T-Mobile Northeast LLC v. Fairfax County Board of Supervisors , 672 F.3d 259 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
T-MOBILE NORTHEAST LLC, 
Plaintiff-Appellant,
v.
FAIRFAX COUNTY BOARD OF
SUPERVISORS,
Defendant-Appellee,
and
FAIRFAX COUNTY, VIRGINIA,
Defendant.
FEDERAL COMMUNICATIONS
 No. 11-1060
COMMISSION,
Amicus Curiae,
CITY OF ARLINGTON, TEXAS;
INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; NATIONAL ASSOCIATION
OF COUNTIES; NATIONAL ASSOCIATION
OF TELECOMMUNICATIONS OFFICERS
AND ADVISORS; NATIONAL LEAGUE
OF CITIES; UNITED STATES CONFERENCE
OF MAYORS,
Amici Supporting Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:10-cv-00117-GBL-JFA)
2 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
Argued: October 26, 2011
Decided: March 1, 2012
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the
majority opinion, in which Judge Agee joined. Judge Agee
wrote a separate concurring opinion. Judge Davis wrote a sep-
arate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Thomas Scott Thompson, DAVIS, WRIGHT &
TREMAINE, LLP, Washington, D.C., for Appellant. Eliza-
beth Doyle Teare, COUNTY ATTORNEY’S OFFICE, Fair-
fax, Virginia, for Appellee. ON BRIEF: David P. Bobzien,
County Attorney, COUNTY ATTORNEY’S OFFICE, Fair-
fax, Virginia, for Appellee. Austin C. Schlick, General Coun-
sel, Peter Karanjia, Deputy General Counsel, Richard K.
Welch, Acting Associate General Counsel, James M. Carr,
FEDERAL COMMUNICATIONS COMMISSION, Wash-
ington, D.C., for Federal Communications Commission,
Amicus Curiae. Joseph Van Eaton, James R. Hobson, Mat-
thew K. Schettenhelm, MILLER & VAN EATON, PLLC,
Washington, D.C., for Amici Supporting Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider certain "prohibition" and "dis-
crimination" challenges brought by a wireless telecommuni-
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 3
cations provider against a local governing body under a
provision of the Telecommunications Act of 1996 (the Act).
47 U.S.C. § 332(c)(7)(B)(i). We review the district court’s
holding that the Board of Supervisors of Fairfax County, Vir-
ginia (the Board), did not violate the Act in denying a request
filed by T-Mobile Northeast, LLC (T-Mobile), to construct a
wireless service facility on an existing transmission pole.
The Act bars local governing bodies regulating the place-
ment and modification of personal wireless service facilities:
1) from unreasonably discriminating among similar service
providers; and 2) from prohibiting, or effectively prohibiting,
wireless services. Id. We decide whether the district court
properly applied our standards for resolving prohibition and
discrimination claims brought under this statute. We also con-
sider whether a declaratory ruling issued by the Federal Com-
munications Commission (FCC) in 2009 affects our
established standards. Upon our review, we affirm the district
court’s judgment that the Board’s decision denying T-
Mobile’s request to construct a wireless facility did not vio-
late the Act.
I.
In 2009, T-Mobile, a company providing wireless telecom-
munications services to its customers, filed two related appli-
cations with the Fairfax County Planning Commission
(Planning Commission) and the Board. T-Mobile filed these
applications seeking to increase the height of an existing util-
ity transmission pole (the pole) from 100 feet to 110 feet, and
to attach to the extended portion of the pole a wireless facility
consisting of three panel antennas. These proposed antennas
each would have a height of almost five feet, and a width of
twelve inches, and would be arranged in a cylindrical configu-
ration around the top of the pole. The proposed pole extension
would be grey in color, and the panel antennas would be
painted grey to match the extension.
4 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
The pole is situated on a public right-of-way near an area
zoned for residential use, at the intersection of Colonial Farm
Road, Dolley Madison Boulevard, and Georgetown Pike, an
historic scenic byway. Several residential neighborhoods are
located near the public right-of-way. The Evermay residential
subdivision is the neighborhood most affected by the visual
impact of the pole.
In its application filed under Virginia Code § 15.2-2232, T-
Mobile was required to obtain a determination from the Plan-
ning Commission regarding whether the proposed facility
substantially conformed with Fairfax County’s Comprehen-
sive Plan (the County’s comprehensive plan). T-Mobile also
was required under the Fairfax County Zoning Ordinance (the
Zoning Ordinance) to obtain a special exception from the
Board by showing that the proposed facility would be "har-
monious with and [would] not adversely affect the use . . . of
neighboring properties." Zoning Ordinance § 9-006(3).
At the time T-Mobile filed its applications, both Verizon
Wireless (Verizon) and AT&T Wireless, formerly New
Cingular Wireless, P.C.S., L.L.C. (AT&T), competitors of T-
Mobile, had received permission to place panel antennas on
the pole. In 2004, Verizon was permitted to extend the pole
from its height of 90 feet, to a height of 100 feet, and to attach
12 antennas around the pole. Before Verizon’s application
ultimately was approved, that application was opposed by the
residents of the Evermay community due to the increased
height of the pole.
