T-Mobile Northeast LLC v. Loudoun County Board of Supervisors

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2396

T-MOBILE NORTHEAST LLC,

Plaintiff - Appellee,

v.

THE LOUDOUN COUNTY BOARD OF SUPERVISORS,

Defendant - Appellant.

No. 12-2397

T-MOBILE NORTHEAST LLC,

Plaintiff - Appellant,

v.

THE LOUDOUN COUNTY BOARD OF SUPERVISORS,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cv-01201-GBL-JFA)

Argued: December 12, 2013 Decided: April 3, 2014

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion
for the court except as to Part IV.C.1 in part and Part IV.C.2,
in which Judge Agee concurred except as to Part IV.C.1 in part
and Part IV.C.2. Judge Niemeyer wrote a separate opinion as to
Part IV.C.1 in part and Part IV.C.2. Judge Agee wrote a
separate opinion concurring in part. Judge Wynn wrote a
separate opinion concurring in part and dissenting in part.

ARGUED: Thomas David Stoner, GREEHAN, TAVES, PANDAK & STONER,
PLLC, Chantilly, Virginia, for Appellant/Cross-Appellee. Thomas
Scott Thompson, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C.,
for Appellee/Cross-Appellant. ON BRIEF: J. Patrick Taves,
Michael W.S. Lockaby, GREEHAN, TAVES, PANDAK & STONER, PLLC,
Chantilly, Virginia; John R. Roberts, County Attorney, Ronald J.
Brown, Deputy County Attorney, LOUDOUN COUNTY ATTORNEY’S OFFICE,
Leesburg, Virginia, for Appellant/Cross-Appellee. Daniel P.
Reing, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C., for
Appellee/Cross-Appellant.

2
NIEMEYER, Circuit Judge, for the court except as to Part IV.C.1
in part and Part IV.C.2:

In October 2011, the Loudoun County (Virginia) Board of

Supervisors denied the applications of T-Mobile Northeast LLC

for permits to build two telecommunication towers in Loudoun

County -- one disguised as a bell tower, to be located on the

property of a church in Sterling (in the eastern part of the

county), and one disguised as a silo on a farm in Lovettsville

(in the northern part of the county). T-Mobile commenced this

action under the Telecommunications Act of 1996, challenging the

Board’s decisions.

On cross-motions for summary judgment, the district court

concluded that the Board improperly denied T-Mobile’s

application for the silo tower in Lovettsville because the Board

relied on the environmental effects of radio frequency emissions

-- a statutorily prohibited basis for regulation. Even though

the Board had given other valid reasons for its decision, the

court issued an injunction requiring the Board to issue the

necessary permits for the site, concluding that if it remanded

the case, the valid reasons would only become a subterfuge for

the invalid environmental reason. The district court affirmed

the Board’s decision denying permits for the bell tower in

Sterling because (1) substantial evidence supported the Board’s

decision; (2) a denial of the permits would not have the effect

3
of prohibiting T-Mobile from providing personal wireless service

to its customers; and (3) the decision was not based on the

environmental effects of radio frequency emissions.

On appeal, the Board contends that the illegal reason it

gave for denying the application for the silo tower represented

the views of only one member of the Board and was not binding on

the Board. Moreover, it argues, it gave other valid reasons

sufficient to justify denial of T-Mobile’s application for the

silo tower. On its cross-appeal, T-Mobile contends that neither

of the Board’s denials were supported by substantial evidence

and, with respect to the bell tower, that the Board’s decision

denied it the ability to fill significant gaps in its wireless

coverage and therefore effectively prohibited it from providing

personal wireless service, in violation of the Act. It also

contends that the Board relied on radio frequency emissions to

deny the bell tower application, although not expressly.

For the reasons given herein, we affirm the district

court’s rulings as to both of the Board’s decisions.

I

T-Mobile’s business includes the provision of personal

wireless service, along with other telecommunications services,

in the Washington metropolitan area, including Loudoun County.

Its wireless network, like other wireless networks, operates by

4
transmitting radio signals to and from antennas mounted on

towers, poles, buildings, or other structures. In order to

provide reliable service, it must have multiple antennas

arranged in a grid by which to overlap coverage. While T-Mobile

currently has 56 wireless telecommunications facilities in

Loudoun County, it determined, based upon its engineers’

analyses, that it still had substantial gaps in coverage in the

areas at issue here. To address the deficiency, T-Mobile

identified two locations at which it sought to build new

wireless telecommunication facilities: (1) the property

surrounding the Christ Our Savior Lutheran Church on Jefferson

Drive in Sterling, Virginia (the “Bell Tower Site”) and (2) the

area surrounding the Stephens family farm in Lovettsville,

Virginia (the “Silo Site”). After making arrangements with both

the Stephens family and the Church for construction of

facilities on their properties, T-Mobile submitted applications

to the Loudoun County Board of Supervisors for permits to

construct monopole antennas at the sites -- one disguised as a

silo and the other as a bell tower.

In order to build on the sites, T-Mobile was required to

secure from Loudoun County: (1) a “commission permit,” which

issues initially from the County Planning Commission and is

reviewed by the Board for final approval, and (2) a zoning

“special exception,” which is granted by the Board. In

5
evaluating both types of applications, the Planning Commission

and the Board consider the location and character of the

proposed structure to determine whether it is in accord with the

Loudoun County Comprehensive Plan (the “Comprehensive Plan” or

the “Plan”). Since 1996, the Comprehensive Plan has included a

“strategic land use plan for telecommunications facilities” that

favors the construction of such facilities on existing

structures and requires compatibility with other land uses. The

plan requires that proposals for facilities include siting and

design elements that “mitigate negative impacts” and satisfy a

number of aesthetic criteria. Also, the county’s zoning rules

require that such facilities be “compatible with development in

the vicinity with regard to the setting, color, lighting,

topography, materials, and architecture.” The plan’s overall

goal is to ensure that telecommunications facilities “blend with

the background.”

The Silo Site application

T-Mobile’s Silo Site application proposed a monopole hidden

in a 125-foot-high farm silo that T-Mobile would construct.

