream,

originally committed to use the Second Generation tower, but

Voicestream withdrew from its agreement, leaving only AT&T under

contract. Two other carriers, Sprint PCS and Nextel, had expressed

interest in using the proposed tower.

In 1998, Second Generation applied for a special

exception to erect a 400-foot cell tower on Spaulding Hill. The

zoning ordinance then provided that communications towers in

residential zones were a permitted use, subject to obtaining a

special exception. The Zoning Board of Appeals (ZBA) denied the

request for a special exception on June 8, 1998. Second Generation

appealed to the state Superior Court, which upheld the decision.

Second Generation then applied to build a smaller, 250-foot cell

tower.

-3-
 In March 1999, the town passed a Personal Wireless

Services Ordinance which authorizes the town's Planning Board to

issue conditional use permits for the construction of cell towers

in a newly established "Telecommunications Overlay Zone." The

Overlay Zone includes only areas currently zoned for industrial and

commercial uses, and is separated from Route 128 by hills. A

variance must be obtained from the ZBA to construct a tower outside

the Overlay Zone. Since Second Generation's property is in a

residential zone, it needed a variance.2

In February 2000, Second Generation filed a federal court

complaint alleging that the ordinance violated the TCA by

effectively prohibiting the provision of personal wireless

services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) (2000),

and unreasonably discriminating against some licensed wireless

carriers, in violation of § 332(c)(7)(B)(i)(I). It also brought a

claim against the town under 42 U.S.C. § 1983 (2000). The court

issued a stay in August 2000 to allow Second Generation to seek a

variance from the ZBA.

2
The Planning Board had obtained a legal opinion and public
comment, conducted research on limiting cell towers to commercial
or industrial zones, and discussed associated technological,
economic, safety, and social issues. It met with Blaine Hopkins,
Second Generation's expert; Hopkins proposed a multi-district
overlay zone, which the board rejected. The Planning Board did
not, however, retain its own expert, contact wireless carriers,
commission a radio frequency propagation study, evaluate the
characteristics of various sites, or attempt to formally assess the
quality of existing service.

-4-
 At the ZBA variance hearing, Second Generation presented

testimony from its engineers (one a Voicestream employee),

consultants (one from AT&T), attorneys, and its general partner.

Representatives of AT&T and Voicestream stated that their networks

had coverage gaps on Route 128.3 Blaine Hopkins, a Second

Generation consultant, purported to show that the presence of a

cell tower has no impact on property values, and that the alleged

gaps could not be serviced by existing Pelham towers or new 190-

foot towers in the Overlay Zone. A Second Generation executive

testified that the cell tower would generate less noise and traffic

than would a single residence, that the surrounding topography

would hide the lower part of the tower, and that research by a

local appraiser confirmed that the tower would not diminish the

value of surrounding properties.

Numerous abutters and other Pelham residents testified

that the tower would interfere with their view and spoil the

pristine character of the neighborhood. Three abutters said that

the tower would diminish property values; one reported that local

real estate firms had informed him that the surrounding homes would

be devalued by approximately fifteen percent. A ZBA member, also

a realtor, strongly criticized the methodology used in Mr.

Hopkins's analysis of the impact of cell towers on property

3
The town's planning director acknowledged that her own cell
phone did not work on the southern part of Route 128.

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values.4 Two residents contended that the Second Generation

property could be put to other uses: for agriculture, residential

development, tree harvesting, or elderly housing. One abutter and

one ZBA member stated that they had phone service within the

alleged gap. A resident also testified that the area could be

largely served by a tower in a commercial zone in Dracut,

Massachusetts.

The Board voted unanimously to deny the variance on the

ground that Second Generation failed to prove "hardship" as

required by New Hampshire law.

Second Generation amended its complaint to challenge the

ZBA decision as well as the ordinance. It alleged that Pelham had

instituted an "absolute prohibition" against the construction of

cell towers in residential zones, that at least four of the six

licensed wireless carriers had significant coverage gaps along

Route 128, and that it would be impossible to eliminate these gaps

without building a cell tower in a residential zone. The ordinance

and waiver, it asserted, violated 47 U.S.C. § 332(c)(7)(B)(i) by

effectively prohibiting wireless service and unreasonably

discriminating against the four carriers. It also added new claims

that the ZBA's waiver denial was not supported by adequate written

4
The ZBA member observed that in a housing market
appreciating at a rate of 1.5 percent per month, the fact that home
values have remained stable over a few years is consistent with the
proposition that cell towers reduce property values.