In 2006, the Planning Commission permitted AT&T to
install nine panel antennas below Verizon’s antennas on the
pole. Residents of the Evermay community did not object to
the placement of these antennas on the pole and, based on the
specifications of AT&T’s proposed facility, AT&T’s applica-
tion did not require a public hearing.
T-Mobile’s applications contained a statement asserting
that the area along the George Washington Parkway, George-
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 5
town Pike, and Dolley Madison Boulevard in Fairfax County
did not have adequate service from T-Mobile due to the
absence of a nearby wireless T-Mobile facility. T-Mobile also
represented that its objective in constructing the proposed
facility was to "solidify in-vehicle coverage" along the roads
previously mentioned, and to "eliminate the in-building cov-
erage gap in the surrounding neighborhoods." T-Mobile
explained that it had considered, but "ruled out," alternative
sites for its proposed facility.
In September 2009, the Planning Commission staff issued
a report recommending that the Planning Commission find
that T-Mobile’s proposed facility satisfied the criteria of loca-
tion, character, and extent, as specified in Virginia Code
§ 15.2-2232, and that the proposed facility was in accord with
the County’s comprehensive plan. In November 2009, the
Planning Commission held a public hearing on the matter.
After that hearing, the Planning Commission denied T-
Mobile’s application on the grounds that the visual impact of
the proposed facility would be "significant and adverse," and
that the location, character, and extent of the proposed facility
was not substantially in accord with the County’s comprehen-
sive plan. The Commission also recommended that the Board
deny T-Mobile’s application for a special exception.
T-Mobile filed an appeal to the Board, which held hearings
to consider both T-Mobile’s application and its request for a
special exception. At the hearing before the Board, a repre-
sentative from the Evermay community expressed the com-
munity’s strong opposition to the proposed extension of the
pole, citing the increased visibility of the higher pole and the
alleged adverse impact that the altered pole would have on the
residents’ use and enjoyment of their properties. The Board
also considered presentations from Planning Commission
staff members and from representatives of T-Mobile.
The Board determined that T-Mobile’s proposed facility
was not in conformance with the County’s comprehensive
6 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
plan, and failed to comply with the Zoning Ordinance’s man-
datory standards for approval of special exceptions. Accord-
ingly, the Board denied T-Mobile’s application and request
for a special exception.
T-Mobile filed a complaint in the district court against the
Board,1 as permitted by 47 U.S.C. § 332(c)(7)(B)(v).2 In its
complaint, T-Mobile asserted that the Board’s denials violated
certain provisions of the Act, which place limitations on a
local governing body’s decisional authority regarding the
placement and modification of personal wireless service facil-
ities. 47 U.S.C. § 332(c)(7)(B). After T-Mobile and the Board
filed cross-motions for summary judgment, the district court
granted summary judgment in favor of the Board, and T-
Mobile timely filed the present appeal.
II.
In 1996, the Act was signed into law. Section 704(c)(7) of
the Act, entitled "Preservation of local zoning authority," is
codified in 47 U.S.C. § 332(c)(7). Pub. L. No. 104-104, 110
Stat. 56 (1996). That section includes two parts that are rele-
vant to this appeal. Part (A), entitled "General authority,"
states that
[e]xcept as provided in this paragraph, nothing in
this Act shall limit or affect the authority of a State
or local government or instrumentality thereof over
decisions regarding the placement, construction, and
modification of personal wireless service facilities.
1
T-Mobile also named Fairfax County as a defendant, but the district
court granted the County’s motion to dismiss. T-Mobile does not chal-
lenge that ruling on appeal.
2
The provision authorizing T-Mobile’s suit, 47 U.S.C.
§ 332(c)(7)(B)(v), provides that any person adversely affected by a final
action by a local governing body that is inconsistent with 47 U.S.C.
§ 332(c)(7)(B) may, within 30 days, commence an action in any court of
competent jurisdiction.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 7
47 U.S.C. § 332(c)(7)(A). Part (B) of this same section
imposes limitations on this general authority. 47 U.S.C.
§ 332(c)(7)(B). Two of the enumerated limitations in part (B)
are at issue in this appeal.3 Those provisions state:
(i) The regulation of the placement, construction,
and modification of personal wireless service facili-
ties by any State or local government instrumentality
thereof –
(I) shall not unreasonably discriminate
among providers of functionally
equivalent services; and
(II) shall not prohibit or have the effect
of prohibiting the provision of per-
sonal wireless services.
47 U.S.C. § 332(c)(7)(B).
We previously have explained that § 332(c)(7) of the Act
reflects the balance between the national interest of facilitat-
ing the growth of telecommunications and the interest of local
governments in making decisions based on zoning consider-
ations. 360° Communications Co. of Charlottesville v. Bd. of
Supervisors of Albemarle County, 211 F.3d 79, 86 (4th Cir.
2000) (Albemarle County). The protection of this balance has
been a primary concern in our development of standards to
address claims brought under § 332(c)(7).
