Omnipoint Holdings, Inc. v. City of Cranston

United States Court of Appeals
For the First Circuit

No. 08-2491

OMNIPOINT HOLDINGS, INC.,

Plaintiff, Appellee,

v.

CITY OF CRANSTON; THE ZONING BOARD OF REVIEW OF THE CITY OF
CRANSTON; JOY MONTANARO, Member, City of Cranston Zoning Board of
Review; EDWARD DIMUCCIO, Member, City of Cranston Zoning Board of
Review; CURTIS PONDER, Member, City of Cranston Zoning Board of
Review; FRANK CORSO III, Member, City of Cranston Zoning Board of
Review; and DONALD CURRAN, Member, City of Cranston Zoning Board
of Review,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,
Gajarsa* and Lipez, Circuit Judges.

Jeffrey S. Michaelson with whom Michaelson & Michaelson were
on brief for appellants.
William A. Worth with whom Thomas M. Elcock and Prince, Lobel,
Glovsky & Tye LLP were on brief for appellees.

November 3, 2009

*
Of the Federal Circuit, sitting by designation.
 LYNCH, Chief Judge. In this case a wireless carrier was

denied a variance and special use permit by the Cranston Zoning

Board of Review to build a wireless communications tower in

Cranston, Rhode Island. The carrier had so applied in order to

remedy a significant gap it found in coverage.

When the carrier sought federal court review of the

denial, the city and zoning board countered that the zoning board's

decision was not a "final action" because limited state court

review was available. The district court rejected the argument.

Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, 2007 WL

2050316, at *4-5 (D.R.I. July 12, 2007) (order denying motion to

dismiss) (City of Cranston I). After a two-day bench trial, the

court granted judgment for the plaintiff. Omnipoint Holdings, Inc.

v. City of Cranston, No. 06-531, slip op. at 8, (D.R.I. Oct. 23,

2008) (City of Cranston II). It held that the town's denial of the

permits constituted an effective prohibition of service in

violation of § 332(c)(7)(B)(i)(II) of the Telecommunications Act of

1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56 (codified as

amended in scattered sections of 47 U.S.C.). Id. at 2, 8.

We now affirm. On an issue of first impression in the

circuit courts, we hold that the zoning board's decision was a

"final action" for purposes of § 332(c)(7)(B)(v) of the TCA. We

also reject the defendants' claims that the court erred in finding

that the zoning board's decision "ha[d] the effect of prohibiting

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the provision of personal wireless services." 47 U.S.C.

§ 332(c)(7)(B)(i)(II).

I.

We recite the facts in the trial record in the light most

favorable to the verdict. Marcano Rivera v. Turabo Medical Center

P'ship, 415 F.3d 162, 165 (1st Cir. 2005).

T-Mobile USA, Inc. ("T-Mobile") has a Federal

Communications Commission ("FCC") license to operate a digital

personal communications service ("PCS") wireless network at 1900

megahertz in Rhode Island under which Omnipoint, T-Mobile's wholly

owned subsidiary, operates. Omnipoint provides wireless service to

customers through a network of antennae mounted on towers or other

structures, often called wireless facilities, that broadcast

signals between towers and to customers' wireless phones and

devices. When Omnipoint realizes that an area within its network

lacks sufficient coverage for customers to make and maintain calls

reliably, it tries to remedy the coverage gap by building a new

facility.

The key to coverage is having a strong-enough signal

level for customers to maintain contact with the network so they

can make and maintain calls. Signal level, the strength of the

radio signal customers' devices receive, is measured in negative

-3-
decibels per milliwatt ("dBm").1 The nature of Omnipoint's digital

PCS network makes keeping signal levels strong more difficult than

if it had provided analog-based cellular service. PCS towers

broadcast lower signals at a much higher frequency, so those

signals cover a smaller area, usually about 1.5 miles.

Consequently, PCS providers must build a network of towers

relatively near each other, creating an overlapping grid of signals

from the towers resembling a honeycomb. For example, Omnipoint has

at least sixteen towers within four miles of the proposed tower at

issue in this case.

Because its customers value reliable network coverage,

Omnipoint has established a national goal of 95 percent reliability

for the network, meaning that customers should be able to make and

maintain 95 percent of their calls. To meet this goal, Omnipoint

has established -84 dBm as its minimum signal strength for in-

vehicle coverage nationwide. Federal law does not require any

specific signal level; Omnipoint has set high standards to satisfy

its customers.

Omnipoint first determined that signal levels around

Phenix Avenue in Cranston fell below -84 dBm through a propagation

study, a computer program that predicts signal levels. Phenix

Avenue is heavily traveled because it is a main road connecting

1
Because it is measured in negative figures, the larger
the dBm number, the weaker the signal. Thus a signal strength of
-100 dbm is weaker than a signal of -80 dbm.

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Cranston to the nearby towns of Warwick and Coventry. A consulting

engineer for Omnipoint, Elijah Luutu, determined that Omnipoint

likely needed a new facility in the area to service this traffic.

Later he conducted a drive test, during which he drove a wireless

device around the area and mapped the signals it was receiving,

which confirmed this conclusion. Based on the propagation study,

Luutu designed a "search ring" for Omnipoint staff to find

potential locations for the new facility around November 18, 2003.

Factoring in topography and the height of the area's tree canopy,

Luutu calculated that Omnipoint needed to build or find a ninety-

foot pole for the new facility.