-6-
findings or substantial evidence in the record, in violation of

§ 332(c)(7)(B)(iii). Second Generation dropped its 42 U.S.C.

§ 1983 claim and its request for damages; it now requested only

that the court enjoin the town ordinance.

Shortly after the ZBA decision, the New Hampshire Supreme

Court decided Simplex Technologies, Inc. v. Town of Newington, 766

A.2d 713 (N.H. 2001), which relaxed the criteria for proving

hardship in zoning board proceedings. Id. at 717. In May 2001,

both parties filed summary judgment motions. On June 27, 2001, the

district court remanded the case to the ZBA for a redetermination

of hardship.

At the ZBA hearing on September 24, 2001, Second

Generation presented testimony from two experts and two attorneys;

several residents again testified in opposition. The hearing

yielded the following new information. The Pelham Planning

Director testified that the Planning Board was considering proposed

subdivisions with approximately forty-five homes near the Second

Generation tract. Second Generation's radio frequency engineer,

Anthony Wells, presented a propagation study purporting to show

that the alleged gap could not be serviced by existing Pelham

towers, new 195-foot towers in the Overlay Zone, or an existing

tower in Hudson, New Hampshire. Second Generation also made a

number of concessions. First, Second Generation experts

acknowledged that the company's tract was not the only site that

-7-
could provide coverage in the alleged gap. Second, they did not

contest that a tower shorter than 250 feet could allow a limited

number of carriers to service the alleged gap. Second Generation

executives later said that they were willing to settle, at least

temporarily, for a variance to build a 199-foot tower. Finally,

when counsel to an abutter stated that carriers in New Hampshire

can enter into right-of-way leases along state highways, Second

Generation acknowledged that it had not explored this option and

was unsure about its effectiveness.

The ZBA denied the waiver in a written decision dated

September 27, 2001, finding that Second Generation did not meet any

of the five conditions for obtaining a waiver, and, more

specifically, that Second Generation had failed to meet any of the

three unnecessary hardship criteria.

The parties again filed cross-motions for summary

judgment in district court and agreed to resolve the case

essentially on a case-stated basis. The court had before it the

record developed as a result of the ZBA hearings; for the effective

prohibition claim, it also considered other evidence submitted by

the parties in support of their motions. Second Generation

submitted affidavits that four of the six carriers licensed to

provide wireless services in Pelham experienced gaps in coverage

along Route 128, but that one licensed carrier, U.S. Cellular, had

-8-
roaming coverage in the alleged gap via the network of Cingular

Wireless.

On May 21, 2002, the district court granted Pelham's

motion for summary judgment and denied Second Generation's motion.

Second Generation Props., L.P. v. Town of Pelham, No. Civ. 00-90-B,

2002 WL 1018923, at *6 (D.N.H. May 21, 2002). The court held that

Second Generation did not meet its burden to show that there was a

significant gap in coverage or its burden to show that the gap

could not be filled by other means. It found that a gap is

significant only if the area in question is not served by any

carrier. Id. at *3. The court found that U.S. Cellular provided

roaming service and Nextel might provide regular service along the

relevant portion of Route 128. Id. It noted that Second

Generation's propagation study did not consider the possibility

that a carrier could obtain a waiver of the Ordinance's 199-foot

height limitation and build a taller tower in the Overlay Zone.

Id. In addition, the court observed that Second Generation failed

to investigate whether other sites outside the Overlay Zone could

provide the necessary service. Id. The district court also held

that substantial evidence supported the ZBA's decision to deny the

waiver. Id. at *4-*5.

II.

The TCA preserves state and local authority over the

siting and construction of wireless communication facilities,

-9-
subject to five exceptions specified in the Act. 47 U.S.C.

§ 332(c)(7)(B); see Town of Amherst v. Omnipoint Communications

Enters., Inc., 173 F.3d 9, 12 (1st Cir. 1999). Two exceptions, the

substantial evidence and effective prohibition clauses, are

pertinent here.5 If a board decision is not supported by

substantial evidence, § 332(c)(7)(B)(iii), or if it effectively

prohibits the provision of wireless service, § 332(c)(7)(B)(i)(II),

then under the Supremacy Clause of the Constitution, local law is

pre-empted in order to effectuate the TCA's national policy goals.

