PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-2392
____________
CELLCO PARTNERSHIP, d/b/a Verizon Wireless
v.
THE WHITE DEER TOWNSHIP ZONING HEARING
BOARD,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:20-cv-02438)
District Judge: Honorable Christopher C. Conner
____________
Argued: April 20, 2023
Before: HARDIMAN, PORTER, and FISHER,
Circuit Judges.
(Filed: July 14, 2023)
____________
Susan J. Smith [ARGUED]
The Law Office of Susan J. Smith
319 N. 24th Street
Camp Hill, PA 17011
Counsel for Appellant
Scott E. Coburn
Pennsylvania State Association of Township Supervisors
4855 Woodland Drive
Enola, PA 17025
Counsel for Amicus Curiae Appellant Pennsylvania
Association of Township
Supervisors in Support of Appellant
Richard M. Williams
Kevin M. Walsh, Jr.
Hourigan, Kluger, and Quinn, PC
600 Third Avenue
Kingston, PA 18704
Scott H. Angstreich
James Ruck [ARGUED]
Kellogg, Hansen, Todd, Figel & Frederick, PLLC
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Counsel for Appellee
2
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Verizon Wireless sought to erect a cell tower in White
Deer Township, Pennsylvania. Because the proposed structure
did not conform with local zoning ordinances, Verizon
requested several variances. The White Deer Township Zoning
Hearing Board (the Zoning Board) denied the requests, and
Verizon sued under the Telecommunications Act (TCA). The
District Court granted summary judgment for Verizon because
the Zoning Board’s decision had “the effect of prohibiting the
provision of personal wireless services.” See 47 U.S.C.
§ 332(c)(7)(B)(i)(II). We will affirm.
I
A
In White Deer Township, a four-mile gap in Verizon’s
wireless coverage overlays Interstate 80. Verizon customers on
this stretch of highway are likely to experience “dropped
calls,” “ineffective call attempts,” and “garbled audio.” J.A.
161. This could be problematic for stranded drivers trying to
reach emergency services. Verizon set out to fill the gap.
The relevant portion of White Deer Township is located
within Bald Eagle State Forest. Because a 2000 Pennsylvania
moratorium prohibits the construction of cell towers on state
3
forest land, Verizon’s options were limited.1 After considering
several sites and antenna configurations, Verizon decided to
construct a 195-foot monopole topped with a four-foot antenna
on a privately owned parcel of land.
The proposed property is 1.9 acres and contains four
improvements: a cabin, shed, pavilion, and privy. White Deer
Pike runs along its southern edge. Verizon leased 2600 square
feet, or 0.0597 acres, in the northeast corner of the property for
the cell tower.
B
At the time of Verizon’s application, White Deer
Township permitted cell towers that complied with Zoning
Ordinances §§ 307 and 432(H). Under § 307, the minimum
permissible lot size was one acre. White Deer Township, Pa.,
Zoning Ordinance ch. 27, § 307 (2020). And under § 432(H),
1
Pennsylvania imposed the “moratorium on the consideration
of new applications to build towers on State forest and State
park land” twenty-three years ago. J.A. 280. Although of
“indefinite duration,” it was purportedly intended to give the
Department of Conservation and Natural Resources “the
opportunity to thoroughly study and review the general issues
relating to tower construction on public land.” Id. The Federal
Communication Commission asserts that “state and local
moratoria on telecommunications services and facilities
deployment are barred by section 253(a)” of the
Telecommunications Act. Accelerating Wireline Broadband
Deployment by Removing Barriers to Infrastructure Inv., 33
FCC Rcd. 7705, 7707 (2018). The lawfulness of
Pennsylvania’s moratorium is not before us.
4
cell towers “shall be set back from lot lines and structures a
distance equal to the height of the facility, including towers and
antennas, plus 10% of such height.” Id. § 432(H). Because
Verizon’s proposed cell tower conformed with neither the lot
size nor set back requirements, it requested seven variances.