When the Planning Commission voiced concerns about the height of

the silo, T-Mobile revised its proposal to reduce the height to

100 feet. The Planning Commission then issued a commission

permit and recommended approval of the facility, finding that

6
the design was in conformity with the Comprehensive Plan. After

T-Mobile submitted the Planning Commission’s decision to the

Board, the Board held a public hearing in July 2011 on both the

commission permit and the special exception. County residents

present spoke mostly in opposition to the proposal, mentioning

concerns about the silo’s aesthetics and the antenna’s emission

of radio waves. In response to the continuing comments

regarding aesthetics at the Board meeting, T-Mobile again

revised its proposal, reducing the proposed height of the silo

to 90 feet.

The Board conducted a business meeting on October 17, 2011,

to vote on the Silo Site application. During the meeting, the

Board members (Supervisors) discussed reasons for rejecting the

application, including aesthetic concerns and the availability

of other potential sites. Supervisor Miller also requested, in

response to the numerous comments of citizens, that the Board

include the “negative environmental impact” from radio frequency

emissions as a reason in the pending motion for denying T-

Mobile’s application. The Board accepted Miller’s suggestion to

amend the pending motion and then voted 7 to 2 to carry the

motion. As required by the Telecommunications Act, the Board

issued a written notice of its decision. It gave four reasons

for denying the special exception: (1) the proposed design did

not mitigate the silo’s significant structural presence, thus

7
creating “an unnecessary visual impact on surrounding

properties”; (2) the proposed silo height of 90 feet did not

“blend with the . . . surrounding area”; (3) a denial of the

application would not “have the effect of prohibiting the

provision of personal wireless services in this area”; and (4)

the facility would have a “negative environmental impact.” And

it gave two reasons for denying the commission permit: (1) the

project was not consistent with the strategic land use plan; and

(2) other preferred locations were available to T-Mobile.

The Bell Tower Site application

T-Mobile’s original application for a telecommunications

facility on the Church property included a proposal to construct

an 80-foot flagpole that would house the antenna. When the

Planning Commission rejected that proposal, T-Mobile amended it

to propose instead an 80-foot bell tower to house the antenna.

During the ensuing review process, T-Mobile made a number of

additional changes in design, such as varying the color scheme

of the structure to better blend with the background. It also

offered alternative designs, such as a steeple or tree pole.

After a lengthy give-and-take process, the Planning Commission

issued the commission permit and recommended approval of the

facility.

8
 The Board held its public hearing on the Bell Tower Site

application on September 12, 2011, and citizens raised a number

of concerns with the project, primarily aesthetic, referring to

the proposed facility’s visual impact. As with the Silo Site,

some citizens also raised concerns over the possible negative

health impacts of radio frequency emissions.

The Board conducted a business meeting on the Bell Tower

Site application on October 4, 2011, and, following a brief

discussion, voted to reject it. The Board’s written notice of

decision gave as reasons that the proposed facility (1) was not

at a preferred location; (2) was not on an existing structure;

(3) was in a residential area; and (4) did not mitigate the

impact on adjacent residential uses. The Board did not refer to

the citizens’ concerns over radio frequency emissions and gave

no indication that it relied on such concerns to deny the

application.

Following the Board’s rejection of its applications, T-

Mobile commenced this action, alleging that the Board

overstepped several limitations imposed on it by the

Telecommunications Act of 1996. With respect to the Silo Site,

T-Mobile alleged that the Board’s denial was not supported by

substantial evidence and was made on the basis of the

environmental effects of radio frequency emissions. And with

respect to the Bell Tower Site, it alleged that the Board’s

9
rejection was not supported by substantial evidence, caused an

effective prohibition of service, and was made on the basis of

radio frequency emissions.

On the parties’ cross-motions for summary judgment, the

district court entered judgment in favor of T-Mobile on the Silo

Site, concluding that although the Board’s rejection was

supported by substantial evidence, the Board improperly relied

on the environmental effects of radio frequency emissions. The

court entered an injunction directing the Board to issue the

necessary permits to T-Mobile for construction of the Silo Site

tower. And, as to the Bell Tower Site, the court entered

judgment in favor of the Board, rejecting each of T-Mobile’s

arguments. T-Mobile Northeast LLC v. Loudoun Cnty. Bd. of

Supervisors, 903 F. Supp. 2d 385 (E.D. Va. 2012).

From the district court’s judgment dated July 20, 2012, the

Board filed an appeal challenging the court’s decision on the

Silo Site, and T-Mobile filed a cross-appeal challenging the

court’s affirmance of the Board’s decision on the Bell Tower

Site, as well as its conclusion that the Board’s decision on the

Silo Site was supported by substantial evidence.

II

The Telecommunications Act of 1996 was enacted “[t]o

promote competition and reduce regulation in order to secure

10
lower prices and higher quality services for American

telecommunication consumers and encourage the rapid deployment

of new telecommunications technologies.” Pub. L. No. 104-104,

110 Stat. 56, 56 (1996). As part of the Act, Congress divided

authority over personal wireless service facilities, preserving

generally to state and local governments their traditional

zoning control over the placement, construction, and

modification of such facilities while, at the same time,

limiting state and local governments’ ability “to frustrate the

Act’s national purpose of facilitating the growth of wireless

telecommunications.” 360° Commc’ns Co. of Charlottesville v.

Bd. of Supervisors of Albemarle Cnty., 211 F.3d 79, 86 (4th Cir.

2000); see also City of Rancho Palos Verdes v. Abrams, 544 U.S.

113, 115 (2005) (noting that the Act “reduc[ed] . . . the

impediments imposed by local governments upon the installation

of facilities for wireless communications, such as antenna

towers”). Specifically, the Act provides that in regulating the

siting and construction of wireless facilities, a state or local

government (1) may not “unreasonably discriminate among

providers”; (2) may not effectively prohibit “the provision of

personal wireless services”; (3) must act on a request to place,

construct, or modify such facilities “within a reasonable period

of time”; (4) must render its decisions “in writing” and with

the support of “substantial evidence contained in a written

11
record”; and (5) may not regulate the placement, construction or

modification of such facilities “on the basis of the

environmental effects of radio frequency emissions to the extent

that such facilities comply with the [FCC’s] regulations

concerning such emissions.” 47 U.S.C. § 332(c)(7)(B). State

and local governments must comply with each of these provisions

when regulating wireless facilities.