3
Another statutory limitation on a local governing body’s authority was
raised in T-Mobile’s complaint filed in the district court. T-Mobile
asserted that the Board’s decision denying T-Mobile’s applications was
not supported by substantial evidence, in violation of 47 U.S.C.
§ 332(c)(7)(B)(iii). The district court granted summary judgment in favor
of the Board on this claim, and T-Mobile does not challenge that ruling
on appeal.
8 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
III.
We review the district court’s award of summary judgment
de novo. S.C. Green Party v. S.C. State Election Comm’n, 612
F.3d 752, 755 (4th Cir. 2010). Under Rule 56(a) of the Fed-
eral Rules of Civil Procedure, summary judgment is appropri-
ate "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."
On appeal, T-Mobile argues that the district court erred in
concluding that: 1) the Board’s denial of T-Mobile’s applica-
tions did not effectively prohibit personal wireless services
under 42 U.S.C. § 332(c)(7)(B)(i)(II) (hereafter, subsection
(B)(i)(II)); and 2) the Board did not unreasonably discriminate
against T-Mobile under 42 U.S.C. § 332(c)(7)(B)(i)(I) (here-
after, subsection (B)(i)(I)). We will address each of these
arguments in turn.
A.
1.
We first consider T-Mobile’s claim that the Board’s denial
of T-Mobile’s applications effectively prohibited T-Mobile
from providing wireless service to the nearby area in violation
of subsection (B)(i)(II). Before we reach the merits of this
claim, however, we begin by addressing T-Mobile’s argu-
ments regarding our standard for reviewing claims raised
under subsection (B)(i)(II).
T-Mobile contends that in our prior decisions, we have held
that subsection (B)(i)(II) is violated only by a "blanket ban"
on wireless deployment, with the result that individual zoning
decisions may never constitute a prohibition of wireless ser-
vices under the Act. According to T-Mobile, in 2009, the FCC
rejected such a "blanket ban" approach as being inconsistent
with the language and the purpose of the Act. See In re Peti-
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 9
tion for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B), 24 FCC Rcd. 13994 (F.C.C. 2009) (In re Peti-
tion). T-Mobile contends that the FCC’s ruling is entitled to
deference, and that under that ruling, we are required to adopt
a new standard for the review of prohibition claims brought
under (B)(i)(II). We disagree with T-Mobile’s arguments.
Our previous opinions addressing subsection (B)(i)(II) have
established certain principles, which guide the review of chal-
lenges brought under that subsection. In our decision in AT&T
Wireless PCS, Inc. v. City Council of Virginia Beach, 155
F.3d 423 (4th Cir. 1998) (Virginia Beach), we considered a
local governing body’s denial of an application submitted
jointly by four telecommunication companies, which sought
approval to construct two communications towers in a resi-
dential area. Id. at 424. There, the district court concluded that
the local governing body had not effectively prohibited per-
sonal wireless service, within the meaning of subsection
(B)(i)(II), because that subsection only applied to "blanket
prohibitions" or "general bans or policies" against the provi-
sion of wireless services. Id. at 428.
We disagreed with the district court’s narrow interpretation
of (B)(i)(II), and explained that policies essentially guarantee-
ing the rejection of all wireless facility applications, as well
as explicit policies or bans against the granting of such appli-
cations, would constitute an unlawful prohibition of personal
wireless services in violation of subsection (B)(i)(II). Virginia
Beach, 155 F.3d at 429. However, based on the record in that
case, we ultimately affirmed the district court’s judgment that
the local governing body had not violated subsection
(B)(i)(II).
Two years later, we addressed the question whether a single
denial of a site permit could ever violate subsection (B)(i)(II).
Albemarle County, 211 F.3d at 86. While acknowledging that
generally a single denial of a permit for a particular site will
not be construed as a prohibition of wireless services, we
10 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
explained that the circumstances surrounding the denial of a
single application, or the circumstances surrounding the pro-
cedure for processing that application, could amount to a pro-
hibition of wireless services. Id. at 86.
Even though the most obvious violation of (B)(i)(II) would
involve a "blanket ban" on wireless service, we have
instructed reviewing courts to consider, on a case-by-case
basis, the facts surrounding a local governing body’s denial of
an application. Id. at 87. We therefore disagree with T-
Mobile’s attempt to characterize our precedent as holding that
subsection (B)(i)(II) may be violated only by a "blanket ban"
on wireless deployment.
Under our precedent, a plaintiff can prevail in asserting a
violation of subsection (B)(i)(II) by showing that a local gov-
erning body has a general policy that essentially guarantees
rejection of all wireless facility applications. Albemarle
County, 211 F.3d at 86; Virginia Beach, 155 F.3d at 429.
Alternatively, a plaintiff can prevail by demonstrating that the
denial of an application for one particular site is "tantamount"
to a general prohibition of service. Albemarle County, 211
F.3d at 87-88. In asserting a claim under this alternative the-
ory, a plaintiff may prevail upon showing both an effective
absence of coverage, and a lack of reasonable alternative sites
to provide coverage. See id. at 87-88.