The Zoning Board denied Verizon’s variance applica-
tion. In Pennsylvania, an applicant for variances must allege
that the zoning ordinance “inflict[s] unnecessary hardship.” 53
Pa. Stat. and Cons. Stat. Ann. § 10910.2(a) (2022). The Zoning
Board found that Verizon’s alleged hardship was insufficient
because it was “not a hardship connected to the capacity for the
property to be used reasonably, but rather, the hardship [was
connected to Verizon’s] capacity to use the property as
desired.” J.A. 225. Furthermore, the Zoning Board explained,
its “set back requirements serve a legitimate zoning interest to
protect the property owners, who use the property, and others
who may have occasion to be immediately outside the prop-
erty’s perimeter, if the monopole structure fails.” Id.
C
Verizon sued the Zoning Board in district court, claim-
ing that it violated the TCA by denying Verizon’s variance
application.
Congress passed the TCA in 1996. “[I]ts primary pur-
pose was to reduce regulation and encourage the rapid deploy-
ment of new telecommunications technologies.” Reno v.
ACLU, 521 U.S. 844, 857 (1997) (quotation marks omitted).
Congress preserved local zoning authority over “the place-
ment, construction, and modification of personal wireless ser-
vice facilities,” like cell towers. 47 U.S.C. § 332(c)(7)(A). But
it specified that such regulation “shall not prohibit or have the
5
effect of prohibiting the provision of personal wireless ser-
vices.” Id. § 332(c)(7)(B)(i)(II).
The District Court found that the Zoning Board’s deci-
sion violated the TCA because it had the effect of prohibiting
personal wireless services. So it granted summary judgment for
Verizon and ordered the Zoning Board to approve the variance
application. The Zoning Board appealed.
II
Because the suit was brought under 47 U.S.C.
§ 332(c)(7)(B)(v), the District Court had jurisdiction under 28
U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
“We review [a] grant of summary judgment de novo and
draw all reasonable inferences in favor of the nonmoving
party.” Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 304 (3d
Cir. 2020) (internal citation and quotation marks omitted).
Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We review de novo whether a zoning board’s actions
had the effect of prohibiting the provision of personal wireless
services. APT Pittsburgh Ltd. P’ship v. Penn Twp., 196 F.3d
469, 475 (3d Cir. 1999). We scrutinize zoning decisions that
implicate the TCA “more closely than standard zoning deci-
sions.” Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504
F.3d 370, 378–79 (3d Cir. 2007) (citation omitted).
III
We adopted a two-part test in APT Pittsburgh for decid-
ing whether local government action has the effect of prohibit-
6
ing the provision of personal wireless services. 196 F.3d at 480.
First, the provider must prove there is a significant gap in wire-
less service and, second, the provider must show it is filling
that gap in the least intrusive manner. Id.
In a declaratory ruling, the Federal Communications
Commission (FCC) criticized the APT Pittsburgh test and oth-
ers like it for being too narrowly focused on coverage gaps and
reflecting “an outdated view of the marketplace.” Accelerating
Wireless Broadband Deployment by Removing Barriers to
Infrastructure Inv., 33 FCC Rcd. 9088, 9106–07 (2018).
Instead, it interpreted the statute to prohibit government action
that “materially limits or inhibits the ability of any competitor
or potential competitor to compete in a fair and balanced legal
and regulatory environment.” Id. at 9102.
Under either standard, the Zoning Board’s variance
application denial had the effect of prohibiting the provision of
personal wireless services, so it was unlawful.
A
First, we consider the Zoning Board’s denial under the
APT Pittsburgh test. At step one, a provider seeking relief
under the TCA from government action must show that its
wireless facility will fill “an existing significant gap” in wire-
less services. APT Pittsburgh, 296 F.3d at 480. At step two of
the APT Pittsburgh test, the provider must show that it pro-
poses to fill the coverage gap in the manner “least intrusive on
the values that the denial sought to serve.” Id. We require proof
that the provider made a “good faith effort . . . to identify and
evaluate less intrusive alternatives” such as alternative sites,
alternative designs, and the use of existing structures. Id.