The Act provides that anyone “adversely affected” by a

final decision of a state or local government under § 332(c)(7)

may commence an action “in any court of competent jurisdiction,”

which must hear and decide the action “on an expedited basis.”

47 U.S.C. § 332(c)(7)(B)(v). When such action challenges

whether the state or local government’s decision was supported

by “substantial evidence,” see id. § 332(c)(7)(B)(iii), the

court defers to the state or local government, upholding its

decision if it has “substantial support in the record as a whole

even if [the court] might have decided differently as an

original matter.” New Cingular Wireless PCS, LLC v. Fairfax

Cnty. Bd. of Supervisors, 674 F.3d 270, 274 (4th Cir. 2012)

(quoting AT&T Wireless PCS, Inc. v. City Council of Va. Beach,

155 F.3d 423, 430 (4th Cir. 1998) (internal quotation marks

omitted)); see also AT&T Wireless PCS, Inc. v. Winston-Salem

Zoning Bd. of Adjustment, 172 F.3d 307, 314 (4th Cir. 1999). On

the other hand, if the action alleges that the state or local

12
government violated any of the other statutory limitations on

its regulatory authority, the court decides the issue de novo.

See 47 U.S.C. § 332(c)(7)(B)(v); see also Second Generation

Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.

2002) (“Unlike the substantial evidence issue, the issue of

whether [a board] has prohibited or effectively prohibited the

provision of wireless services is determined de novo by the

district court”); VoiceStream Minneapolis, Inc. v. St. Croix

Cnty., 342 F.3d 818, 833 n.6 (7th Cir. 2003) (applying same

standard).

With these principles in hand, we turn to the issues raised

by the parties on appeal.

III

The Board contends on appeal that the district court erred

in ordering it to grant T-Mobile permits to construct the

facility at the Silo Site in Lovettsville on the basis that the

Board illegally relied on the environmental effects of radio

frequency emissions. See 47 U.S.C. § 332(c)(7)(B)(iv). The

Board argues that this reason, albeit illegal, was given by only

one Board member and therefore was “not binding on the Board as

a whole.” The Board also argues that even if this reason were

binding on it, its decision to deny the application was also

based on valid reasons that were sufficient to deny the

13
application, and that therefore the court’s injunction was

simply punishment for the inclusion of an illegal reason.

At its October 17, 2011 meeting, the Board rejected T-

Mobile’s application for the Silo Site, citing the silo’s

“significant structural presence” and related aesthetic

complaints. At the suggestion of Supervisor Miller, the Board

also included as a reason for rejection the antenna’s “negative

environmental impact.” As Supervisor Miller explained, “We've

had speaker after speaker come in here and talk to us about

their concerns of being exposed to radiation from an evolving,

dynamic technology.” With particular relevance to the issue

before us, in proposing his amendment, Supervisor Miller told

the Board that it was made “notwithstanding the prohibition on

what I’m going to propose [i]n the Telecommunications Act of

1996.”

Although the district court concluded that the aesthetic

reasons the Board gave for denying T-Mobile’s application were

supported by substantial evidence, it also concluded that the

Board nonetheless impermissibly relied, “at least in part,” on

the environmental effects of radio frequency emissions. The

court noted that Supervisor Miller

even commented that the Board and other local
governing bodies deny wireless facility applications
on the prohibited basis of environmental impact but
cite permissible reasons as subterfuge for their true
concerns. Despite Supervisor Miller’s admission to

14
 violating federal law, the Board finally adopted his
proposed amendment by a 7-to-2 vote.

Loudoun Cnty., 903 F. Supp. 2d at 409 (citation omitted). The

court refused to rule that the valid reasons given by the Board

to deny T-Mobile’s application should allow it to overlook the

invalid reason because the Board’s decision to include the

illegal reason was deliberate, and any remand to allow the Board

to reform its reasons would only contribute to the Board’s

subterfuge:

The evidence before the Court urges the conclusion
that a remand would result in the Board simply
justifying denial of the Stephens Silo application by
citing the same permissible reasons listed in the
written decision challenged in this action. The Court
is not satisfied that this decision would be valid
under the Telecommunications Act, particularly in
light of Supervisor Miller’s comment that the Board
falsely cites lawful reasons as pretexts for
unlawfully denying permit applications and the Board’s
silent approval of Supervisor Miller’s proposal. A
remand would simply invite the Board to violate the §
332(c)(7)(B) again while concealing its violation with
false justifications for denying T-Mobile’s
application.

Loudoun Cnty., 903 F. Supp. 2d at 412. In support of its

holding, the court also noted that the record contained

substantial evidence to support approval of the application,

pointing to the County Planning Commission’s recommendation that

the Board approve the proposed facility based on its staff’s

finding that “the interior location and stealth design of the

proposed facility were in conformance with the Comprehensive

15
Plan and sensitive to the surrounding rural agricultural

landscape.” Id. at 411 (internal quotation marks omitted).

Based on our review of the record, we conclude that the

district court correctly held that the Board’s basis for its

decision violated the prohibition against regulating on the

basis of radio frequency emissions.

First, the record shows that Supervisor Miller’s comments

during the Board meeting were not isolated, either from the

evidence before the Board or from the Board’s own views. The

record shows that discussions of health concerns were prevalent

throughout the several hearings. On July 11, 2011, the Board

questioned a representative of T-Mobile about the transmission

wattage of the antenna at the Silo Site and whether the signal

would be “optimized” in such a way that would increase the

radiation exposure level. At the same hearing, a citizen

testified that her two boys and “other children . . . [would] be

affected by the electromagnetic radiation.” And in light of

these comments about “health and safety,” a T-Mobile employee

offered to address the safety concerns of the citizens.

Again at a September 21, 2011 hearing to discuss the

application, Supervisor York stated:

But I do have a question because I hear we are
concerned about the radio waves and the possibility of
health issues, which I don’t even think we have the
ability to consider under FCC rules. But having
give[n] that, now I am hearing the limit to three

16
 users [on the proposed monopole]. Are there more
radio wave impacts for health issues with each user on
a tower? In other words, if you limit to one, is it
different than if you have five users on a tower or is
it the same no matter what?

A T-Mobile representative responded that there would be some

increase in radio frequency emissions with an increase in the

number of telecommunications providers using the tower but that

the increase would not present a health risk.