With regard to the requirement that a plaintiff demonstrate
the absence of reasonable alternatives, we specifically
rejected the standard adopted by other circuits permitting a
plaintiff to establish merely that its proposed facility consti-
tutes "the least intrusive means to close a significant gap in
service." Albemarle County, 211 F.3d at 87 (citing APT Pitts-
burg Ltd. P’ship v. Penn Twp., 196 F.3d 469, 480 (3d Cir.
1999); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643
(2d Cir. 1999)); see also MetroPCS, Inc. v. City and County
of San Francisco, 400 F.3d 715 (9th Cir. 2005) (adopting
least intrusive means test after our decision in Albemarle
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 11
County). We explained that the "least intrusive means" stan-
dard "unduly limit[s] what is essentially a fact-bound
inquiry," and that a local governing body rationally could "re-
ject the least intrusive proposal in favor of a more intrusive
proposal that provides better service." Id. We also explained
that such a standard improperly would create a presumption
favoring the wireless industry over the interests of the local
community, shifting the burden of production to the local
governing body. Id.We further explained that the application of any specific
formula, such as the above formula adopted by some of our
sister circuits, ultimately would require a broader inquiry
whether the denial of a permit for a particular site had the
effect of prohibiting wireless services, within the meaning of
subsection (B)(i)(II). Id. Thus, we concluded that reviewing
courts should not be constrained by any specific formulation,
but should conduct a fact-based analysis of the record, as con-
templated by the Act, in determining whether a local govern-
ing body violated subsection (B)(i)(II). Id.Within these boundaries set by our precedent, a plaintiff in
this Circuit thus may prove a violation of subsection (B)(i)(II)
based on a single denial of a site application, and not merely
by demonstrating a "blanket ban" on wireless deployment.
With this discussion in mind, we turn to consider T-Mobile’s
argument that our precedent has been affected by a declara-
tory ruling issued by the FCC in 2009.
In its narrow ruling, the FCC concluded that when a site
application is denied based on a finding that another provider
already offers service in the area, such denial violates subsec-
tion (B)(i)(II). In re Petition, 24 FCC Rcd. at 14017 ¶ 58. The
present case, however, is not affected by the FCC’s decision,
because T-Mobile does not allege that the Board’s decision
was based on a finding that the area to be served by T-
Mobile’s proposed facility also was served by another pro-
vider.
12 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
Moreover, we observe that the language in the FCC’s rul-
ing supports our construction of subsection (B)(i)(II). The
FCC stated that when "a bona fide local zoning concern,
rather than the mere presence of other carriers, drives a zon-
ing decision, it should be unaffected by our ruling today." Id.at 14018 ¶ 62. Thus, the FCC specifically emphasized that a
local governing body’s "authority to base zoning regulation
on other grounds is left intact by this ruling." Id. at 14017 ¶
60.
The FCC’s ruling cited only one case from this Circuit, our
decision in Virginia Beach. In re Petition, 24 FCC Rcd. at
14017 ¶ 60. The FCC’s citation to this case was limited to
explaining the FCC’s position that its ruling would not strip
a local governing body’s authority of its zoning rights, a con-
cern we expressed in Virginia Beach. Id. Thus, we conclude
that our precedent regarding the interpretation of subsection
(B)(i)(II), as detailed in our decision in Albemarle County, is
unaffected by the FCC’s ruling. Accordingly, we decline to
depart from that precedent and reject T-Mobile’s proposal that
we adopt a "least intrusive means" test, or any other specific
test, for the review of claims raised under subsection
(B)(i)(II).
2.
Within this legal framework, we consider the record before
us to determine whether the Board’s decision effectively pro-
hibited personal wireless service, within the meaning of sec-
tion (B)(i)(II). In asserting that the Board violated subsection
(B)(i)(II), T-Mobile contends that it has shown a legally cog-
nizable absence in coverage in the area surrounding the pro-
posed facility and that, without the proposed facility, T-
Mobile will remain unable to provide sufficient, reliable in-
vehicle and in-building coverage in the area at issue.
T-Mobile also contends that it has investigated numerous
alternative sites for its facility but that those sites were techni-
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 13
cally infeasible, practically unavailable, or inconsistent with
the County’s comprehensive plan.4 Thus, T-Mobile contends
that the Board’s denial of its applications effectively prohib-
ited the provision of wireless services. We disagree with T-
Mobile’s arguments.
Initially, we emphasize that a plaintiff’s burden to prove a
violation of subsection (B)(i)(II) is substantial and is particu-
larly heavy when, as in this case, the plaintiff already provides
some level of wireless service to the area. Albemarle County,
211 F.3d at 87-88. This substantial burden is consistent with
the plain language of subsection (B)(i)(II), which is violated
only when a local governing body’s decision prohibits or has
the effect of prohibiting personal wireless services. See Albe-
marle County, 211 F.3d at 88 n.1. Importantly, the language
of this subsection does not encompass the ordinary situation
in which a local governing body’s decision merely limits the
level of wireless services available because, as we have
explained, the Act cannot guarantee 100 percent coverage. Id.
