T-Mobile Northeast LLC v. Loudoun County Board of Supervisors , 748 F.3d 185 ( 2014 )

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.
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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