Finally, at the October 17, 2011 Board meeting, Supervisor

Miller successfully requested that radio frequency emissions be

given as a reason for denying the permits. As he explained:

We’ve had speaker after speaker come in here and talk
to us about their concerns of being exposed to
radiation from an evolving, dynamic technology.

* * *

Unless these applications are going to be reviewed and
voted on by the Congress of the United States, they
have done the opposite of occupy the field by
depriving the level of government that does have to
review and vote on these applications the right to
consider something that our direct constituents have
asked us to look at. Governments at our level all
over the country do the same thing when they decide
that’s the reason to turn down one of these
applications: They lie. They give a reason that’s on
the legal list when that’s not what’s on their mind.

I want this decided in a court of law that will be
asked the question, Do we have the right to look at
something that Congress closed its eyes to 15 years
ago and in the context of an evolving technology where
frequencies change, power levels change, radiation
patterns change, and studies have been made available
since the decision was made that there are risks to
being exposed this close.

17
When Supervisor Miller made a motion to include the health

effects of radiation as a reason for denying T-Mobile’s

application, the Board added the reason to the motion to deny

the application and voted 7 to 2 to carry the motion. The

written denial given by the Board specifically included the

health risk reason.

Based on this record, it is thus indisputable that the

Board as a whole regulated on the basis of radio frequency

emissions, a prohibited basis under the Act. See 47 U.S.C. §

332(c)(7)(B)(iv). This explicit statutory prohibition against

regulating the placement, construction, and modification of

wireless facilities “on the basis of the environmental effects

of radio frequency emissions” is a limitation imposed by the Act

on the Board’s authority. And the fact that the Board relied on

valid reasons to support its decision does not immunize its

violation of a statutory limitation. As noted by the Supreme

Court, each subsection in § 332(c)(7)(B) is a “specific

limitation[] on the traditional authority of state and local

governments to regulate the placement, construction, and

modification of [wireless] facilities.” City of Ranchos Palos

Verdes, 544 U.S. at 115 (2005). We thus conclude that the fact

that the Board gave valid reasons for its decision, which by

themselves would be sufficient, does not immunize it from its

violation of the statutory limitation.

18
 We also agree with the district court that in the

circumstances presented -- where radio frequency emissions were

a genuine and substantial concern of the Board and where the

County Planning Commission, when considering factors other than

radio frequency emissions, found the Silo Site application in

compliance with the existing criteria for evaluating such

applications -- the matter should not be remanded to the Board.

The district court properly interpreted the record in concluding

that while the Board would, on remand, omit its concerns over

radiation when giving reasons for denial of the application, the

radiation concerns would nonetheless persist as part of the

decisionmaking process. To reject the district court’s

conclusions in the circumstances presented in this case would

mock Congress’s prohibition against the use of radio frequency

emissions as a basis for regulating wireless facilities when

those emissions were in compliance with FCC regulations. See 47

U.S.C. § 332(c)(7)(B)(iv).

The Board devotes a substantial portion of its brief on

appeal to noting that it gave legitimate reasons for denying T-

Mobile’s Planning Commission permit and that only its denial of

the special exception included improper environmental health

concerns. It thus argues that the environmental reasons had no

effect on the ultimate decision because T-Mobile would have been

ineligible to obtain a special exception without first obtaining

19
a commission permit. Yet the Board did not reject the special

exception on the basis that T-Mobile was ineligible for one.

While the Board’s technical description of its procedure

may be accurate, the district court correctly concluded that the

Board denied T-Mobile’s application in one regulatory action.

It conducted its hearings on both the permit and the special

exception simultaneously, receiving the comments of citizens in

connection with both; it addressed one motion when articulating

the reasons for denying T-Mobile’s application; and it issued

one decision for both, even though it did, in its written notice

of that decision, separate the reasons for denying the permit

and the special exception. That formality, however, did not

change the fact that the Board was regulating T-Mobile’s

placement of the antenna at the Silo Site on the basis of the

environmental effects of radio frequency emissions.

The Telecommunications Act does not limit particularized

local procedural mechanisms; it limits all local regulatory

authority, providing that “[n]o State or local government . . .

may regulate the placement, construction, and modification of

personal wireless service facilities on the basis of the

environmental effects of radio frequency emissions,” by whatever

means. 47 U.S.C. § 332(c)(7)(B)(iv) (emphasis added). Thus, in

this case, regardless of the mechanism employed, the Board

regulated the placement of T-Mobile’s proposed facility based on

20
radio frequency emissions, and its argument assigning reasons to

one mechanism for denial and not the other does not justify its

violation of the limitation.

Because we affirm the district court’s injunction directing

the Board to grant the necessary permits for the Silo Site, we

need not address T-Mobile’s arguments challenging the

sufficiency of the other evidence given by the Board for its

rejection of T-Mobile’s application.

IV

On its cross-appeal, T-Mobile contends that the district

court erred in affirming the Board’s denial of its application

to construct a wireless facility at the Bell Tower Site. It

argues (1) that the Board’s decision was not supported by

substantial evidence, as required by 47 U.S.C. §

332(c)(7)(B)(iii); (2) that the decision effectively prohibited

T-Mobile from providing its customers with personal wireless

service, in violation of § 332(c)(7)(B)(i)(II); and (3) that the

decision was made “on the basis of the environmental effects of

radio frequency emissions,” in violation of § 332(c)(7)(B)(iv).

Before we address these arguments, however, we address the

Board’s contention that T-Mobile did not have Article III

standing to challenge in court the Board’s decision on the Bell

Tower Site.

21
 A

The Board’s standing argument is based on its contention

that T-Mobile did not have any property interest in the Bell

Tower Site to vindicate. See Warth v. Seldin, 422 U.S. 490, 498

(1975) (holding that to have Article III standing, the plaintiff

must have “a personal stake in the outcome of the controversy”);

see also Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000) (noting that standing requires

a plaintiff to have suffered an injury that “will be redressed

by a favorable decision”). The Board’s position rests on the

fact that T-Mobile’s original written agreement with the Church

covered the placement of a flagpole on its property, which the

Planning Commission rejected, and that the Church and T-Mobile

never modified the agreement to give T-Mobile a right to place a

bell tower on the property, as ultimately proposed. The Board

argues that even if the court were to find that the Board’s

decision denying the Bell Tower application was unlawful and

subsequently were to grant T-Mobile injunctive relief, T-Mobile

would still not be able to build its facility without the

consent of the Church. Accordingly, the Board concludes, the

court had no ability to redress T-Mobile’s injuries, as required

for standing.