As discussed above, a plaintiff must meet one of two stan-
dards to prevail under subsection (B)(i)(II). The plaintiff must
establish: 1) that a local governing body has a general policy
that effectively guarantees the rejection of all wireless facility
applications, Albemarle County, 211 F.3d at 87; Virginia
Beach, 155 F.3d at 429; or 2) that the denial of an application
for one particular site is "tantamount" to a general prohibition
of service, Albemarle County, 211 F.3d at 87-88.
In asserting a claim under this second theory, as T-Mobile
does here, a plaintiff must show a legally cognizable deficit
in coverage amounting to an effective absence of coverage,
4
T-Mobile also asserts that the proposed facility was the "least intru-
sive" alternative to providing adequate coverage. However, as explained
above in section III(A)(1), this Court has rejected the "least intrusive
means" analysis. See Albemarle County, 211 F.3d at 87. Therefore, we do
not consider T-Mobile’s argument on this issue.
14 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
and that it lacks reasonable alternative sites to provide cover-
age. See id. at 87-88. We also have stated that the plaintiff
should be able to demonstrate that further reasonable efforts
to gain approval for alternative facilities would be "fruitless."
See USCOC of Virginia RSA#3, Inc. v. Montgomery Cnty. Bd.
of Supervisors, 343 F.3d 262, 269 (4th Cir. 2003); Albemarle
County, 211 F.3d at 88.
In Albemarle County, as in this case, the wireless provider
and the local governing body filed cross-motions for summary
judgment. 211 F.3d at 83. We reversed the district court’s
decision granting the provider’s motion on its prohibition
claim, concluding that the provider failed to meet its heavy
burden under section (B)(i)(II). We explained that the record
was unclear regarding whether there was an absence of ser-
vice in a particular part of the county. Id. at 87-88. We further
stated that, even assuming the existence of cognizable gaps in
coverage, the record contained insufficient evidence to estab-
lish whether there were alternative locations available for the
proposed wireless facilities. Id. at 88.
Additionally, we observed that the record showed that the
local governing body had approved numerous applications for
other wireless facilities, including several filed by the pro-
vider asserting a violation of the Act. Id. Thus, we concluded
that the provider failed to meet its heavy burden to show that
the denial of its permit for a particular site amounted to a gen-
eral prohibition of service. Id.
In our view, like the provider in Albemarle County, T-
Mobile has failed to carry its heavy burden in this case. Even
if we assume, without deciding, that T-Mobile established a
gap in coverage sufficient to make a claim under subsection
(B)(i)(II), we conclude that on this record T-Mobile failed to
show that it lacks reasonable alternatives to provide service in
the area at issue, and failed to show that further attempts to
gain the Board’s approval would be futile.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 15
T-Mobile’s evidence of alternative sites submitted to the
district court included several declarations, along with some
exhibits, completed by persons who explored alternative loca-
tions or assisted in doing so. In our view, the content of those
declarations presents very general conclusions regarding the
feasibility of alternative locations, including repeated asser-
tions that the locations "would not close the significant gap in
T-Mobile’s coverage" and "would not allow T-Mobile to meet
its coverage objectives." T-Mobile cannot meet its burden of
proving that the Board’s denial was "tantamount" to a general
effective prohibition on services by showing merely that the
alternative sites would not close the entire deficiency in cov-
erage, or would not provide the same level of service as the
proposed facility.
With regard to T-Mobile’s assertion that the alternative
locations were unavailable as a practical matter, we agree
with the district court’s conclusion that T-Mobile inade-
quately addressed the viability of one particular alternative
site in Langley Fork Park (the park). The record before us
contains a statement made by a National Park Service repre-
sentative indicating that the park "would be open to receiv-
ing" a proposal for the construction of a pole, similar to others
that had been approved at area parks in the past. Even though
the park’s policy prohibits the placement of poles in the park
until other alternatives are eliminated, the difficulties pre-
sented in meeting such restrictions are insufficient to establish
that a provider lacks reasonable alternatives for the provision
of its services.
We also agree with the district court’s conclusion regarding
T-Mobile’s argument that the alternate locations discussed
were inconsistent with the County’s comprehensive plan.
Under its heavy burden, it is inadequate for T-Mobile to assert
simply that the County’s comprehensive plan states a prefer-
ence for collocating wireless facilities on existing poles,
rather than for constructing entirely new facilities. The Coun-
ty’s stated preference for one type of facility is insufficient to
16 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
show that other types of alternative facilities are not reason-
ably available in a particular case.
Finally, we observe that T-Mobile has failed to present evi-
dence that future attempts to gain approval for wireless facili-
ties to enhance its coverage would be fruitless. To the
contrary, the record demonstrates that the Board has a strong
history of approving wireless facilities, including applications
for wireless facilities submitted by T-Mobile.
Accordingly, based on the record before us, we conclude
that T-Mobile has failed to meet its heavy burden to show that
the Board’s denial of the applications for a single wireless
facility amounted to a general effective prohibition on wire-
less service, in violation of subsection (B)(i)(II). Therefore,
we hold that the district court did not err in granting summary
judgment to the Board on this claim.