Omnipoint employees examined the search ring for suitable

sites. They looked, in order of preference, for existing towers

belonging to other wireless companies, existing structures to mount

a facility on, and raw land to construct a facility on. They also

considered the ease of building a new facility, the radio frequency

needs of the area, and zoning issues when evaluating candidates.

An employee searched the area and FCC databases and did not find

suitable existing towers, so that option was excluded. He

identified four potential sites: the Cranston Fire Department

Museum, two different sites at the Cranston Country Club, and the

Solid Rock Church. No other structures in the search ring were

tall enough to meet Omnipoint's radio frequency requirements.

Luutu rejected the museum site because it would provide largely

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redundant coverage with another tower without covering most of the

gap.

With the exclusion of the museum site, Omnipoint came

down to three options: an extant utility pole or raw land (to put

up a pole) on the country club's property, or land on the property

of the Solid Rock Church in Cranston. Omnipoint first negotiated

with the country club. Omnipoint needed an easement to install

power lines to the proposed facility on the country club's utility

pole, so it offered the country club first its standard rate of

$1,500 and then its enhanced lease rate of $2,000 per month. The

club rejected both offers on the ground that installing power lines

could damage its golf course's fairways. Omnipoint then offered

the country club both the $1,500 and $2,000 lease rates to build a

facility on the club's raw land. When the club's three owners

could not agree whether to pay the lease proceeds to themselves or

to the club, Omnipoint offered a one-time payment of $25,000 (in

addition to the monthly rate) to whichever owner would agree to the

other side's position. The owners refused to compromise, however,

and Omnipoint abandoned negotiations with the country club.2

Omnipoint then turned to the property of the Solid Rock

Church and offered $1,500 per month to lease the raw land to

construct a ninety-foot tower disguised as a flagpole. The church

2
The record suggests Omnipoint negotiated with the country
club for about five months in total.

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accepted. It is this site which is the subject of this

controversy. The pole was not in conformance with Cranston's

zoning ordinances because, given its height, it was too close to

the property's southern border. Omnipoint and Solid Rock Church

jointly applied for a variance and special use permit on September

21, 2005, almost two years after Omnipoint began searching for a

site.

On November 9, 2005, the City of Cranston Planning

Commission, which may offer nonbinding recommendations to the

zoning board, held a public hearing and issued a written

recommendation that the board deny Omnipoint's application because

Omnipoint did not "demonstrate[] that existing nearby facilities

c[ould not] accommodate the service need." The Cranston Zoning

Board of Review then conducted two public hearings on April 12,

2006, and September 13, 2006. The board issued a written decision

on November 7, 2006, denying Omnipoint's application without then

giving a statement of the reasons for its decision.

II.

Omnipoint sued the city, the zoning board, and all five

members of the zoning board (collectively "Cranston") in federal

district court on December 6, 2006, under the TCA. It claimed that

Cranston had violated the TCA because it had effectively prohibited

the provision of personal wireless services by refusing to grant

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Omnipoint's application.3 Omnipoint sought an injunction requiring

the board to grant Omnipoint's request for a variance and special

use permit and an injunction and order of mandamus ordering the

city of Cranston to issue a building permit for constructing the

tower.

Cranston moved to dismiss Omnipoint's complaint, arguing

that the district court lacked what it referred to as subject

matter jurisdiction. Because Rhode Island law permits parties to

petition the state superior court for limited review of a zoning

board's decision, Cranston contended, the zoning board's decision

was not a "final action" creating federal jurisdiction under

§ 332(c)(7)(B)(v). The district court rejected the argument and

held the board decision was a "final action" and that the TCA

permitted Omnipoint to bypass Rhode Island state court review.

City of Cranston I, 2007 WL 2050316, at *4-5.

The district court held a two-day bench trial on June 27

and July 9, 2008, and heard five witnesses. Gerald Marquis, a real

estate manager for Omnipoint, testified that Omnipoint held an FCC

license to operate at 1900 megahertz and explained that Omnipoint

sets a 95 percent nationwide reliability standard to satisfy

3
Omnipoint also claimed the board failed to support its
decision with substantial evidence because the board gave no
reasons for denying Omnipoint's application. See 47 U.S.C.
§ 332(c)(7)(B)(iii). During litigation Cranston provided Omnipoint
with a comprehensive explanation for the denial that the board kept
on file. In response, Omnipoint has dropped its substantial
evidence claim.

-8-
customers. Marquis also testified to Omnipoint's process for

identifying and remedying gaps in coverage. Two Omnipoint

employees described their efforts to find a location for the new

facility around Phenix Avenue.

Elijah Luutu, who has designed wireless networks as a

radio frequency engineer for twelve years, testified as an expert

witness for Omnipoint. Luutu detailed how Omnipoint calculated -84

dBm as its minimum signal level in vehicles. It began with a

receiver sensitivity--that is, the minimum decibel levels that

mobile devices and base stations need for people to understand

someone on the other line--of -102 dBm based on industry standards.

Omnipoint added attenuation from obstructions that could block a

signal, such as bodies, trees, and buildings, which produced the

-84 dBm figure. According to Luutu, the -84 dBm standard ensured

Omnipoint met its goal of 95 percent reliability.