7
Verizon satisfied step one of the APT Pittsburgh test. It
presented evidence that there is a “significant gap” in its wire-
less coverage in White Deer Township and that the proposed
monopole cell tower would fill that gap.2 The Zoning Board
acknowledged the gap in its variance application denial and
does not challenge its existence on appeal.
Verizon also satisfied step two of the APT Pittsburgh
test. It considered several alternatives to the proposed site, but
none were feasible. It considered using other wireless facilities,
building a tower in a distant agricultural district, and erecting
a smaller tower, but none of these options would have effec-
tively filled the coverage gap. It considered using a Distributed
Antenna System instead of a monopole but found that technol-
ogy to be more suited for open areas like parks and ball fields,
not highways. And it explored the possibility of using a
Pennsylvania Department of Transportation facility, but that
2
Previously, we have required the provider seeking relief to
show that the alleged gap is not already being filled by a
different provider. APT Pittsburgh, 196 F.3d at 480; Omnipoint
Commc’ns Enters. L.P. v. Zoning Hearing Bd. of Easttown
Twp., 331 F.3d 386, 399 (3d Cir. 2003). But the FCC has
rejected the so-called “one-provider” approach, explaining that
the denial of a wireless facility application premised solely on
the existence of other providers in the area is “inconsistent with
the [TCA’s] pro-competitive purpose.” Petition for
Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B), 24 FCC Rcd. 13994, 14016 (2009). Because the
Zoning Board does not argue there is a gap in coverage, we
need not decide whether to reaffirm or abandon the “one-
provider” approach.
8
land was leased from the Department of Conservation and
Natural Resources, so it was subject to the Commonwealth’s
cell tower moratorium. Finally, with no other reasonable
alternative, Verizon leased a privately owned parcel within the
service gap. It selected the largest one, which required the least
set-back relief.
On appeal, the Zoning Board argues for the first time
that Verizon should have challenged the state’s moratorium or
considered other alternatives: cessation of the property’s resi-
dential use, removal of the property’s existing structures, or the
construction of a series of smaller towers.3 Because the Zoning
Board did not raise these arguments before the District Court,
it did not preserve them for appeal. Simko v. United States Steel
Corp, 992 F.3d 198, 205 (3d Cir. 2021).
Regardless, a provider need not disprove every possible
alternative, and Verizon provided sufficient evidence to show
that it made a good-faith effort to fill the coverage gap in the
least intrusive manner. So under APT Pittsburgh, the Zoning
Board’s variance denial violated the TCA because it had the
3
In its application denial, the Zoning Board posited that
Verizon could not have exhausted all reasonable alternatives
unless it legally challenged the Pennsylvania moratorium. But
it did not renew this argument in District Court. The District
Court also found that the Zoning Board “provide[d] neither
evidence nor argument suggesting another location or
technological means to address the service gap.” App. 19. We
agree with the District Court’s assessment of the record.
9
effect of prohibiting the provision of personal wireless ser-
vices.
B
We now consider the zoning denial under the “materi-
ally inhibit” standard. The FCC first articulated the “materially
inhibit” standard for 47 U.S.C. § 253(a) in a 1997 adjudication.