B.
We next consider whether the Board unreasonably discrim-
inated against T-Mobile by denying its applications, in viola-
tion of subsection (B)(i)(I). T-Mobile bases its contention of
unreasonable discrimination on the fact that the Board previ-
ously permitted both Verizon and AT&T, two companies
offering the same or similar services as T-Mobile, to construct
expanded facilities on the pole. Before addressing the merits
of this argument, we review the standard applicable to our
consideration of a claim alleging a violation of subsection
(B)(i)(I).
T-Mobile contends that the district court, in determining
that the record failed to show that the Board unreasonably dis-
criminated against T-Mobile, incorrectly interpreted our deci-
sion in Virginia Beach, the only case in which we have
addressed subsection (B)(i)(I). According to T-Mobile, we
failed to adopt a standard in Virginia Beach for considering
claims raised under subsection (B)(i)(I). T-Mobile urges us to
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 17
employ a test used in other circuits, namely, whether the peti-
tioning provider and other providers are "functionally equiva-
lent," and whether the petitioning provider’s proposed facility
and the other facilities are "similarly situated." See Ogden
Fire Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 392
(3d Cir. 2007); MetroPCS, 400 F.3d at 728. We decline T-
Mobile’s invitation and disagree with its characterization of
our precedent.
We begin by reviewing our discussion in Virginia Beach
addressing subsection (B)(i)(I). As stated above, in that case,
the local governing body had denied an application submitted
jointly by four telecommunication companies to construct two
towers in a residential area. Id., 155 F.3d at 424. Although the
district court concluded that the local governing body unrea-
sonably discriminated against the applicants, we reversed the
district court’s decision. Id.In their appeal to this Court, the parties in Virginia Beach
presented opposing views regarding the proper interpretation
of subsection (B)(i)(I). Id. at 426-27. After considering the
parties’ arguments, we declined to adopt a fixed test for deter-
mining unreasonable discrimination under subsection
(B)(i)(I), and instead focused our review on the facts and cir-
cumstances surrounding the local governing body’s decision.
Id. at 427.
We explained that because the application at issue was sub-
mitted by four different telecommunication providers, each of
which offered varying types of services, the local governing
body plainly had not discriminated against any particular pro-
vider or type of service. Id. We emphasized that only unrea-
sonable discrimination was prohibited under the statute, and
stated that even if the local governing body had discriminated
against the applicants, such discrimination was not unreason-
able. Id.We based our conclusion on the fact that the local govern-
ing body’s decision rested on traditional zoning principles,
18 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
including the preservation of neighborhood character and the
avoidance of aesthetic blight, and on the absence of evidence
that the local governing body intended to favor one company
or form of service over another. Id. We explained that if this
action by the local governing body were held unreasonable,
then almost every denial of an application necessarily would
violate subsection (B)(i)(I). Id.In support of this conclusion, we cited a House of Repre-
sentatives Conference Report, in which the conferees
expressed their intent that subsection (B)(i)(I) provide "locali-
ties with the flexibility to treat facilities that create different
visual, aesthetic, or safety concerns differently to the extent
permitted under generally applicable zoning requirements
even if those facilities provide functionally equivalent ser-
vices." Virginia Beach, 155 F.3d at 427 n.3 (quoting H.R.
Rep. No. 104-458, at 208 (1996) (Conf. Rep.)). We also
described the evidence in the record supporting the local gov-
erning body’s decision, noting both the significant opposition
voiced by community members based on aesthetic concerns,
and the lack of evidence suggesting "ill will" toward the
applicants or their services. Id. at 427-28.
While T-Mobile is correct that our decision in Virginia
Beach did not adopt a specific test for the review of unreason-
able discrimination claims, we nevertheless established a
framework for analyzing such claims. Under this framework,
we carefully considered the language of subsection (B)(i)(I)
and the evidence supporting the local governing body’s deci-
sion. We concluded that the local governing body had not
unreasonably discriminated against the applicants for several
reasons, including that the local governing body’s decision
was based on legitimate concerns involving traditional zoning
principles.
In the present case, the district court properly applied the
same type of fact-based analysis that we employed in Virginia
Beach. We likewise employ this type of analysis here, and
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 19
decline T-Mobile’s request that we use a different methodol-
ogy for the review of unreasonable discrimination claims. We
therefore turn to consider whether the present record supports
T-Mobile’s argument that the district court erred in determin-
ing that the Board’s decision did not violate subsection
(B)(i)(I).
The record contains extensive evidence that the residents’
opposition to T-Mobile’s proposal was based on the tradi-
tional zoning principle of aesthetic impact. The record shows
that the 10-foot extension of the pole would materially alter
the visual impact of the pole for nearby residents. The results
of a "visibility test" conducted by the Planning Commission
staff demonstrated that T-Mobile’s proposed facility in this
residential area would be taller than any other transmission
pole in the vicinity. Additionally, the visual impact of the
extended pole would be greater than simply its increased
height, because the antennas to be affixed to the top of the
extended pole would add a component cylindrical in shape
that also could be seen by the nearby residents.