Luutu also explained how he created a search ring and

evaluated candidates for a facility around Phenix Avenue based on

Omnipoint's specifications. He acknowledged he could have studied

building multiple, smaller sites to cover the gap, but Luutu only

considered building a single tower because Omnipoint instructed him

to. Although no proposed site would fully remedy the coverage gap

around Phenix Avenue, Luutu, accepting that the country club was

unavailable, concluded a tower on the property of the Solid Rock

Church was Omnipoint's best alternative.

-9-
 Cranston presented only one witness, David Maxson, whom

it presented as a purported expert. Maxson had never built a

wireless network and most of his training and experience was in

radio broadcasting. He had, however, worked for a wireless company

and had advised municipalities on regulating wireless facilities.

Maxson's testimony went to two points: he contended there was no

gap and, if there were, Omnipoint had alternative solutions. These

conclusions were generally consistent with an earlier affidavit he

had filed. But he admitted that when he assembled that affidavit,

he had never visited the area around Solid Rock Church, had

performed no tests there, and had made no computer studies to

support his opinions in the affidavit.

Maxson attacked how Omnipoint established its standard

for reliable network coverage. He contended that mobile devices

receive reliable signals below -84 dBm, but Omnipoint used that

overly conservative figure primarily because its calculations were

based on an outdated figure for receiver sensitivity and because it

double-counted signal loss from a user's body. Maxson opined that

Omnipoint could achieve reliable coverage using a lower signal

standard. But he relied only on tests he had performed on

Omnipoint networks in other areas. And Maxson never proposed an

alternative figure for reliable coverage.

Maxson next said there were several alternatives to

building a ninety-foot tower on church property, including placing

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antennae on other utility poles around Phenix Avenue or another

carrier's tower located in a West Warwick neighborhood Omnipoint

employees had never heard of. He primarily opined that Omnipont

should have considered building more than one facility to cover the

Phenix Avenue gap. Maxson proposed three multisite solutions:

building one smaller tower and a series of smaller facilities,

called microcells, to supplement coverage; building a series of

microcells; and building a distributed antenna system ("DAS"), in

which fiberoptic cables connect a series of antennae mounted on

utility poles.

Maxson gave vague details on the feasibility of these

proposals, however. He did not reconcile his proposals with

technology Omnipoint currently uses. On cross examination he

acknowledged the DAS mode is not wireless--it requires cables--and

no DAS systems existed in the Phenix Avenue area. He also did not

explain how the microcell solutions would work with Omnipoint's

current grid of towers or with the lower PCS signal. And Maxson

conceded that he did not investigate whether other sites he

suggested were available to Omnipoint or could even support the

infrastructure he was envisioning. He identified only general

locations to build facilities, such as "near the golf course," on

"any of a number of those transmission line poles," and "on the

other side of the ridge from Solid Rock Church." And Maxson

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performed no testing to show whether these alternative designs

actually would cover the gap around Phenix Avenue.

On October 23, 2008, the district court entered judgment

for Omnipoint. City of Cranston II, No. 06-531, slip op. at 8.

The court explained that Omnipoint had met its burden to show (1)

that Cranston's zoning decision prevented Omnipoint from closing a

"significant gap" in coverage and (2) that further reasonable

efforts to find an alternative solution would be fruitless. Id. at

2, 8. The court rejected Maxson's testimony: "Taking into account

Maxon's [sic] dearth of experience in designing wireless networks

and his failure to conduct any testing before rendering his

opinions," it found that Maxson's conclusions were "completely

unreliable and unpersuasive." Id. at 7. The court then made two

findings of fact:

1. There is a significant gap in
Plaintiff's coverage area along Phenix
Avenue in Cranston as mapped and tested
by Luutu.

2. The only feasible site available to
Plaintiff is the site at the Solid Rock
Church where the construction of a 90
foot monopole will provide coverage in
the gap area.

Id. Cranston timely appealed to this court, and we affirm.

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 III.

A. The Zoning Board Decision Was a "Final Action" under the
TCA

Cranston makes a novel argument that the zoning board's

decision is not a "final action" by a "State or local government"

under § 332(c)(7)(B)(v) of the TCA.4 We review the district

court's decision de novo because it is an issue of law, Daggett v.

Comm'n on Governmental Ethics and Election Practices, 172 F.3d 104,

109 (1st Cir. 1999), and we affirm.

Section 332(c)(7) of the TCA, entitled "Preservation of

local zoning authority," allows state and local governments to

apply their zoning regulations to the construction of wireless

facilities, subject to five substantive and procedural limitations.

4
Cranston frames this as a question of whether the federal
court had "subject matter jurisdiction," which is a questionable
articulation. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510
(2006) ("This Court, no less than other courts, has sometimes been
profligate in its use of the term [jurisdiction]."); Eberhart v.
United States, 546 U.S. 12, 15-16 (2005) (per curiam); Scarborough
v. Principi, 541 U.S. 401, 413-14 (2004); Kontrick v. Ryan, 540
U.S. 443, 454-55 (2004)("Clarity would be facilitated if courts and
litigants used the label 'jurisdictional" not for claim-processing
rules, but only for prescriptions delineating the classes of cases
(subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court's adjudicatory authority.");
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90-91
(1998).
The relevant section of the TCA, 47 U.S.C. § 332(c)(7)(B)(v),
does not clearly state that the final action requirement is
jurisdictional. Under Arbaugh, this is a highly relevant
consideration. 546 U.S. at 514-16; accord Chao v. Hotel Oasis,
Inc., 493 F.3d 26, 33 (1st Cir. 2007). Given our holding, however,
we need not decide whether the issue is one of jurisdiction.