A. Substantial Evidence Attack on ZBA Decision

Second Generation argues that the ZBA's decision is not

supported by substantial evidence and so is invalid. The

substantial evidence test is highly deferential to the local board.

See Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d

713, 718 (1st Cir. 1999). As Southwestern Bell Mobile Systems,

Inc. v. Todd, 244 F.3d 51 (1st Cir. 2001), explains:

The 'substantial evidence' standard of review is the same
as that traditionally applicable to a review of an
administrative agency's findings of fact. Judicial
review under this standard, even at the summary judgment
stage, is narrow. . . . Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. . . . [T]he
possibility of drawing two inconsistent conclusions from

5
A third exception is that a local board decision will not be
upheld if it unreasonably discriminates "among providers of
functionally equivalent services." § 332(c)(7)(B)(i)(I). Although
such a claim was made in the complaint, it has been abandoned.
Second Generation, 2002 WL 1018923, at *2 n.4.

-10-
 the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence.

Id. at 58 (internal quotations omitted). In conducting substantial

evidence review, a reviewing court normally considers only evidence

contained in the administrative record (i.e., the evidence

presented to the ZBA). See Nat'l Tower, LLC v. Plainville Zoning

Bd. of Appeals, 297 F.3d 14, 20-21 (1st Cir. 2002).

In order to qualify for a variance under New Hampshire

law, the landowner must show that meeting the normal zoning

requirements poses an unnecessary hardship. Olszak v. Town of New

Hampton, 661 A.2d 768, 771 (N.H. 1995).6 Under New Hampshire law,

applicants must meet a three-prong test to establish unnecessary

hardship:

(1) a zoning restriction as applied to their property
interferes with their reasonable use of the property,
considering the unique setting of the property in its
environment; (2) no fair and substantial relationship
exists between the general purposes of the zoning
ordinance and the specific restriction on the property;
and (3) the variance would not injure the public or
private rights of others.

Simplex Techs., Inc., 766 A.2d at 731-32. The ZBA found that

Second Generation did not meet any of the prongs. It explained

6
Olszak provides that in order to obtain a variance,
Second Generation had the burden to show: (1) a denial of the
variance would result in unnecessary hardship to the
applicant; (2) surrounding properties would suffer no
diminution in value; (3) the proposed use would not be
contrary to the spirit of the ordinance; (4) granting the
variance would benefit the public interest; and (5) granting
the variance would do substantial justice. 661 A.2d at 771.

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that the land, given its unique setting, could reasonably be used

for the residential purposes for which it was zoned and that there

was a fair and substantial relationship between the ordinance and

the restriction on the property because the ordinance "prohibits

obtrusive commercial uses from infiltrating the residential zone."

Both of these determinations are amply supported by

substantial evidence. There was considerable, unrebutted evidence

that Second Generation's land is well suited for developing housing

and that if Second Generation were granted a variance, then

inhabitants of the aptly-named Scenic View Drive would look out

over the top of a cell tower. The district court correctly

characterized the administrative record as showing:

The area [abutting the proposed tower] has no towers or
other non-conforming commercial uses. Roads in the area
are not lit by street lamps. Moreover, the property is
located in a section of town that is prized for its
spectacular views of the surrounding countryside.
Several of the residences that would be affected by the
proposed tower have deed restrictions protecting their
views. Further, while only a limited number of existing
residences would have a view of the tower, it is unclear
whether it would also impair the views of any of the
homes that are likely to be built in several proposed
subdivisions in the area.

Second Generation, 2002 WL 1018923, at *5. In such a pristine

(residential) setting, a 250-foot tower would be an obtrusive

(commercial) use.

Second Generation protests that this court may only look

to the Board's statements, and not to the district court's

characterization. Second Generation confuses two different

-12-
doctrines. This is not an instance in which the Board is

improperly attempting to justify its decision in court on different

grounds than it gave in its written decision. Nat'l Tower, 297

F.3d at 21. Instead, this is simply an instance in which the

district court reviewed the record developed by the Board and

provided more detail than did the Board in its decision. That is

entirely in accordance with the Act. Local zoning boards are lay

citizen boards, and while their decisions must be in writing, the

boards need not make extensive factual findings in support of their

ultimate decision. S.W. Bell Mobile Sys., Inc., 244 F.3d at 59-60.

The findings here are sufficient to permit judicial review, and

that ends the challenge.