Contrary to T-Mobile’s contention, the record does not
show that T-Mobile’s proposed facility is essentially the same
as, or less invasive than, previously-approved facilities
erected by AT&T and Verizon. As noted by the district court,
AT&T’s facility did not increase the height of the pole and
was not opposed by members of the surrounding community.
And, while Verizon earlier had obtained an extension of the
pole from 90 feet to the pole’s current height of 100 feet, this
fact did not render the Board’s denial of T-Mobile’s proposed
additional ten-foot extension unreasonably discriminatory per
se.
As recognized in the Conference Report cited in our deci-
sion in Virginia Beach, subsection (B)(i)(I) provides a local
governing body with the flexibility to treat a proposed facility
differently than another facility when there is a difference in
the visual impact or aesthetic character of the individual facil-
20 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
ities. See Virginia Beach, 155 F.3d at 427 n.3 (citing H.R.
Rep. No. 104-458, at 208 (1996)(Conf. Rep.)). Here, as we
have noted, there was evidence of a difference in the visual
impact of T-Mobile’s proposed facility, because the aesthetic
impact of the pole’s increased height was compounded by the
cylindrical configuration to be placed near the top of the pole
extension.
Additionally, as the district court observed, T-Mobile was
required to obtain a special exception from the Board at the
time T-Mobile filed its application, while the earlier applica-
tions filed by Verizon and AT&T were not subject to this
more rigorous and attenuated procedure. To obtain a special
exception, T-Mobile was required to demonstrate to the Board
that its proposed facility would be "harmonious with and
[would] not adversely affect the use . . . of neighboring prop-
erties." Zoning Ordinance § 9-006(3). Thus, this heightened
standard to which T-Mobile was held further distinguishes T-
Mobile’s applications from those of Verizon and AT&T, and
demonstrates that the Board did not unreasonably discrimi-
nate against T-Mobile.
T-Mobile argues, nevertheless, that the Board’s implemen-
tation of this special exception requirement shows that the
Board unreasonably discriminated against T-Mobile. How-
ever, because T-Mobile did not raise this argument before the
district court, we decline to consider the argument here in
reviewing the district court’s decision under subsection
(B)(i)(I). See Skipper v. French, 130 F.3d 603, 610 (4th Cir.
1997).
The record thus shows that the Board’s denial of T-
Mobile’s applications was based on legitimate, traditional
zoning principles, and that the facilities earlier approved for
Verizon and AT&T can be distinguished on several grounds.
Accordingly, we affirm the district court’s determination that
the Board did not unreasonably discriminate against T-
Mobile, and was entitled to summary judgment on that claim.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 21
IV.
For the reasons stated, we hold that the district court did not
err in concluding that T-Mobile failed to establish that the
Board effectively prohibited personal wireless services, as
proscribed by subsection (B)(i)(II), or unreasonably discrimi-
nated against T-Mobile, as proscribed by subsection (B)(i)(I).
Therefore, we affirm the district court’s holding granting
summary judgment in favor of the Board.
AFFIRMED
AGEE, Circuit Judge, concurring:
I join in Judge Keenan’s fine opinion in its entirety. I write
separately to briefly emphasize the "substantial burden" that
a plaintiff bears in seeking to show a violation of 42 U.S.C.
§ 332(c)(7)(B)(i)(II) (the so-called "prohibition clause"), 360°
Communications Co. of Charlottesville v. Bd. of Supervisors
of Albemarle Cnty., 211 F.3d 79, 87-88 (4th Cir. 2000) (Albe-
marle County), and address what I believe to be a flaw in the
dissenting opinion.
As the majority opinion correctly states, our cases recog-
nize that a plaintiff can show an effective prohibition in two
circumstances: by showing that a locality has a general policy
rejecting any siting of wireless facilities, AT&T Wireless PCS,
Inc v. City Council of City of Virginia Beach, 155 F.3d 423,
428 (4th Cir. 1998), or by showing that the denial of an appli-
cation for one particular site is "tantamount" to a general pro-
hibition of services, Albemarle County, 211 F.3d at 87-88.
Maj. Op. at 10. However, our precedents emphasize the diffi-
culty that a plaintiff faces in seeking relief on an effective
prohibition claim under the latter approach.
Two cases in particular illustrate this heavy burden. In
Albemarle County, we rejected outright the possibility that,
without more, "case-by-case denials of permits for particular
22 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
sites" could be considered an effective prohibition. 211 F.3d
at 86. In USCOC of Virginia RSA#3, Inc. v. Montgomery
County Board of Supervisors, 343 F.3d 262, 268 (4th Cir.
2003), we allowed the possibility that a plaintiff could suc-
ceed on an effective prohibition claim based on the denial of
a single application "if the [wireless] service could only be
provided from a particular site," but we expressly stated that
such an approach was "theoretical" and "unlikely in the real
world."*
The law of our Circuit is clear that an effective prohibition
claim based on the denial of a single siting application is
highly unlikely to succeed in light of the considerable defer-
ence that the statute affords to localities in the making of indi-
vidual zoning decisions. The majority opinion does not alter
that standard.