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47 U.S.C. § 332(c)(7); see also Nat'l Tower, LLC v. Plainville

Zoning Bd. of Appeals, 297 F.3d 14, 19-20 & n.3 (1st Cir. 2002)

(listing these limitations). It creates a federal cause of action:

"Any person adversely affected by any final action or failure to

act by a State or local government or any instrumentality thereof

that is inconsistent with" those five limitations may sue in state

or federal court within thirty days to enforce the TCA's

provisions. 47 U.S.C. § 332(c)(7)(B)(v).

Cranston implicitly concedes that zoning board decisions

often would be final actions under the TCA. But it argues that a

Rhode Island law permitting state court review of zoning board

decisions creates an exception to that rule precisely because the

statute limits the scope of court review and does not provide full

court review of zoning board decisions.5 Cranston argues that such

limited review makes state court proceedings part of a

"comprehensive statutory scheme" for state zoning decisions that is

not final until after state court review finishes. Omnipoint

5
Rhode Island has a separate statute governing state court
review of zoning decisions. It provides, "An aggrieved party may
appeal a decision of the zoning board of review to the superior
court . . . within twenty (20) days after the decision has been
recorded and posted." R.I. Gen. Laws § 45-24-69(a). Under Rhode
Island law, a state court may reverse the zoning board only on six
limited grounds and cannot "substitute its judgment for that of the
zoning board of review as to the weight of the evidence on
questions of fact." Id. § 45-24-69(d). Notably, this statute does
not even mandate state court review. See id. § 45-24-69(a)
(stating that parties "may" seek state court review of zoning board
decisions).

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rejoins that it did not need to sue in state court because the

zoning board's decision was a final action by an instrumentality of

a local government.

The TCA does not define "final action." The parties do

not dispute the Cranston Zoning Board of Review is a "State or

local government" or "any instrumentality thereof." See Black's

Law Dictionary 764 (9th ed. 2009) (defining local government as

"[t]he government of a particular locality, such as a city"); id.

at 870 (defining "instrumentality" as "[a] means or agency through

which a function of another entity is accomplished, such as a

governing body").

When interpreting terms within the TCA, we consider its

plain text and "design, structure, and purpose." Cablevision of

Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d 88, 101 (1st Cir.

1999) (quoting O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.

1996)) (internal quotation marks omitted). The Cranston Zoning

Board of Review's decision falls within the usual meaning of final

action set forth in the language of 47 U.S.C. § 332(c)(7)(B)(v).

The terms "final" and "final action" have special meaning in the

law, and we assume Congress knew the "content of background law"

when legislating. In re Rivera Torres, 432 F.3d 20, 25 (1st Cir.

2005). Generally a decision is final if it is "concluded;" that

is, if it does not "requir[e] any further judicial action by the

court that rendered the judgment to determine the matter litigated"

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and the decision can be appealed. Black's Law Dictionary 705 (9th

ed. 2009).

The well-settled rule in administrative law is that a

"final agency action" is one that "mark[s] the consummation of the

agency's decisionmaking process." Whitman v. Am. Trucking Ass'ns,

531 U.S. 457, 478 (2001) (emphasis added) (quoting Bennett v.

Spear, 520 U.S. 154, 177-78 (1997)) (internal quotation marks

omitted). It means a "final determination" in a case by an

administrative agency; that is, whether the agency "rendered its

last word on the matter." Harrison v. PPG Indus., Inc., 446 U.S.

578, 586 (1980) (interpreting what is a "final action" by the

Environmental Protection Agency under the Clean Air Act); accord

Whitman, 531 U.S. at 478 (same). Only after an agency's final

action may courts review the agency's decision. 5 U.S.C. § 704;

Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S.

644, 659 (2007).

A "final action . . . by a . . . local government or any

instrumentality thereof" must be one that marks the consummation of

the instrumentality's decisionmaking process. In this case there

is no dispute that the zoning board is a discrete "instrumentality"

of Cranston, separate and distinct from the Rhode Island Superior

Court. The parties agree Cranston's zoning board had concluded its

decisionmaking process before that instrumentality and could take

no further action. The zoning board's decision was final.

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 Sprint Spectrum L.P. v. City of Carmel, 361 F.3d 998 (7th

Cir. 2007), on which Cranston relies, undercuts Cranston's argument

and supports our analysis. The court held a carrier's claim was

not ripe because the carrier sued in federal court when it still

had further recourse before the local zoning board. Id. at 1004-

05; accord Nextel Commc'ns of Mid-Atl., Inc. v. City of Margate,

305 F.3d 188, 193-94 (3d Cir. 2002). Indeed the Sprint Spectrum

court observed that the carrier would not need to "exhaust[] all

state judicial remedies before bringing suit in federal court."

Id. at 1001 n.2.

Cranston's reading would frustrate the TCA's overall

statutory scheme and purpose. The Act stresses the need for

speedily deploying telecommunications and seeks to get prompt

resolution of disputes under the Act. Congress enacted the TCA "to

promote competition and reduce regulation in order to secure lower

prices and higher quality services for American telecommunications

consumers and encourage the rapid deployment of new

telecommunications technologies." 110 Stat. at 56 (emphasis

added). Under § 332(c)(7)(B)(v), parties may sue within thirty

days of a final action, and courts must "hear and decide such

action[s] on an expedited basis." To hold Omnipoint nevertheless

needed to sue in state court would undermine the TCA's goals by

imposing a new regulatory obstacle to providing consumers with

wireless service.