33 FCC Rcd. at 9091 (citing California Payphone Ass’n, 12
FCC Rcd. 14191 (1997)). Under the “materially inhibit” stand-
ard, local government action “constitutes an effective prohibi-
tion if it materially limits or inhibits the ability of any compet-
itor or potential competitor to compete in a fair and balanced
legal and regulatory market.” Id. at 9102 (quotation marks
omitted). In its 2018 regulatory guidance, the FCC adopted the
“materially inhibit” standard to determine whether government
action qualifies as an effective prohibition under both 47
U.S.C. § 253(a) and § 332(c)(7)(B). Id. at 9102–03. Because
we did not hold that § 332(c)(7)(B) was unambiguous in APT
Pittsburgh and we believe that the FCC’s interpretation is a
reasonable interpretation of the statute, we adopt the “mate-
rially inhibit” standard today. See Reich v. D.M. Sabia Co., 90
F.3d 854, 858 (3d Cir. 1996) (“Although a panel of this court
is bound by, and lacks authority to overrule, a published deci-
sion of a prior panel, . . . a panel may reevaluate precedent in
light of intervening authority and amendments to statutes or
regulations.”).
1
We begin by considering the authority of the FCC’s
guidance under well-established principles of administrative
law.
10
The FCC has statutory authority to administer 42 U.S.C.
§ 332(c)(7)(B). See City of Arlington v. FCC, 569 U.S. 290,
295, 307 (2013). So its reasonable interpretations of ambigu-
ous provisions within § 332(c)(7)(B) are entitled to Chevron
deference. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council,
Inc., 467 U.S. 837, 843–44 (1984). However, “[a] court’s prior
judicial construction of a statute trumps an agency construction
otherwise entitled to Chevron deference . . . if the prior court
decision holds that its construction follows from the unambig-
uous terms of the statute and thus leaves no room for agency
discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005).
We did not hold that the statute was unambiguous in
APT Pittsburgh. In that case, we adopted the Second Circuit’s
two-part “effect of prohibiting” test. 196 F.3d at 479 (citing
Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir.
1999)). We found the Second Circuit’s test persuasive, not
because it was based on an unambiguous reading of the text,
but because it was “[t]he most thoughtful discussion we have
found” and the reading that “effects the best accommodation
of the two primary goals of the TCA.” APT Pittsburgh, 196
F.3d at 479, 480.
Nor did the Second Circuit find the statute to be unam-
biguous in Willoth. It derived step one, whether there is a sub-
stantial gap in coverage, from “[t]he plain statutory language
of subsection B(i)(II)” and “the appropriate definitions set
forth in the TCA.” Willoth, 176 F.3d at 641. This description
would seem to suggest a lack of ambiguity. But a closer read-
ing shows otherwise.
First, the Second Circuit began by admitting, “[i]t
would be a gross understatement to say that the [TCA] is not a
11
model of clarity.” Id. (quoting AT&T Corp. v. Iowa Utils. Bd.,
525 U.S. 366, 397 (1999) (brackets omitted). Second, the court
concluded that “personal wireless services” was defined
“somewhat opaquely” in the TCA as “commercial mobile ser-
vices, unlicensed wireless services, and common carrier wire-
less exchange services.” Id. (brackets and citation omitted). It
found these three terms to be “lacking in both clarity and
apparent usefulness.” Id. Nevertheless, it cobbled together stat-
utory and regulatory definitions of these terms to conclude that
“the most compelling reading of subsection B(i)(II) is that local
governments may not regulate personal wireless service facil-
ities in such a way as to prohibit remote users from reaching
such facilities.” Id. at 641–43. The court then translated this
understanding to step one of its test: “In other words, local gov-
ernments must allow service providers to fill gaps in the ability
of wireless telephones to have access to land-lines.” Id. at 643.
Step two of the test, whether the provider sought to fill
the gap by in the least intrusive manner, was even less tethered
to the text. The Second Circuit derived it from a First Circuit
case. Id. (citing Town of Amherst v. Omnipoint Communs.
Enters., Inc., 173 F.3d 9, 14 (1st Cir. 1999)). The First Circuit
did not perform any statutory construction in Town of Amherst.
See 173 F.3d at 14.