B. Effective Prohibition Challenge

The more difficult question is whether, on the evidence

before the district court, the denial of the variance sought by the

landowner constituted an unlawful effective prohibition on the

provision of wireless services. See § 332(c)(7)(B)(i)(II). This

in turn raises a series of issues inherent in the "effective

prohibition" analysis, including the requirements to show an

effective prohibition; the contours of the "significant gap"

formulation previously used by this court; and the relevance of

evidence of coverage provided by roaming service, towers in other

towns, and carriers not licensed in the town. Most significantly,

it raises the question of the correctness of the rule adopted by

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the district court that if any carrier provides any coverage within

a purported gap, then there cannot, as a matter of law, be an

effective prohibition on the provision of wireless services. We

disagree with and reject any such rule, but ultimately agree with

the court's alternate ground for holding that there was no

effective prohibition.

1. Scope of Review

Unlike the substantial evidence issue, the issue of

whether the ZBA has prohibited or effectively prohibited the

provision of wireless services is determined de novo by the

district court. Nat'l Tower, 297 F.3d at 22. The district courts

are free to consider additional evidence. Amherst, 173 F.3d at 16

n.7. In turn, this court reviews the district court's legal

conclusions de novo. Nat'l Tower, 297 F.3d at 22. If the facts

had been contested before the district court, we would review the

district court's factual conclusions for clear error. Id. If the

parties had each simply moved for summary judgment, we would review

the district court's summary judgment conclusions de novo. See ATC

Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002).

Here, the parties agreed that the trial judge could resolve the

issues on a case-stated basis. Second Generation, 2002 WL 1018923,

at *1. Accordingly we review the inferences drawn by the district

court from the stated facts for clear error. See Garcia-Ayala v.

Lederle Parenterals, Inc., 212 F.3d 638, 643-45 (1st Cir. 2000).

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In the end, we would reach the same result here regardless of which

of these standards of review applied.

2. General Standards for Anti-Prohibition Clause

The rule in this circuit is that the TCA's anti-

prohibition clause is not restricted to blanket bans on cell towers

imposed by towns. Amherst, 173 F.3d at 14. The clause may, at

times, apply to individual zoning decisions. Id. In invoking the

effective prohibition language, "the burden for the carrier . . .

is a heavy one: to show from language or circumstances not just

that this application has been rejected but that further reasonable

efforts are so likely to be fruitless that it is a waste of time

even to try." Id. A landowner tower developer is in no better

position than a carrier and has an equally heavy burden.7

The TCA does not itself expressly authorize local zoning

boards to consider whether individual decisions amount to an

"effective prohibition." See 47 U.S.C. § 332(c)(7). Since board

actions will be invalidated by a federal court if they violate the

effective prohibition provision, many boards wisely do consider the

point. See, e.g., Amherst, 173 F.3d at 16. There appears to be

nothing in New Hampshire law to preclude a board from considering

7
The landowner who wishes to build a tower on its site is a
unique plaintiff. A landowner does not have an incentive to
identify possible sites on land it does not own. A landowner
differs from a service provider, whose incentive is to choose from
among all possible sites the option providing the cheapest, highest
quality service.

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the issue. The ZBA here implicitly did so by concluding that

Second Generation had failed to show that there were no alternative

sites to build a tower that would solve whatever coverage problem

existed.8 No special deference is given to the board's conclusion

on this point.

This court has identified two sets of circumstances where

there is a prohibition "in effect." The first is where the town

sets or administers criteria which are impossible for any applicant

to meet. See id. at 14. That was the situation in National Tower,

which affirmed the district court's finding that a permit denial

constituted an effective prohibition. See 297 F.3d at 23-25. The

second involves the situation where the plaintiff's existing

application is the only feasible plan; in that case, denial of the

plaintiff's application "might amount to prohibiting personal

wireless service." Amherst, 173 F.3d at 14; accord Sprint

Spectrum, L.P. v. Willoth, 176 F.3d 630, 640, 643 (2d Cir. 1999).9

8
It is not the town's burden, in response to an effective
prohibition claim and where plaintiffs have produced no contrary
evidence, to show in the first instance that alternative sites do
exist. Nat'l Tower, 297 F.3d at 24. Nor is it the town's burden,
in responding to a claim that its decision is not supported by
substantial evidence, to show that alternative sites were
available. Southwestern Bell, 244 F.3d at 63.
9
The Third Circuit has suggested that the denial of a permit
for a site that is the least intrusive means to close a significant
gap in service would amount to a violation of the anti-prohibition
clause. APT Pittsburgh Ltd. P'ship v. Penn Township Butler County,
196 F.3d 469, 479-80 (3rd Cir. 1999); see Cellular Tel. Co. v.
Zoning Bd. of Adjustment, 197 F.3d 64, 70 (3rd Cir. 1999). The
question of rejection of the least intrusive means must itself be

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These factors, when pertinent, should be analyzed in determining

whether there is an effective prohibition. This means, of course,

that there can be no general rule classifying what is an effective

prohibition. It is a case-by-case determination.