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 To the extent § 332(c)(7)(B)(v), read in light of its

language, context, and purpose, could be thought to be ambiguous,

the legislative history confirms that a zoning board's decision is

a final action and Omnipoint did not need to seek judicial review

under state law of that board decision. The House Conference

Report defined a final action as a "final administrative action at

the State or local government level so that a party can commence

action . . . rather than waiting for the exhaustion of any

independent state court remedy otherwise required."

Telecommunications Act of 1996, H.R. Rep. No. 104-458, at 209

(1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 124, 223.

B. The District Court Did Not Err by Granting Judgment to
Omnipoint after Trial

The district court found that Cranston had violated the

TCA's provision that local zoning authorities may not "prohibit or

have the effect of prohibiting the provision of personal wireless

services." 47 U.S.C. § 332(c)(7)(B)(i)(II). In effective-

prohibition cases we review whether the district court applied the

proper legal standards de novo. Nat'l Tower, 297 F.3d at 22. The

district court correctly cited the legal standards in this circuit.

But whether, under the circumstances, an effective prohibition has

occurred is a factual issue; we review how the district court

resolved it for clear error. Id.; accord Omnipoint Commc'ns

Enters., L.P. v. Zoning Hearing Bd. of Easton Twp., 331 F.3d 386,

392 (3d Cir. 2003) (on panel rehearing).

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 Beyond the statute's language, the TCA provides no

guidance on what constitutes an effective prohibition, so courts,

including this one, have added judicial gloss. E.g., T-Mobile USA

v. City of Anacortes, 572 F.3d 987, 995-98 (9th Cir. 2009);

VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818,

833, 834-35 (7th Cir. 2003); Second Generation Props., LP v. Town

of Pelham, 313 F.3d 620, 631-35 (1st Cir. 2002); Sprint Spectrum

L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999); APT Pittsburgh

Ltd. P'ship v. Penn Twp. Butler County, 196 F.3d 469, 480 (3d Cir.

1999); Town of Amherst v. Omnipoint Comm'cns Enters., Inc., 173

F.3d 9, 14-15 (1st Cir. 1999); see also Willoth, 176 F.3d at 641

(noting, when interpreting this provision, that it "would be [a]

gross understatement to say that the Telecommunications Act of 1996

is not a model of clarity." (quoting AT & T Corp. v. Iowa Utils.

Bd., 525 U.S. 366, 397 (1999)) (alteration in original)).

The carrier has the burden to show an effective

prohibition has occurred. City of Anacortes, 572 F.3d at 995;

USCOC of Greater Iowa, Inc. v. Zoning Bd. of Adjustment, 465 F.3d

817, 825 (8th Cir. 2006); St. Croix County, 342 F.3d at 833, 835;

USCOC of Va. RSA #3 v. Montgomery County Bd. of Supervisors, 343

F.3d 262, 268 (4th Cir. 2003); Second Generation Props., 313 F.3d

at 629; Easton Twp., 331 F.3d at 397. When a carrier claims an

individual denial is an effective prohibition, virtually all

circuits require courts to (1) find a "significant gap" in coverage

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exists in an area and (2) consider whether alternatives to the

carrier's proposed solution to that gap mean that there is no

effective prohibition.6 MetroPCS v. City and County of San

Francisco, 400 F.3d 715, 731 (9th Cir. 2005); see, e.g., Second

Generation Props., 313 F.3d at 631, 635. Circuits disagree,

however, in the language they use to measure when a significant gap

exists and about the inquiry into alternative solutions.

Courts do agree that both of these determinations are

fact-bound. Second Generation Props., 313 F.3d at 631 ("The

question whether an individual denial is an effective prohibition

is largely fact-driven."); accord 360 Degrees Commc'ns, 211 F.3d at

87 (describing these cases as requiring "essentially a fact-bound

inquiry"); see also Penn Twp., 196 F.3d at 480 (explaining courts

may consider, "e.g., [if] the provider has considered less

sensitive sites, alternative system designs, alternative tower

designs, placement of antennae on existing structures, etc.");

MetroPCS, 400 F.3d at 733 (calling the significant-gap test an

"extremely fact-specific" inquiry that "def[ies] any bright-line

legal rule").

6
The Fourth Circuit has rejected any standard beyond the
language in the statute. 360 Degrees Commc'ns Co. of
Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 87 (2000). But
it has applied a version of this test in at least one case. See
id. at 87-88 (assuming a "significant gap[]" existed and holding
that the carrier failed to show no alternatives were feasible).

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 Courts ultimately decide these cases based, not on

bright-line legal standards, but on the facts in the record. See,

e.g., City of Anacortes, 572 F.3d at 998-99; Second Generation

Props., 313 F.3d at 635; USCOC of Va. RSA #3, 343 F.3d at 268-69;

St. Croix County, 342 F.3d at 836; Willoth, 176 F.3d at 643-44;

Town of Amherst, 173 F.3d at 14.

1. Existence of a Significant Gap in Coverage

Through the significant-gap analysis courts "determine

whether a coverage problem exists at all." Second Generation

Props., 313 F.3d at 631. In this circuit we consider whether a

significant gap in coverage exists within the individual carrier's

network. Metheny v. Becker, 352 F.3d 458, 461 & n.2 (1st Cir.