The Board’s argument, however, is based on an overly

restrictive view of the interests that T-Mobile sought to

22
vindicate in court. While the written agreement with the Church

did indeed anticipate an antenna disguised as a flagpole, it

also anticipated revisions to the plan. Moreover, the Church

agreed to cooperate with T-Mobile in the development of any

revised plan and did so throughout the application process.

When T-Mobile first proposed a bell tower, in lieu of a

flagpole, a representative of the Church sent an email

indicating that they “like[d] the idea of a bell tower.”

Similarly, when further refinements of the proposal were

forwarded to the Church, the representative indicated that “it

looks good to us.” Representatives of the Church also attended

Planning Commission meetings in support of T-Mobile’s Bell Tower

Site application, and the officially designated representative

of the Church, who had conducted the negotiations with T-Mobile,

later submitted an affidavit stating that “the current design of

the proposed wireless facility, which the Church has approved,

is a freestanding structure with the appearance of a bell

tower.” (Emphasis added).

T-Mobile expended substantial time and money in pursuing

the Bell Tower Site application, and it certainly would not have

done so if it had any reason to believe that it could not have

benefited from the effort. We conclude that it had a sufficient

interest in the Bell Tower Site and in the outcome of its permit

23
application process to give it standing to challenge in court

the Board’s denial of its application.

B

On the merits of T-Mobile’s challenge of the Board’s Bell

Tower decision, T-Mobile argues first that the Board did not

have substantial evidence in the record to support its decision,

thus violating § 332(c)(7)(B)(iii). We disagree.

The record contains the testimony of numerous citizens in

the community, as well as citizen petitions and emails, stating

their strong opposition to the construction of the Bell Tower

facility. The residents noted that the tower would be out of

proportion with the surrounding natural environment; that it

would diminish the value of their properties; and that the

machinery used to support the operation of the tower, such as

generators, would introduce unwanted noise. These concerns

constituted a legitimate basis for the Board’s denial of the

application. See New Cingular Wireless, 674 F.3d at 274 (“[A]

proposed telecommunication facility’s negative impact on the

neighborhood may support a finding of substantial evidence”

(internal quotation marks omitted)); City Council of Virginia

Beach, 155 F.3d at 427 (upholding rejection based on “preserving

the character of the neighborhood and avoiding aesthetic

blight”).

24
 T-Mobile contends, however, that these aesthetic

considerations were not legitimate in this case because existing

zoning at the site already authorized the Church to construct a

bell tower for its own use up to a height of 74 feet. It argues

that because the county’s zoning rules would accept the visual

impact of a similar bell tower without a telecommunications

antenna within it, it was not legitimate to reject T-Mobile’s

bell tower based on visual impact. But the fact that the Church

would not need a special exception to construct a similar bell

tower without a telecommunications facility in it does not imply

that citizens may not have legitimate objections to such a

tower. Moreover, T-Mobile fails to recognize that any zoning

decision reflects a balance between the benefit provided by the

facility and the aesthetic harm caused, and thus a local

government might be willing to tolerate what is aesthetically

displeasing for one type of use but not for another.

The district court did not err in concluding that the

Board’s aesthetic reasons had “substantial support in the record

as a whole.” New Cingular Wireless, 674 F.3d at 275.

C

1
T-Mobile next argues that the Board’s denial of its Bell

Tower Site application had the effect of prohibiting it from

providing personal wireless service, in violation of §

25
332(c)(7)(B)(i)(II) (“The regulation of the placement,

construction, and modification of personal wireless service

facilities by any State or local government . . . shall not

prohibit or have the effect of prohibiting the provision of

personal wireless services”). The district court rejected T-

Mobile’s argument because T-Mobile failed to carry its burden of

showing “an effective absence of coverage,” failed to

demonstrate a “lack of reasonable alternative sites,” and failed

to show that further efforts for alternative sites would be

“fruitless.”

To show that a local government regulation or decision

“prohibit[s]” service or has “the effect of prohibiting”

service, the telecommunications provider may demonstrate that

the regulation calls for the rejection of all wireless

facilities -- i.e., that “a local governing body has a general

policy that effectively guarantees rejection of all wireless

facility applications.” T-Mobile Northeast LLC v. Fairfax Cnty.

Bd. of Supervisors, 672 F.3d 259, 266 (4th Cir. 2012). Or, if

the local government rejects a facility at a single site, the

telecommunications provider may demonstrate that the rejection

was “tantamount to a general prohibition of service.” Id.

(internal quotation marks omitted). To make that showing, the

telecommunications provider must demonstrate (1) that there is

an “effective absence of coverage” in the area surrounding the

26
proposed facility, and (2) that there is a “lack of reasonable

alternative sites to provide coverage” or that “further

reasonable efforts to gain approval for alternative facilities

would be ‘fruitless.’” Id. at 268 (citing Albemarle Cnty., 211

F.3d at 87-88). This burden is “substantial and is particularly

heavy when . . . the [telecommunications provider] already

provides some level of wireless service to the area.” Id.

The “effective absence of coverage” does not mean a total

absence; it may mean coverage containing significant gaps. See

Albemarle Cnty., 211 F.3d at 87-88. This cannot, however, be

defined metrically by simply looking at the geographic

percentage of coverage or the percentage of dropped calls. It

is a contextual term that must take into consideration the

purposes of the Telecommunications Act itself. See City of

Rancho Palos Verdes, 544 U.S. at 115. The Telecommunications

Act announces that among its purposes are the goals of

“promot[ing] competition”; “secur[ing] . . . higher quality

services for American telecommunications consumers”; and

“encourag[ing] the rapid deployment of new telecommunications

technologies.” Pub. Law. No. 104-104, 110 Stat. 56, 56 (1996).

We should therefore not read § 332(c)(7) to frustrate these

goals. See City of Rancho Palos Verdes, 544 U.S. at 115. While

§ 332(c)(7)(A) preserves state and local authorities’

traditional authority to regulate the design and siting of

27
wireless facilities, the express limitations of § 332(c)(7)(B)

promote the purposes of securing higher quality wireless

services and encouraging new technology. See also City of

Rancho Palos Verdes, 544 U.S. at 115.

