Ninth Circuit Invalidates Denial Of Wireless Permit

The Ninth Circuit Court of Appeals recently decided a case entitled T-Mobile U.S.A. Inc. v. City of Anacortes, that interprets a provision of the federal Telecommunications Act of 1996 (“TCA”) and provides guidance to cities wishing to exercise maximum regulatory control over the siting of wireless towers and facilities.

In this case, T-Mobile submitted a wireless permit application to Anacortes for a wireless tower to fill a “significant gap” in coverage. Anacortes denied the application on the basis that the selected site was not the least intrusive. T-Mobile had presented a detailed analysis of 18 unsuitable alternative sites but, based on a consultant’s report, Anacortes contended there were 6 feasible less intrusive alternatives. T-Mobile disputed that any of those 6 sites were available for its wireless tower.

The issue considered by the Ninth Circuit was whether Anacortes violated Section 332(c)(7)(B) of the TCA by denying T-Mobile’s wireless permit application. Relying on a 2005 precedent, the court reiterated its two-step test for evaluating whether a wireless permit denial violates that statute. The first question is whether the denial is supported by substantial evidence and written findings. The second question is whether the denial actually prohibits or has the effect of prohibiting the provision of personal wireless services. On this point, the court further stated that the burden is on the provider to establish the lack of available and technologically feasible alternatives. Once the provider makes a prima facie showing that a denial would amount to an “effective prohibition” of wireless services - by submitting alternate site analyses in support of its request for a particular site to fill a significant coverage gap as part of its application - the burden then shifts to the city to establish feasible alternative and available sites.

Applying this test, the Ninth Circuit found that there was substantial evidence supporting Anacortes’ denial of T-Mobile’s wireless permit application. The court, however, ultimately concluded that the denial amounted to an effective prohibition in violation of the TCA because Anacortes failed to establish the existence of alternative sites that were feasible and available to T-Mobile.

This case illustrates how critical it is for cities to have an adequate consultant’s report when denying an application for a wireless tower or facility that is needed to fill a significant gap in coverage.

published: July 2009

FOR ADVICE FROM RW&G CONCERNING THE T-MOBILE DECISION OR OTHER TELECOMMUNICATIONS ISSUES, PLEASE CONTACT D. CRAIG FOX, OR ANY OF THE LAWYERS IN THE FIRM’S TELECOMMUNICATIONS PRACTICE GROUP.

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