Because we did not derive the APT Pittsburgh test from
the unambiguous terms of the statute, the FCC’s interpretation
is entitled to deference under the Chevron framework. See
Brand X, 545 U.S. at 983. We agree with the Willoth Court that
the statute is “somewhat opaque,” and thus ambiguous. So we
12
proceed to consider the reasonableness of the FCC’s interpre-
tation under Chevron.4
“We first set forth our understanding of the interpreta-
tion of the [TCA] that the Commission embraced.” Id. The
FCC distinguished coverage-gap-based tests, like ours, as
reflecting an “unduly narrow reading of the statute and an out-
dated view of the marketplace.” 33 FCC Rcd. at 9106. So as a
general matter, the standard applies not only when a provider
is attempting to fill a gap in its wireless service, but also when
a provider is pursuing “the introduction of new services or the
improvement of existing services.” Id. at 9105. Under the new
standard, a local government can materially inhibit personal
wireless services even if the provider has already filled all cov-
erage gaps.
The FCC approvingly cites three applications of the
“materially inhibit” standard that guide our understanding. Id.
at 9110–11. In TCG New York, Inc. v. City of White Plains, the
Second Circuit held that ordinances giving the local council an
4
Multiple Supreme Court Justices have expressed skepticism
towards Chevron and other theories of agency deference. See
Baldwin v. United States, 140 S. Ct. 690, 691 (2020) (Thomas,
J., dissenting from the denial of certiorari) (“Chevron is in
serious tension with the Constitution, the APA, and over 100
years of judicial decisions.”); Kisor v. Wilkie, 139 S. Ct. 2400,
2425 (2019) (Gorsuch, J., concurring in the judgment)
(“[T]oday’s decision [affirming Auer deference] is more of a
stay of execution than a pardon.”). And it has granted certiorari
to address the continued viability of Chevron in the October
2023 Term. See Loper Bright Enterprises v. Raimondo, No. 22-
451 (U.S. cert granted May 1, 2023).
13
unrestricted right to reject telecommunications applications
and imposing extensive application delays “materially inhib-
ited” the right of a provider to compete in a fair marketplace.
305 F.3d 67, 76–77 (2d Cir. 2002). In Qwest Corporation v.
City of Santa Fe, the Tenth Circuit invalidated local regulations
requiring providers to adhere to excess conduit requirements
and to obtain appraisals for proposed rights-of-way because
they imposed a “substantial increase in costs.” 380 F.3d 1258,
1271 (10th Cir. 2004). And in Puerto Rico Telephone
Company v. Municipality of Guayanilla, the First Circuit held
that a 5% gross revenue fee violated Section 253(a) because it
made the provision of wireless services cost prohibitive. 450
F.3d 9, 18–19 (1st Cir. 2006).
From these cases, we derive several key points. First, “a
prohibition does not need to be complete or ‘insurmountable’
to run afoul of” § 332. TCG N.Y., 305 F.3d at 76. To require
such a showing “would lead to disparities in statutory protec-
tions among providers based merely on considerations such as
their access to capital and the breadth or narrowness of their
entry strategies.” 33 FCC Rcd. at 9109.
Second, local government action which either imposes
unreasonable fees or requires a provider to accept unreasonable
costs materially inhibits wireless services. See Qwest Corp.,
380 F.3d at 1271. Such action “materially inhibits” wireless
services because it “drain[s] limited capital resources that oth-
erwise could be used for deployment.” 33 FCC Rcd. at 9115.
This includes not only deployment within the local govern-
ment’s jurisdiction, but around the country. “[P]roviders and
infrastructure builders, like all economic actors, have a finite
. . . amount of resources to use for the deployment of infra-
structure.” Id. at 9118. When a local government imposes
unreasonable costs in its jurisdiction, providers might be effec-
14
tively prohibited from expending capital to deploy wireless
services elsewhere. “The telecommunications interests of con-
stituents . . . are not only local. They are statewide, national and
international as well.” Id. at 9110.