The technology of 10 years ago may have only supported

wireless service that had substantial gaps in coverage and high

dropped call rates. But the technology of today supports

increased wireless coverage with reduced rates of dropped calls.

On this trajectory, the technology of tomorrow may support 100%

coverage with no dropped calls, and the focus may instead be on

subtler issues about the nature and strength of signals for

particular uses. The Telecommunications Act clearly intends to

encourage this technological development and, to that end, to

protect such development from interference from state and local

governments when approving the design and location of

facilities. This is manifested in § 332(c)(7)(B). Thus, in

construing the level of service protected by §

332(c)(7)(B)(i)(II), we must take a contextual approach and

cannot rely on any specific formula. See Fairfax Cnty., 672

F.3d at 267 (observing that “reviewing courts should not be

constrained by any specific formulation, but should conduct a

fact-based analysis of the record, as contemplated by the Act”).

28
 2

Even though we affirm the Board’s decision on the ground

that T-Mobile failed to show that there was a lack of

alternative sites from which to provide coverage or that further

efforts to gain approval for alternative facilities would be

fruitless -- as we explain below -- we nonetheless also address

T-Mobile’s effort to establish an effective absence of coverage

at the Bell Tower Site. This issue is one that was at the core

of the parties’ arguments and, even with our affirmance on the

basis of the alternative-sites issue, the issue of effective

coverage remains open as T-Mobile makes efforts to pursue

facilities at alternative sites in the same area and again

attempts to demonstrate an effective absence of coverage.

In this case, T-Mobile provided evidence that it had a

dropped call rate of 1.82% in the area of the Bell Tower Site

and an access failure rate of 2.8% in buildings within that

area. The district court, noting that “[t]he Fourth Circuit

Court of Appeals has not directly resolved the question of

precisely what minimum level of wireless service is adequate

under subparagraph B(i)(II),” relied primarily on these dropped-

call rates in holding that T-Mobile failed to meet its burden of

demonstrating a question of fact as to its absence of coverage.

But providing coverage may be more than simply ensuring low

dropped-call rates. T-Mobile also provided evidence from

29
“advanced computer propagation modeling” and “actual drive test

data” of what its expert called a “significant gap” in in-

building coverage in the area of the Bell Tower Site, an area

consisting of “approximately 1.4 square miles,” in which there

are “approximately 10,536 residents.” Its expert testified that

this level of signal strength effectively prohibited it from

providing “acceptable” personal wireless service inside of

buildings. The expert witness testified that consumers demand

to be able to reliably make and maintain wireless calls, and in

some cases, to access wireless data service, within their homes

and offices and that if T-Mobile lacks sufficient signal

strength to reliably provide service in buildings, it is not,

from a consumer’s perspective, providing service.

In contrast, the Board’s expert conducted a separate

computer propagation modeling study, using different methods

than T-Mobile, and found fewer gaps in service than T-Mobile

did. We are not in a position to assess the relative merits of

those studies here, but the Board’s expert acknowledged that “if

you accept T-Mobile’s definition of reliable and if you accept

their methodology at arriving at their definitions of signal

strength threshold, then . . . there are areas around . . . the

Church site, that do not have reliable in-building service at

some locations at some time.” When asked directly whether she

disagreed with T-Mobile’s conclusion that it was unable to

30
provide reliable in-building service around the Church site, the

Board’s expert witness responded, “I think that is an open

question.”

We conclude that this evidence is sufficient to create at

least a factual question about the effective absence of coverage

at the Bell Tower Site and therefore that the district court

should not have resolved that question against T-Mobile as a

matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 255 (1986).

3

As we have already indicated, T-Mobile failed to satisfy

the second prong for showing an effective absence of coverage at

a particular site -- that is, it failed to show that there was a

lack of reasonable alternative sites from which to provide

coverage or that “further reasonable efforts to gain approval

for alternative facilities would have been fruitless.” Fairfax

Cnty., 672 F.3d at 266.

T-Mobile claimed that any alternative sites were inadequate

because they were not of sufficient height. But it conceded

that constructing multiple antennas at reduced heights would

“provide some improvement of coverage . . . within their

respective areas.” The Board’s expert witness went further and

identified numerous other sites capable of providing the

enhancement of service desired by T-Mobile, including both new

31
and existing structures. And she asserted that antennas at a

combination of two sites -- one to the northeast of the Bell

Tower Site and another to the southwest of the Site -- would

provide better service than one alone at the Bell Tower Site.

While T-Mobile did dispute the efficacy of many of the

alternative sites separately, it failed to show that the

alternative sites would, in the aggregate, not provide

sufficient coverage.

The district court also determined that T-Mobile failed to

show that attempting to place its wireless facilities at

alternative sites would have been “fruitless.” We agree.

The Board identified alternative sites that “would not

require the construction of free-standing monopoles or towers,

but would require the collocation of T-Mobile’s wireless

facilities on existing buildings, a preferred location under the

County’s Telecom Plan.” Based on our review of the record, we

do not believe that the district court erred in its finding that

“T-Mobile [had] cite[d] no provision in the Zoning Ordinance or

Comprehensive Plan suggesting that any efforts to collocate

wireless facilities on the existing structures . . . would be

‘fruitless.’” T-Mobile, 903 F. Supp. 2d at 402.

We thus conclude that on this record, T-Mobile did not

carry its substantial burden of demonstrating that alternative

sites were not available to remedy the deficiency in coverage

32
that it had identified. Accordingly, we affirm the district

court’s conclusion that the Board’s denial of the application

for the Bell Tower Site did not cause an effective prohibition

of service in the area.

D

Finally, T-Mobile contends that the Board made its decision

regarding the Bell Tower Site in part on the basis of the

environmental effects of radio frequency emissions, in violation

of § 332(c)(7)(B)(iv). It argues that the “overwhelming focus

of the public comment both explicitly and indirectly centered on

the fears of radio frequency emissions” and that “the Board

denied the Bell Tower Site based on residents’ concerns

regarding the health effects of RF emissions, while concealing

that reason behind the veil of ‘visual impact.’”