Second Generation initially attempts to show a violation

of the anti-prohibition clause by arguing that the Personal

Wireless Services Ordinance restricting the location of the towers

to certain districts is a blanket prohibition. That attack is

meritless. The Ordinance does not restrict the power to grant

variances to build towers in other districts, the town has allowed

four commercial towers to be constructed, and the town has not said

as a categorical matter that it would never grant a variance

outside the Overlay Zone. There is no credible claim of a blanket

prohibition.

Second Generation then argues that the individual

variance denial is an effective prohibition. The question of

whether an individual denial is an effective prohibition is largely

fact-driven. Since the effective prohibition clause is not self-

evaluated in the context of the other options available. See 360
Degrees Communications Co. v. Bd. of Supervisors, 211 F.3d 79,
87 (4th Cir. 2000) ("A community could rationally reject the least
intrusive proposal in favor of a more intrusive proposal that
provides better service or that better promotes commercial goals of
the community."). This court has not addressed that precise point,
nor need we do so here. See generally Indus. Communications and
Elecs., Inc. v. Town of Falmouth, 2000 WL 761002 (D. Me. May 9,
2000) (order) (distinguishing between the Third Circuit's least
intrusive means approach and the First Circuit's Amherst analysis).

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explanatory, the importance of particular facts must be seen

through the prism of the statutory language and intent. Overall,

the TCA attempts to reconcile the goal of preserving local

authority over land use with the need "to facilitate nationally the

growth of wireless telephone service." Amherst, 173 F.3d at 13.

Congress intended to promote a national cellular network. Id.;

see also Todd, 244 F.3d at 57 (TCA reflects Congress's intent

to rapidly expand personal wireless services); President's

Statement on Signing the Telecommunications Act of 1996

(February 8, 1996), reprinted in 3 Federal Telecommunications

Law: A Legislative History of the Telecommunications Act of

1996, doc. 95, at 208 (B.D. Reams, Jr. & W.H. Manz eds., 1997)

(TCA intended to promote universal service). The Act aims to

secure lower prices and better service for consumers by opening all

telecommunications markets to competition. See Telecommunications

Act of 1996, Pub. L. No. 104-104, pmbl., 110 Stat. 56, 56; H.R.

Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996

U.S.C.C.A.N. 10, 10.10 Thus, the Act attempts to reconcile the

interests of consumers and residents (many of whom are themselves

cell phone users).

10
The committee reports and presidential and vice-
presidential statements on the TCA and its precursors do not
discuss the meaning of the effective prohibition section. See
1, 3 Federal Telecommunications Law, supra.

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a. "Significant Gap" Formulation

Courts have provided a judicial gloss on the effective

prohibition language of the statute in order to determine whether

a coverage problem exists at all. We have concluded that a town's

refusal to permit a tower that is needed to fill a "significant

[geographic] gap" in service, where no service at all is offered in

the gap, would violate the effective prohibition clause. See Nat'l

Tower, 297 F.3d at 20; accord Willoth, 176 F.3d at 643; APT

Pittsburgh Ltd. P'ship, 196 F.3d at 480. The context in which a

question arises is important. In National Tower, where this

circuit adopted and employed a significant gap analysis, it was

undisputed that no carrier provided coverage in the geographic gap

area and that the gap affected the ability of a large number of

users to connect or maintain a connection, id. at 17-18. The issue

addressed in National Tower by the "significant gap" formulation,

then, had to do with when a purported geographic gap, served by no

carrier, is large enough in terms of physical size and number of

users affected to amount to an effective prohibition, rather than

being a mere, and statutorily permissible, dead spot. Federal

regulations contemplate that areas enjoying adequate coverage will

still include spots without reliable service. See 360 Degrees

Communications Co., 211 F.3d at 87; 47 C.F.R. § 22.911(b) (2001);

see also id. § 22.99 (defining dead spots as "[s]mall areas within

-19-
a service area where the field strength is lower than the minimum

level for reliable service").

