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.
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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.
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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
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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
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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,
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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.
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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
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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
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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
-22-
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
-27-
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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