2003); Second Generation Props., 313 F.3d at 632-35. We have

rejected the Third Circuit's rule that considers not the individual

carrier's network but whether any carrier provides service to an

area. Cf. Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 265 (3d

Cir. 2002). In our view, the Third Circuit rule prevents customers

in an area from having a choice of reliable carriers and thus

undermines the TCA's goal to improve wireless service for customers

through industry competition. Second Generation Props., 313 F.3d

at 631, 633. The Ninth Circuit has adopted our approach.

MetroPCS, 400 F.3d at 731-33.

When relevant, courts assessing whether a coverage gap is

significant should consider, inter alia, the physical size of the

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gap, the area in which there is a gap, the number of users the gap

affects, and whether all of the carrier's users in that area are

similarly affected by the gaps. See, e.g., Second Generation

Props., 313 F.3d at 631; see also MetroPCS, 400 F.3d at 733 & n.10;

360 Degrees Commc'ns, 211 F.3d at 87; Cellular Tel. Co. v. Zoning

Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 n.2

(3d Cir. 1999); Willoth, 176 F.3d at 643-44. Also relevant could

be data about percentages of unsuccessful calls or inadequate

service during calls in the gap area. Here, Omnipoint had shown

its need for coverage around Phenix Avenue is significant. It

established Phenix Avenue was a heavily traveled and important

route that connects Cranston to its neighbors.

Cranston argues that the district court measured the

quality of coverage around Phenix Avenue with an improper--and

unfair--yardstick because the court accepted Omnipoint's -84 dBm

standard for reliable service, which Omnipoint had set to satisfy

customers. Cranston asks us to rule that a trial judge errs in

considering the provider's defined level of acceptable service on

the question of the existence of a significant gap. We reject such

bright-line rules. See MetroPCS, 400 F.3d at 733. In this case,

the district court's finding that there was a significant gap in

coverage was quite reasonable, and not clear error, on the

evidence.

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 The court did not err by accepting the testimony of

Omnipoint's expert, Elijah Luutu, about a coverage gap around

Phenix Avenue in Cranston, which we described earlier. At trial

and on appeal Cranston has argued that Omnipoint did not meet its

burden because Luutu's testimony was based on the premise that

signal levels below -84 dBm constitute a gap in coverage. But the

record contains no evidence that undercuts that premise, and the

premise was reasonable on its face.

Contrary to Cranston's argument, the district court did

not adopt -84 dBm as a legal standard for whether a coverage gap

exists, and neither do we. The only evidence Cranston presented to

contest Luutu's testimony were Maxson's opinions that Omnipoint's

methodology for calculating and testing coverage gaps was flawed

and its standard for coverage was wrong. But the district court

noted that, unlike Luutu, Maxson lacked experience designing

wireless systems and his opinions were "not based on any actual

measurements or tests he conducted at the site." City of Cranston

II, No. 06-531, slip op. at 7. It thus found Maxson's "conclusions

completely unreliable and unpersuasive." Id.

As the factfinder, it was the district court's

responsibility to determine how much weight to give each expert's

testimony. Bruce v. Weekly World News, Inc., 310 F.3d 25, 30 (1st

Cir. 2002) ("[T]he district court, qua factfinder, was entitled to

make the crucial credibility determination as between the competing

-23-
expert witnesses."); cf. Seahorse Marine Supplies, Inc. v. P.R. Sun

Oil Co., 295 F.3d 68, 81 (1st Cir. 2002) ("The [expert's] ultimate

credibility determination and the testimony's accorded weight are

in the jury's province."). The district court chose to discount

Maxson's testimony based on the quality of his experience and

supporting evidence, and we will not disturb its assessment.7 Cf.

Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 9

(1st Cir. 2001) ("When the factual underpinning of an expert

opinion is weak, it is a matter affecting the weight and

credibility of the testimony--a question to be resolved by the

jury." (quoting Newell P.R., Ltd. v. Rubbermaid Inc., 20 F.3d 15,

21 (1st Cir. 1994) (internal quotation marks omitted)).

2. Alternative Solutions

Once a court has found a coverage gap exists, it must

determine whether local authorities have prevented a carrier from

closing that gap so as to amount to an effective prohibition. See

Second Generation Props., 313 F.3d at 635 (noting even if a gap is

found to exist carriers "must still show that there are no

alternative sites which would solve the problem"). Two

articulations have emerged in the circuits for the second prong of

effective-prohibition claims. This court and the Seventh Circuit

7
Contrary to Cranston's argument, the district court did
not shift the burden of proof to it. The court merely assessed
Maxson's persuasiveness as an expert based on the quality of
support he provided for his opinions.

-24-
have used the language of the "only feasible plan." St. Croix, 342

F.3d 835; Second Generation Props., 313 F.3d at 630; Town of

Amherst, 173 F.3d at 14. The Second, Third, and Ninth Circuits

have articulated the question as whether the proposed solution is

the least-intrusive means. City of Anacortes, 572 F.3d at 995;

Nextel W. Corp., 282 F.3d at 266; Willoth, 176 F.3d at 643. The

Fourth Circuit has held courts should simply apply the language of

§ 332(c)(7)(B)(i)(II) to the facts of a case. 360 Degrees

Commc'ns, 211 F.3d at 87. Nevertheless, in 360 Degrees

Communications, the court quoted our standard from Town of Amherst

to reject one carrier's claim. Id. at 88.