Like many legal concepts, the "significant gap" language

used in one context is now being used by the parties to address a

qualitatively different and much more complex set of problems. The

parties use the phrase to frame arguments about whether an

effective prohibition can exist in a geographic area where a

carrier already provides some service. The ultimate question of

course remains whether a given decision, ordinance, or policy

amounts to an effective prohibition on the delivery of wireless

services. Inquiries into the existence and type of gap are merely

helpful analytic tools toward that end.11

b. Consideration of Services by Out-of-town Carriers

Second Generation attempts to buttress its argument by

saying the coverage that does exist should be ignored and so this

is actually a situation where no carrier provides coverage. The

only carriers that provide coverage in the purported gap are U.S.

Cellular, which provides roaming service via the Cingular Wireless

network, and Cingular Wireless, which is not licensed in Pelham and

provides service from a tower in Dracut, Massachusetts.

11
Perhaps in recognition of the complexity of applying such
an analysis in varying situations, the Fourth Circuit found
unhelpful "additional formulation[s]" such as the "significant gap"
phrase. 360 Degrees Communications Co., 211 F.3d at 87.

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 Second Generation raises a question of law as to whether

the town or court may consider service by these carriers. In

ascertaining the existence and extent of coverage for purposes of

resolving an effective prohibition claim (and indeed the proposed

solution), we hold it permissible to consider (1) roaming service,

(2) the coverage provided from towers in other towns, and (3)

service by carriers not licensed in the jurisdiction at issue. See

Cellular Tel. Co., 197 F.3d at 71 ("Under the right conditions it

may be possible to provide an adequate level of personal wireless

services to a particular community solely through facilities

located outside that community."); accord Omnipoint Communications

MB Operations, LLC v. Town of Lincoln, 107 F. Supp. 2d 108, 117 n.8

(D. Mass. 2000).

Second Generation protests that this result would allow

Pelham to displace onto other jurisdictions the obligation to host

new cell towers and would infringe the rights of carriers that

purchased FCC licenses for the geographic area including Pelham.

Both these arguments overlook the fact that licensed carriers may

be able to co-locate on the same (existing) tower(s) used by out-

of-town carriers.12 The argument, moreover, runs contrary to the

12
In this case, no information has been provided as to
whether towers in nearby towns can host additional carriers.
See generally R. Long, Allocating the Aesthetic Costs of
Cellular Tower Expansion: A Workable Regulatory Regime, 19
Stan. Envtl. L.J. 373, 386-87 (2000) (observing that "co-
location" on the same tower of antennas belonging to multiple

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TCA's emphasis on protecting the interests of consumers and

residents rather than those of carriers and developers.

3. Rejection of Rule That Any Coverage Equals No Effective
Prohibition

This case squarely raises the issue, which has divided

the courts, of whether there can ever be an effective prohibition

of personal wireless service if there is any carrier that provides

coverage in the geographic gap area. The district court,

following the Third Circuit holding in ATP Pittsburgh Ltd.

Partnership, 196 F.3d at 480, adopted the rule that if any

coverage is provided in the gap area by any carrier (including

roaming service through a tower in a different town) then

there can be no effective prohibition. 13

carriers has become an increasingly common practice). We
would view very differently a case in which a town attempted
to deflect onto another jurisdiction the need to build new
towers necessary to provide services to meet the TCA's goals
where no service has been provided.
13
The district court also thought the Second Circuit had
adopted such a rule in Sprint Spectrum L.P. v. Willoth, 176 F.3d
630 (2d Cir. 1999). We read the case differently. The relevant
passage appears to hold that once a carrier has adequate
(though less than perfect) service in an area, local boards
can deny applications by that carrier for additional towers
without violating the effective prohibition clause. Id. at
643. This reading is buttressed by the context in which this
passage appears: the following two paragraphs explain that
there is no effective prohibition because Sprint could provide
adequate coverage with just one or two towers rather than the
three towers it requested in its application. Id. at 643-44.
The court's effective prohibition analysis does not discuss
the provision of wireless services by other carriers. Id. at