Finally, the “materially inhibit” standard requires us to
consider the totality of the circumstances. A legal requirement
that imposes a reasonable cost on one tower in one jurisdiction
may constitute an effective prohibition when aggregated across
many towers, or many wireless facilities, in several jurisdic-
tions. Id. at 9112; see also P.R. Tel. Co., 450 F.3d at 19 (noting
that a municipality’s “gross revenue fee would constitute a sub-
stantial increase in costs for [the provider] in a regulatory
environment that is becoming increasingly costly due to the
enactment of gross revenue fees by other municipalities”).
Not all local requirements violate the “materially
inhibit” standard. And the FCC offers a framework for local
governments to follow when enacting legal requirements for
wireless facilities. It suggests that ordinances, at least for aes-
thetic requirements, be “(1) reasonable, (2) no more burden-
some than those applied to other types of infrastructure deploy-
ments, and (3) objective and published in advance.” 33 FCC
Rcd. at 9132.
We find this interpretation of the text to be “a reasona-
ble policy choice for the agency to make.” Brand X, 545 U.S.
at 986 (quoting Chevron, 567 U.S. at 845). The FCC first
applied the “materially inhibit” standard in 1997 for evaluating
effective prohibitions under 47 U.S.C. § 253(a). 33 FCC Rcd.
at 9102 (citing California Payphone Ass’n, 12 FCC Rcd. at
14206 (quotation marks omitted)). The standard was taken up
by the First, Second, and Tenth Circuits. Id. It tracks “the
Supreme Court’s own characterization of Section 253(a) as
15
‘prohibit[ing] state and local regulation that impedes the pro-
vision of “telecommunications services.” ’ ” Id. at 9109
(quoting Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 491
(2002)) (emphasis omitted). And it reflects our long-held
understanding of § 253(a). See N.J. Payphone Ass’n v. Town of
W.N.Y., 299 F.3d 235, 242 (3d Cir. 2002) (holding that govern-
ment action violates Section 253(a) when it “reduces competi-
tion and constitutes a barrier to entry”).
Other than § 253(a), the phrase “effect of prohibiting”
also appears in § 332(c)(7)(B)(i)(II). It would defy the “basic
canon of statutory interpretation that identical words appearing
in neighboring provisions of the same statute generally should
be interpreted to have the same meaning,” to apply one stand-
ard under § 253(a) and a different one under
§ 332(c)(7)(B)(i)(II). 33 FCC Rcd. at 9103; see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 170 (2012) (presumption of consistent usage). So
the “materially inhibit” standard, which the FCC has applied to
§ 253(a) since 1997, should also apply to the “effect of prohib-
iting” language in § 332(c)(7)(B)(i)(II).
The “materially inhibit” standard is more consistent
than the APT Pittsburgh test with the TCA’s goals of “promot-
ing competition, securing higher quality services for American
telecommunications consumers and encouraging the rapid
deployment of new telecommunications technologies.” 33
FCC Rcd. at 9105 (quoting Preamble to the
Telecommunications Act of 1996, Pub. Law No. 104-104,
§ 202, 110 Stat. 56 (1996)) (ellipses and brackets omitted).
Coverage-gap-based tests are “incompatible with a world
where the vast majority of new wireless builds are going to be
designed to add network capacity and take advantage of new
16
technologies, rather than plug gaps in network coverage.” Id.
at 9107–08 (quotation marks and citation omitted).
This case reveals the inadequacy of the APT Pittsburgh
test. The Zoning Board plausibly argued that requiring Verizon
to remove the property’s existing structures or to purchase the
property might be less intrusive on the values that the town-
ship’s set-back requirements sought to serve. But it would be
unreasonable for the Zoning Board to require such extreme
measures. The APT Pittsburgh test does not clarify how much
a local government can reasonably require a provider do to
avoid intruding. We think that the “materially inhibit” better
answers this question, as we show in the next section.