The record shows that citizens did voice objections to the

Bell Tower Site on the basis of health concerns. But the Act

does not prohibit citizens from expressing such concerns; it

prohibits the Board’s acting on them. See T-Mobile Northeast

LLC v. City Council of Newport News, 674 F.3d 380, 390 (4th Cir.

2012). Moreover, the record also shows that citizens objected

for other reasons, all of which were legally valid. They

worried about reductions in the value of their properties; they

pointed out that other local communities prohibited

33
telecommunications towers in residential areas; and they

articulated specific aesthetic complaints.

While the record does indicate that one Board member voiced

concerns about environmental health effects during the

application process, there is no evidence that the Board

discussed including health effects as a reason for denying T-

Mobile’s application. Nor did the Board’s written order refer

to radio frequency emissions as a reason for its decision. At

bottom, unlike the evidence presented in connection with the

Silo Site, there is simply no evidence to indicate that the

Board relied on radio frequency emissions in reaching its

decision on the Bell Tower Site, and T-Mobile’s argument can

only be speculation. Accordingly, we reject it.

V

In sum, we conclude that the Board’s decision to deny T-

Mobile’s Bell Tower Site application was supported by

substantial evidence; did not have the effect of prohibiting the

provision of personal wireless services in view of the

possibility of other alternatives; and was not made on the basis

of health concerns about radio frequency emissions. And as to

the Silo Site, we conclude that while the aesthetic concerns

that the Board gave for denying T-Mobile’s application were

supported by substantial evidence, its decision to base the

34
denial of T-Mobile’s application on improper environmental

concerns about radio frequency emissions was prohibited by the

Act. A remand would not eliminate those concerns from

consideration of T-Mobile’s application.

Accordingly, the judgment of the district court with

respect to both Sites is

AFFIRMED.

35
AGEE, Circuit Judge, concurring:

I agree that we should affirm the district court’s

judgment. However, I write separately to underscore that we

need not and do not reach and decide one particular issue:

whether the district court correctly determined the effective-

absence-of-coverage issue.

To affirm the district court’s judgment on T-Mobile’s

effective-prohibition claim, it is enough for us to say that

there were reasonable alternative sites and efforts to secure

permits for those sites would not have been fruitless. By going

further, we “stray into the practice of advisory opinion-making,

solving questions that do not actually require answering in

order to resolve the matters before [us].” Karsten v. Kaiser

Found. Health Plan of Mid-Atl. States, 36 F.3d 8, 11 (4th Cir.

1994). Yet “the oldest and most consistent thread in the

federal law of justiciability is that the federal courts will

not give advisory opinions.” Flast v. Cohen, 392 U.S. 83, 96

(1968) (quotation marks omitted).

Respectfully, then, I do not join Part IV.C.2 of Judge

Niemeyer’s opinion or the portion of Part IV.C.1 of his opinion

that addresses the effective-absence-of-coverage issue. I

36
conclude that these sections –- which are not part of the

opinion of the Court -- offer an advisory opinion. *

*
Even if those portions were part of the opinion of the
Court, they would still be nothing more than non-binding dicta.
See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir.
1999) (“Dictum is [a] statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding -- that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.” (quotation marks omitted)).

37
WYNN, Circuit Judge, concurring in part and dissenting in part:

While I otherwise agree with the majority opinion, I cannot

agree with Part III or with the portion of Part IV.C.1 that

discusses the “effective absence of coverage” aspect of a

telecommunications provider’s burden. As noted on the cover

page of the opinion, Part IV.C.2 does not constitute the opinion

of this court. The discussion in Part IV.C.1 regarding

effective absence of coverage is, therefore, dicta because we do

not decide whether T-Mobile established an effective absence of

coverage. Put differently, because we affirm the Board’s

decision on the ground that T-Mobile failed to show both a lack

of alternative sites and that further efforts to gain approval

of alternative sites would be fruitless, the discussion

pertaining to the effective absence of coverage in Part IV.C.1

is unnecessary to the holding of this case. Therefore, I

decline to join Part IV.C.1’s dicta regarding effective absence

of coverage.

Regarding Part III of the majority opinion, I must dissent

because it fails to fully consider the significance of two

separate and distinct land use entitlements—the special

exception permit and the commission permit. Although the Board

of Supervisors (“Board”) improperly denied the Stephens Silo

special exception permit based on its concerns about radio

frequency emissions, the Board provided distinct and valid

38
reasons for denying the Stephens Silo commission permit.

Neither the majority nor the district court has sufficiently

explained how it is that the improper special exception denial

somehow taints the separate and distinct commission permit

denial, which alone would have been sufficient to bar T-Mobile

from constructing its Stephens Silo project. Because I would

reverse the district court’s order that the Board grant both

permits, I must respectfully dissent from Part III of the

majority opinion.

I.

Focusing on the facts that pertain to the Stephens Silo

site, T-Mobile wanted to construct a wireless telecommunications

facility on a farm in Lovettsville, Loudoun County, Virginia.

Loudoun County’s land use regulations required two separate land

use entitlements before construction: a “commission permit” and

a “special exception.”

The Board and the Planning Commission make decisions on

whether to grant such entitlements. In doing so, they are

guided by the policies and regulations in Loudoun County’s

Comprehensive Plan and Zoning Ordinance. 1 Loudoun County’s

1
The State of Virginia requires “every governing body [to]
adopt a comprehensive plan for the territory under its
jurisdiction.” Va. Code Ann. § 15.2-2223(A). The purpose of a

39
Comprehensive Plan contains a Telecommunications Facilities Plan

(“Telecom Plan”), which explains that its overarching goal is

“to encourage improvements in telecommunications services while

mitigating the impacts on . . . residents, nearby land uses,

scenic beauty, and rural heritage.” J.A. 314. The Telecom Plan

is generally intended to “ensure compatibility of

telecommunication facilities with nearby land uses” by requiring

collocation of facilities whenever possible, establishing design

criteria and removal provisions, and creating a process “by

which an applicant can demonstrate their compliance with these

policies.” J.A. 314–15.

The Telecom Plan contains specific policies designed to

mitigate the visual impact that antennas, towers, and monopoles

have on the “historic character of the rural . . . areas.” J.A.