It is unclear how much these different articulations of

the tests truly differ. This court's opinion in Town of Amherst

first used the language of "only feasible plan." In that case we

held that a carrier could claim a single zoning decision

effectively prohibited it from providing wireless service. Town of

Amherst, 173 F.3d at 14. But the carrier had the "heavy" burden

"to show from the language and circumstances not just that this

application has been rejected but that further reasonable efforts

[to find another solution] are so likely to be fruitless that it is

a waste of time even to try." Id. To prevail, the carrier could

not insist on one, ideal way to provide service; the TCA required

it to consider alternatives more palatable to local zoning

authorities. Id. at 14-15. "Were [its] existing proposal the only

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feasible plan," we noted, "then prohibiting its plan might amount

to prohibiting personal wireless service."8 Id.

The underlying question is whether, under the facts of a

case, a zoning decision effectively prohibited providing wireless

service. See 47 U.S.C. § 332(c)(7)(B)(i)(II); Second Generation

Props., 313 F.3d at 630 ("[T]here can be no general rule

classifying whether there is an effective prohibition. It is a

case-by-case determination."); see also 360 Degrees Commc'ns, 211

F.3d at 87 (refusing to adopt one analytic approach for such claims

because doing so would "unduly limit[] what is essentially a fact-

bound inquiry"). When evaluating such claims "we are in the realm

of trade-offs" between the carrier's desire to efficiently provide

8
Courts since have built on this decision. Citing Town of
Amherst, the Second Circuit held that local authorities cannot
reject a carrier's plan that offers "the least intrusive means for
closing a significant gap." Willoth, 176 F.3d at 643. The court
listed "numerous ways [carriers could] limit the aesthetic impact
of a cell site" without sacrificing coverage. Id. The Third and
Ninth Circuits followed Willoth, holding carriers must prove their
solution is "the least intrusive on the values that the denial
sought to serve." Penn Twp., 196 F.3d at 480; MetroPCS, 400 F.3d
at 734-35 (internal quotation marks omitted). The provider must
prove it made "a good faith effort" to "identify and evaluate less
intrusive alternatives." Penn Twp., 196 F.3d at 480. The Seventh
Circuit rejected the least-intrusive-means test, opining it
undermined local autonomy and strayed from the statutory text, and
it instead adopted our feasible-alternative analysis. St. Croix
County, 342 F.3d at 834-35 & n.8 (citing 360 Degrees Commc'ns, 211
F.3d at 87). The Seventh Circuit then applied the Town of Amherst
test to hold there was no effective prohibition when a carrier
produced no evidence it considered alternatives. Id. at 834-36.
The Ninth Circuit, however, adopted the least-intrusive-means test
because it thought the "only feasible plan" test was "too
exacting." MetroPCS, 400 F.3d at 734.

-26-
quality service to customers and local governments' primary

authority to regulate land use. Town of Amherst, 173 F.3d at 15.

A carrier "may think . . . its solution is best," but, "subject to

an outer limit, such choices are just what Congress reserved to the

town" in § 332(c)(7). Id.

The effective prohibition clause does not stand alone; it

is also part of the TCA's larger goal of encouraging competition to

provide consumers with cheaper, higher-quality wireless technology.

See id. at 13. As cell phone use increases, carriers need to build

more facilities, especially in populated areas, to continue

providing reliable coverage, and local regulations can present

serious obstacles.9 See Sw. Bell Mobile Sys., Inc. v. Todd, 244

F.3d 51, 57 (1st Cir. 2001) ("[A]s Congress found, 'siting and

zoning decisions by non-federal units of government [] have created

an inconsistent and, at times, conflicting patchwork of

requirements which will inhibit the deployment of [wireless

9
Local authorities face what commentators call the "not in
my backyard" ("NIMBY") problem: property owners resist new
facilities in populated areas because they find wireless facilities
unsightly and worry facilities lower property values; yet as cell
phone consumers these same people want quality service where they
are most. E.g., D. Hughes, When NIMBYs Attack: The Heights to
Which Communities Will Climb to Prevent the Siting of Wireless
Towers, 23 J. Corp. L. 469, 482-83 (1998); S. Eagle, Wireless
Telecommunications, Infrastructure Security, and the NIMBY Problem,
54 Cath. U. L. Rev. 445, 455-57 (2005). Residents often pressure
town authorities to tighten and strictly enforce zoning
restrictions on wireless facilities, creating numerous pockets of
resistance for wireless carriers. Hughes, supra, at 470-71, 482-
84.

-27-
technology] . . . .'" (quoting Omnipoint Corp. v. Zoning Hearing

Bd. of Pine Grove Twp., 181 F.3d 403, 407 (3d Cir. 1999) (second

alteration in original))); J. Berger, Efficient Wireless Tower

Siting: An Alternative to Section 332(c)(7) of the

Telecommunications Act of 1996, 23 Temp. Envtl. L. & Tech. J. 83,

88 (2004). The themes in the TCA of promoting competition in the

wireless communications market and of relatively speedily

effectuating the purpose of the Act, including the elimination of

significant gaps, underlie the determination of feasibility and

impose their own constraints. Just as carriers must present

evidence of their efforts to locate alternative sites, once they

have done so there are limits on town zoning boards' ability to

insist that carriers keep searching regardless of prior efforts to

find locations or costs and resources spent.