2
Applying the FCC’s standard here, the Zoning Board
has materially inhibited the ability of Verizon to compete in a
fair and balanced legal and regulatory market because, consid-
ering the totality of the circumstances, its application denial
prevented Verizon from providing wireless services without
incurring unreasonable costs.
Verizon was constrained by the Pennsylvania morato-
rium, service demands, and property sizes to select its chosen
parcel and monopole design. When the Zoning Board denied
Verizon’s variance application, it claimed not to be effectively
prohibiting personal wireless services because Verizon had not
pursued legal remedies against Pennsylvania.5 Like the excess
5
The Zoning Board appears to believe that its bona fide zoning
concerns should take priority over the moratorium. In that
regard, its real issue seems to be with Pennsylvania. But
Pennsylvania is not a party to this suit, and the moratorium is
17
conduit and appraisal requirements in Qwest Corporation, the
Zoning Board would be imposing a “substantial increase in
costs” on Verizon by demanding that it commence legal action
against Pennsylvania before seeking a variance. See 380 F.3d
at 1271.
C
On appeal, the Zoning Board argues for the “preserva-
tion of local zoning authority.” Appellant’s Br. 12 (quoting 47
U.S.C. § 332(c)(7)). It cites Pennsylvania, Third Circuit, and
Supreme Court precedent preserving the authority of local gov-
ernments to control land use through zoning, even in the face
of challenges under the TCA. The Zoning Board asserts that
Verizon failed to meet the requirements for a variance under
Pennsylvania law and that the application denial was supported
by substantial evidence.
In the TCA, Congress preserved local zoning authority
only up to a point. A local government’s power over zoning
decisions is preempted by federal statute when its actions “pro-
hibit or have the effect of prohibiting the provision of personal
wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II); see U.S.
Const. art. VI, § 2 (“[T]he Laws of the United States . . . shall
be the supreme Law of the Land.”); Cellular Tel. Co. v. Zoning
Bd. of Adjustment, 197 F.3d 64, 70 (3d Cir. 1999) (“[L]ocal
officials must always ensure that neither their general policies
nor their individual decisions prohibit or have the effect of pro-
hibiting personal wireless services.”). And in this case, the
question is not whether the zoning board properly applied
Pennsylvania law, but whether the Zoning Board’s decision
not at issue.
18
had the “effect of prohibiting the provision of personal wireless
services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). It did.
The Zoning Board cites a Commonwealth Court case,
Fairview Township v. Fairview Township Zoning Hearing
Board, which held that it “cannot be the case” that “insuffi-
ciency in coverage is a hardship entitling the provider to a var-
iance.” 233 A.3d 958, 970 (Pa. Commw. Ct. 2020). This is a
misunderstanding of the preemptive effect of the TCA. Section
332 does not fit within Pennsylvania zoning laws. It displaces
them in certain instances. Local zoning boards can operate to
the full extent of their power when regulating the placement of
cell towers and the like, as long as their actions do not have
“the effect of prohibiting personal wireless services.” Contrary
to Fairview Township’s interpretation, that a local zoning
board decision is based on bona fide local zoning concerns or
is lawful under state law tells us nothing about whether it has
“the effect of prohibiting personal wireless services.” 47
U.S.C. § 332(c)(7)(B)(i)(II).
In light of our decision to adopt the “materially inhibit”
standard, not only does “insufficiency in coverage” ordinarily
entitle a provider to a variance but so does insufficiency in net-
work capacity, 5G services, or new technology. In the TCA,
Congress recognized that “[t]he telecommunications interests
of constitutions are . . . statewide, national and international.”
33 FCC Rcd. at 9110. Local zoning boards, like White Deer
Zoning Board, are prohibited from preventing providers from
meeting those broader interests.
* * *
White Deer Zoning Board effectively prohibited the
provision of personal wireless services when it denied
19
Verizon’s variance application. We will affirm the District
Court.
20