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 A flat "any service equals no effective prohibition"

rule would say a town could refuse permits to build the towers

necessary to solve any number of different coverage problems. 14

639-44. Furthermore, its stress on adequate coverage should
logically mean that circuit would oppose an "any coverage
equals no gap" rule. See id. at 643 ("Furthermore, once an
area is sufficiently serviced by a wireless service provider,
the right to deny applications becomes broader: State and
local governments may deny subsequent applications without
thereby violating subsection B(i)(II).") (emphasis added).
14
Problems could arise in the following situations.
1) The only carrier providing service in a gap area does not
provide service nationwide. The established carriers want to fill
a significant geographic gap in their nationwide networks by
constructing a tower in the town. The town denies the established
carriers' application to build a tower in the only feasible
location on the ground that a carrier already provides service in
the town.
2) A gap is served by carrier A, which provides coverage for 1% of
the cell phone users in the area. Some 99% of local users, who
subscribe to different carriers, have no service in the gap. There
is no more room on the tower used by carrier A to add the other
carriers and the town denies a permit to build a tower in the only
other feasible location.
3) Carrier A, using a minority technology, provides service
in a gap. A town then refuses to permit the construction of
a tower to serve the carriers who use the alternative and
prevalent technology. Or vice-versa. There are no feasible
alternatives.
4) Carriers first provide service in the geographic gap to a
small percentage of potential users and then the number of
subscribers grows exponentially such that there is a
deterioration of services. The majority of calls fail in a
new geographic gap but occasionally some go through. The
carriers want to build a new tower in the only feasible
location so the customers can receive uninterrupted service.
The town denies a permit.
5) A new generation of technology emerges but it cannot
compete with older technologies because carriers using the new
technology cannot build towers in the only feasible locations.
The town denies permits on the ground that old technology

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It is highly unlikely that Congress intended the many

qualitatively different and complex problems to be lumped

together and solved by a rule for all seasons that any

coverage in a gap area automatically defeats an effective

prohibition claim. Such a rule would be highly problematic

because it does not further the interests of the individual

consumer. To use an example from this case, it is of little

comfort to the customer who uses AT&T Wireless (or

Voicestream, Verizon, Sprint, or Nextel) who cannot get

service along the significant geographic gap which may exist

along Route 128 that a Cingular Wireless customer does get

some service in that gap. Of course, that AT&T customer could

switch to Cingular Wireless. But were the rule adopted, the

same customer might well find that she has a significant gap

in coverage a few towns over, where AT&T Wireless, her former

provider, offers service but Cingular Wireless does not. The

result would be a crazy patchwork quilt of intermittent

coverage. That quilt might have the effect of driving the

industry toward a single carrier. When Congress enacted

legislation to promote the construction of a nationwide

cellular network, such a consequence was not, we think, the

carriers already provide service in the area.

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intended result, see, e.g., S. Rep. No. 104-23, Purpose of the

Bill (1995), reprinted in 1 Federal Telecommunications Law,

supra, doc. 2, at 1 (bill aims to "open[] all

telecommunications markets to competition"); H.R. Rep. No.

104-204, Purpose and Summary (1995), reprinted in 1 Federal

Telecommunications Law, supra, doc. 3, at 47-50. 15 The fact

that some carrier provides some service to some consumers does

not in itself mean that the town has not effectively

prohibited services to other consumers.

Our reading of the statute also rests on its language:

(i) The regulation of the placement,
construction, and modification of personal wireless
service facilities by any State or local government
or instrumentality thereof --
. . . .
(II) shall not prohibit or have the
effect of prohibiting the provision of personal
wireless services.

15
That the district court's rule may have some anti-
competitive effects seems reasonable. But no evidence on the
severity of these effects or other economic implications has
been provided by the parties. In the absence of such
evidence, we proceed cautiously. See Denver Area Educ.
Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 742 (1996)
("[A]ware as we are of the changes taking place in the law,
the technology, and the industrial structure related to
telecommunications, we believe it unwise and unnecessary
definitively to pick one analogy or one specific set of words
now.") (citation omitted); id. at 777 (Souter, J., concurring)
(because the technology is continuing to evolve, and because
technological changes have substantial regulatory
implications, "we should be shy about saying the final word
today about what will be accepted as reasonable tomorrow").