318. Of note here, “the County prefers locating new antennas on

existing towers, monopoles or other tall structures[,]” and

“[w]hen existing structures cannot be used, new monopoles or

towers should be sited within the right-of-way for overhead

comprehensive plan is to “guid[e] and accomplish[] a
coordinated, adjusted and harmonious development of the
territory” to “best promote the health, safety, morals, order,
convenience, prosperity and general welfare of the inhabitants .
. . .” Id. A zoning ordinance is a method of implementing the
comprehensive plan. Id. § 15.2-2224(B)(4).

40
utility transmission lines where the visual impact of an

additional tall structure would be minimal.” J.A. 318.

All telecommunication facilities in Loudoun County must

meet specified criteria to demonstrate compliance with the

Comprehensive Plan. The procedural mechanism for ensuring such

compliance is the commission permit, which certifies that the

proposed project is “substantially in accord with the adopted

Comprehensive Plan.” Loudoun Cnty., Va. Zoning Ordinance § 6-

1101(A). In some zoning districts, telecommunication facilities

are permitted “by right[.]” But in other zoning districts, the

Board has determined that telecommunication facilities “have the

potential for a deleterious impact upon the health, safety, and

welfare of the public[.]” Id. §§ 5-618(B), 6-1301. If a

telecommunication facility is proposed in such a zoning

district, the proponent must obtain a special exception in

addition to a commission permit. Id. § 5-618(B)(2). Proponents

of projects that are subject to a special exception must

demonstrate compliance with criteria beyond those required for a

commission permit. Id. § 5-618(B)(3). Ultimately, whether to

grant a special exception is in the Board’s discretion. Id. §

6-1301.

The Stephens Silo site, located in the AR-1 district,

required a special exception in addition to a commission permit.

When the Stephens Silo proposal came before the Board on October

41
17, 2011, the Board voted to overturn the Planning Commission’s

approval of the commission permit and to deny T-Mobile’s

application for a special exception. The Board articulated

different reasons for the denials:

Commission Permit

1. The proposed project is not fully consistent
with the land use policies of the Revised General Plan
and Strategic Land [U]se Plan for Telecommunications
Facilities (Telecommunications Plan). The 1996
Strategic Land Use Plan for Telecommunications
Facilities recommends any new commercial
telecommunication antennas in the rural areas first
locate on existing towers, buildings, or other tall
structures within a two (2) mile radius. . . .
2. Currently there are existing agricultural
silos within a two (2) mile radius on which to locate
telecommunications antennas which are preferred
locations as outlined in the Telecommunications Plan.

Special Exception

1. The proposed design and siting has not
mitigated its significant structural presence, thus
creating an unnecessary visual impact on surrounding
properties.

2. The proposed silo height of 90-feet does not
blend with the natural and built environment of the
surrounding area. The height and appearance is not in
keeping with the silos and other farm structures in
the immediate vicinity.

3. A denial does not have the effect of
prohibiting the provision of personal wireless
services in this area of the County, with current
service available from T-Mobile and others. . . .

Supervisor Miller made a friendly amendment to include
negative environmental impact as the fourth reason for
denial of the SPEX 2010-0020.

J.A. 1180–81.

42
 II.

Thus, the Board articulated separate and distinct reasons

for denying each permit. Regarding the commission permit, the

reasons given for its denial are directly related to the rural

location policies contained in the Telecom Plan. In denying

that permit, the Board did not exercise discretion; rather, it

made a finding that T-Mobile’s proposal failed to comply with

the Comprehensive Plan—a prerequisite to obtaining a commission

permit. 2 And because T-Mobile could not construct the facility

without first obtaining both permits, the lack of a commission

permit would have been sufficient to preclude T-Mobile from

building its Stephens Silo project.

The majority opinion dismisses this nuance regarding

Loudoun County’s permitting procedures as a mere “formality.”

However, I must agree with the County that T-Mobile could not

2
The majority opinion and the district court find it
significant that the Board overturned the Planning Commission’s
approval of the commission permit. But this fact is
unremarkable for two reasons. First, the Zoning Ordinance makes
clear that the Board has the authority to overturn decisions of
the Planning Commission. Loudoun Cnty., Va. Zoning Ordinance §
6-1104. Second, T-Mobile had justified its decision not to
locate its facilities on nearby silos on the bases that the
nearby property was in foreclosure and that efforts to negotiate
with the owner were “to no avail.” J.A. 1511. But the Board
knew that the property had emerged from foreclosure, and T-
Mobile had made no attempt to negotiate with the new owners.
Thus, T-Mobile failed to demonstrate to the Board’s satisfaction
that it used its best efforts to comply with the Comprehensive
Plan’s rural location policies.

43
construct its facility without the commission permit and that

the denial of the special exception was thus “superfluous.”

Appellant’s Br.at 37. And neither the district court nor the

majority opinion has explained how it is that the improper

“superfluous” denial tainted or in any way impacted the proper

and supported commission permit denial.

In sum, I agree with the majority opinion regarding the

Board’s denial of the special exception. That denial—based on

concerns about radio frequency emissions, which the

Telecommunications Act unequivocally places beyond consideration

by local governments—was improper. However, I fail to see how

that invalid denial necessarily taints the proper denial of the

separate, distinct, and additionally required commission permit—

especially when the district court held that the County’s denial

of the commission permit was supported by substantial evidence. 3

Therefore, I must respectfully dissent from that part of

the majority opinion that affirms the district court’s order

3
The majority opinion and the district court express
concerns regarding the effectiveness of remanding this matter to
the Board. However, such concerns are present whenever the
Court orders relief, and nothing suggests that Loudoun County
would flout an order of this Court. Assuming otherwise at the
expense of local procedures places us in the position of
substituting our judgment for that of the local planning agency
and “sitting as a zoning board of appeals[.]” Pomponio v.
Fauquier Cnty. Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir.
1994) (en banc) (overruled on other grounds by Quackenbush v.
Allstate Ins. Co., 517 U.S. 706 (1996)). The job of making land
use decisions is not ours; it belongs solely to local officials.

44
forcing Loudoun County to grant T-Mobile a commission permit for

the Stephens Silo site. And because Part IV.C.2 does not

constitute the opinion of this court, I also decline to join the

portion of Part IV.C.1 that discusses the “effective absence of

coverage” aspect of a telecommunications provider’s burden.

45