Any feasibility analysis balances these competing

interests. Nat'l Tower, 297 F.3d at 20. A carrier cannot win an

effective-prohibition claim merely because local authorities have

rejected the carrier's preferred solution. Second Generation

Props., 313 F.3d at 635; Town of Amherst, 173 F.3d at 14-15; accord

St. Croix County, 342 F.3d at 834-35. On the other hand, if local

authorities reject a proposal that is "the only feasible plan,"

that denial could "amount to prohibiting personal wireless

service." Town of Amherst, 173 F.3d at 14. The burden is on the

carrier to prove it "investigated thoroughly the possibility of

-28-
other viable alternatives" before concluding no other feasible plan

was available. St. Croix County, 342 F.3d at 834-35.

When we have held the carrier has not met its burden, the

evidence has been essentially undisputed that the carrier had other

alternatives. In Town of Amherst, the carrier "did not present

serious alternatives to the town" other than the most efficient

solution, a network of four 190-foot towers, one located in a

historic district. 173 F.3d at 11, 15. The town, although willing

to allow wireless facilities, opposed the towers' height and some

locations. Id. at 14. We held the carrier did not show it was

entitled to summary judgment because it "practically admitted that

somewhat lower towers were technically feasible" and it was unclear

"that locating a tower within the historic district was technically

essential." Id. at 15. Similarly, in Second Generation

Properties, the carrier presented no explanation why its proposal

was the only feasible site. 313 F.3d at 635. Indeed, the

carrier's "own experts acknowledged that its land was not the only

location where a tower could provide coverage in the alleged gap."

Id. We noted the TCA gives local authorities an opportunity to

consider any feasible alternatives before courts launch "the heavy

artillery of federal preemption." Id. The Seventh Circuit, in St.

Croix, also found a carrier had not met its burden because it

presented no evidence it investigated alternative solutions other

than conclusory statements. 342 F.3d at 835-36.

-29-
 Whether the carrier proves an effective prohibition has

occurred is a factual question for the trial court to resolve. See

Second Generation Props., 313 F.3d at 631 (explaining effective-

prohibition claims are "largely fact-driven"). As with most such

questions, the district court may consider a number of facts

relevant to the conclusion it must reach. What facts are relevant

may vary with the case. It is clear that the technical feasibility

of the proposed solution or alternative solutions is important.

See Town of Amherst, 173 F.3d at 15. Town of Amherst does not say

that technical feasibility is the only criterion, nor would we

adopt such a rule. The fact that a carrier's proposed solution to

the gap is technologically optimal does not, under Town of Amherst,

end the inquiry. Nor does the inquiry end with the solution

preferred by town officials other than the zoning board.

Town of Amherst discussed, inter alia, the "overall cost"

to the carrier, whether the solution was technically efficient,

whether other technically adequate solutions were in evidence,

whether the town could prefer other solutions on aesthetic grounds,

and whether local authorities were willing to cooperate with

carriers. See id. at 14-17; see also Second Generation Props., 313

F.3d at 635 ("Nothing in the Town's actions thus far shows an

unwillingness to acknowledge a problem or permit the crafting of a

solution."). Ultimately the question is a practical inquiry into

feasible, available alternatives. See, e.g., City of Anacortes,

-30-
572 F.3d at 997-98 (considering the availability of proposed

alternatives).

In Town of Amherst the carrier's rigid insistence on its

optimal plan proved fatal. By contrast, in this case, Omnipoint

presented evidence its final plan, which was plainly not its

optimal plan, was the only feasible one. In light of evidence of

Omnipoint's efforts to "investigate[] thoroughly the possibility of

other viable alternatives," St. Croix County, 342 F.3d at 834-35,

the district court did not clearly err in finding that constructing

a new tower at the Solid Rock Church site was the only feasible way

to close the Phenix Avenue coverage gap.

The evidence described earlier showed that Omnipoint had

in fact systematically searched for solutions to the gap problem

using technologically reliable criteria and methodologies.

Omnipoint considered different types of solutions: adding to

existing wireless towers; adding to existing structures of the

needed height, including utility poles; and new construction of

facilities on unoccupied land. Further, Omnipoint showed it had

made financial offers according to its usual rates, increased its

rates, and then offered an extraordinary bonus in an effort to

reach a contract with the country club but was unsuccessful. After

Luutu designed the search ring, it took Omnipoint two years to work

through the various options, reach an agreement with the church,

-31-
and apply for a variance. There was no meaningful contrary

evidence.

The trial court could permissibly conclude that

Cranston's proposed alternatives rebutting this evidence were not

feasible. Cranston suggests that Omnipoint was required to go back

to the country club a fourth time to try to make a deal by,

presumably, sweetening the pot further than it had before when it

increased its usual rate and added a bonus payment. That is pure

speculation. Cranston offered no evidence that the divided owners

of the country club would have agreed, particularly as they had

previously rejected any digging up of the fairway, which most of

the proposals entailed. Nor did Cranston offer any evidence that

Omnipoint had been commercially unreasonable. Omnipoint does not

argue, and this case does not turn on, a claim by a carrier that

economic infeasibility alone makes an alternative site unavailable.

The court, having found Maxson's testimony neither

supported by fact nor by experience, was warranted in rejecting his

view that Omnipoint should have adopted an alternative technology

that the company did not use or, in the case of the fire department

museum, that provided largely repetitive coverage with another

tower to solve the gap. On this evidence, the district court did

not err by finding the Solid Rock Church site was Omnipoint's only

feasible option.

Affirmed.

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