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§ 332(c)(7)(B). We start with the fact that Congress used

"services" and not "service." A straightforward reading is that

"services" refers to more than one carrier. Congress contemplated

that there be multiple carriers competing to provide services to

consumers. That one carrier provides some service in a geographic

gap should not lead to abandonment of examination of the effect on

wireless services for other carriers and their customers. Next,

the phrase "have the effect of prohibiting" may well refer to

actions that mostly prohibit. For example, B.A. Garner, A

Dictionary of Modern Legal Usage 256 (2d ed., 1995), gives as

the first definition of effective "having a high degree of

effect." (emphasis added). Accord B.A. Garner, A Dictionary

of Modern American Usage 237-38 (1998). Moreover, a common

reading of the word "prohibition" standing alone would apply

to a situation of denial of services to the vast majority of

users. See, e.g., Oxford English Dictionary (2d ed. 1989)

(defining "prohibit" as "to prevent, preclude, hinder")

(emphasis added). Thus Congress may well have meant the

effective prohibition clause to reach certain situations in

which there is some coverage in a gap.

One might hypothesize that the "unreasonable

discrimination" language of the Act would adequately address

situations where customers of some but not all carriers lack

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service in an area. The argument would proceed that the anti-

prohibition clause should be strictly read as applying only to

de jure and de facto absolute prohibitions. This court has

not yet explicated the unreasonable discrimination clause and

we do not do so here. Nevertheless, the law from other

circuits gives little reason to think this clause will

effectively safeguard congressional efforts to promote the

building of a nationwide cellular network. Some courts have

held that towns can discriminate against proposals that have

different aesthetic or safety ramifications, Willoth, 176 F.3d at

638-39; see also H.R. Rep. No. 104-458 (1996), reprinted at 1

Federal Telecommunications Law, supra, doc. 5, at 208; S. Rep. No.

104-230 (1996), reprinted in 1 Federal Telecommunications Law,

supra, doc. 6, at 208, or a different structure, placement, or

cumulative impact, see Nextel W. Corp. v. Unity Township, 282 F.3d

257, 267 (3rd Cir. 2002). See generally AT&T Wireless PCS, Inc. v.

City Council of Va. Beach, 155 F.3d 423, 427 (4th Cir. 1998) (some

discrimination between providers of functionally equivalent

services is allowed).

Towns, of course, are far from powerless, despite our

rejection of the rule. An applicant for a zoning permit arguing

that there is an effective prohibition must still show that there

are no alternative sites which would solve the problem.

Importantly, if an existing carrier provides service, then by

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definition there is a tower used by that owner, and the tower may

offer the possibility of co-location. If co-location on such a

tower is not possible, there may be other solutions that the town

regards as more palatable than the applicant's proposed tower.

Finally, even if there were a significant coverage problem in terms

of a number of different carriers being unable to provide service

to a significant number of users, we think a town would be entitled

to consider whether a particular proposed tower would solve the

problem for a smaller or larger number of providers. Here, the

firm evidence was that a tower on Second Generation's property

would assist two of the carriers. Little evidence was submitted

about whether it would solve the purported problem for the other

four licensed carriers.

4. Effective Prohibition and Other Potential Solutions

Dispositively on the effective prohibition issue, the

record shows that Second Generation has not met its burden to show

that there are no other potential solutions to the purported

problem. Specifically, Second Generation failed to show that a

taller tower (for which a height variance would be needed) could

not be built in the Overlay Zone to remedy the alleged gap. Nor

did it show that no other feasible sites existed outside of the

Overlay Zone or that the ZBA would deny variances for such sites.

Second Generation's own experts acknowledged that its land was not

the only location where a tower could provide coverage in the

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purported gap and that its proposed tower was likely taller than

necessary to service the alleged gap. Second Generation also

failed to explore whether existing towers in nearby jurisdictions

(which enabled U.S. Cellular customers to obtain roaming service)

could provide other carriers with coverage in the purported gap.

Though Second Generation has not on this record

demonstrated that this individual denial of a permit constituted an

effective prohibition, it appears there may be a coverage problem

requiring a solution. Nothing in the Town's actions thus far shows

an unwillingness to acknowledge a problem or to permit the crafting

of a solution. The record suggests a range of possible solutions,

none yet determined to be infeasible, ranging from more co-location

on existing towers in nearby towns, to the construction of less

aesthetically disruptive towers in Pelham, to the placement of

towers along median strips. Those are the sorts of choices and

trade-offs which the Act permits towns to make in the first

instance. See Amherst, 173 F.3d at 15; Aegerter v. City of

Delafield, 174 F.3d 886, 891 (7th Cir. 1999). In this situation

the heavy artillery of federal preemption is simply unwarranted.

The judgment of the district court is affirmed. Costs

are awarded to Pelham.

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