The dissenting opinion misreads our precedents to conflate
"significant gap" with "effective absence of coverage" Dis-
senting Op. at 28. The Fourth Circuit has not adopted "a sig-
nificant gap" as some sort of independent test under
§ 332(c)(7)(B)(i)(II). To the contrary, we expressly rejected
that notion in Albemarle County. There, despite being urged
to adopt an approach under which "the denial of a permit for
a site that is ‘the least intrusive means to close a significant
gap in service’ would amount to a denial of wireless services
in violation of [the statute]," we concluded to the contrary,
separately identifying the term "significant gap" as one we did
not adopt. Id.
[D]eterminations about what constitutes the "least
intrusive means" and "a significant gap" in services,
would . . . quickly devolve into the broader inquiry
*T-Mobile conceded at oral argument that, under our existing prece-
dent, it could not succeed on its effective prohibition claim. I see no rea-
son to bend over backward to grant relief to a litigant that has
acknowledged it is not entitled to it under circuit precedent.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 23
indicated by the language of the statute: "Does the
denial of a permit for a particular site have the effect
of prohibition wireless services.?" We believe that
this statutory question requires no additional formu-
lation and can best be answered through the case-by-
case analysis that the Act anticipates.
Id. (emphasis added) (citation omitted). We then stated that
even assuming a plaintiff could show the existence of poor
service, it would still bear "the ‘heavy burden’ of demonstrat-
ing that denial of its application for one particular site is tanta-
mount to a prohibition in service."
Because I believe that the majority opinion applies the cor-
rect standard for an effective prohibition claim as articulated
in Albemarle County, I am pleased to join it.
DAVIS, Circuit Judge, concurring in part and dissenting in
part:
The majority cogently explains the two circumstances in
which a local government’s denial of a wireless facility appli-
cation "ha[s] the effect of prohibiting the provision of per-
sonal wireless services" in violation of 47 U.S.C.
§ 332(c)(7)(B)(i)(II): (1) where it has imposed a "‘blanket
ban’ on wireless service," such as a "general policy that
essentially guarantees rejection of all wireless facility applica-
tions"; or (2) where there is an "effective absence of cover-
age" and "a lack of reasonable alternative sites to provide
coverage." Maj. Op. at 10. I agree that this statement is con-
sistent with our precedents. I also agree that this case presents
the second type of claim; T-Mobile does not allege either a
blanket ban on wireless service or a general policy essentially
guaranteeing rejection of all wireless facility applications.
Contrary to the majority’s conclusion, however, I am
unable to conclude there is no genuine dispute that T-Mobile
has failed to meet its burden on its effective-prohibition claim.
24 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
A reasonable fact-finder, I believe, could conclude that T-
Mobile has an "effective absence of coverage" in its wireless
coverage in the vicinity of the intersection of Dolley Madison
Boulevard and Georgetown Pike, and that there are no "rea-
sonable alternative sites" to fill that gap. Thus, we should
reverse and remand for further proceedings on T-Mobile’s
effective-prohibition claim.1
I.
The wireless signal generated by a particular wireless facil-
ity (i.e., a wireless antenna or group of antennas) is strongest
near the facility and fades at increasing distances from it, at
rates that depend on various factors: the height of the facility,
the strength and frequency of the signal emitted by the facil-
ity, the surrounding geography, the density of structures in the
area, and the number of customers in the vicinity, among
other factors. The strength of a wireless provider’s coverage
in a particular location is measured in negative dBm (decibels
relative to one milliwatt). A more negative value (i.e., higher
absolute value) represents a weaker signal; a value closer to
zero represents a stronger signal. According to T-Mobile’s
"design criteria," in order to provide "reliable in-building cov-
erage" to its customers at a particular location, the signal
received at that location must be at least -76 dBm. Only at
that level, T-Mobile has determined, can it provide "sufficient
system capacity and high speed data rates" to provide reliable
in-building service. J.A. 548. Reliable "in-vehicle coverage"
does not require quite as strong a signal, but still requires one
measuring -84 dBm.
In the district court, T-Mobile submitted maps that show
the strength of its coverage in the area in question. Most are
1
Although I dissent from the majority’s disposition of the effective-
prohibition claim, I concur in its affirmance of the district court’s grant of
summary judgment to the Board on T-Mobile’s unreasonable-
discrimination claim.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 25
radio frequency ("RF") propagation maps, which are gener-
ated by a computer model that takes into account the factors
that affect signal strength and show the various signal
strengths that "can be expected" over the area. J.A. 549. Areas
that receive RF signals strong enough to support reliable in-
building coverage (-76 dBm or stronger) are displayed in
green; areas with signals too weak for in-building coverage,
but strong enough for in-vehicle coverage (between -84 dBm
and -76 dBm), are displayed in blue; areas with signals too
weak even for reliable in-vehicle coverage (weaker than -84
dBm) but sufficient for "on street" coverage are displayed in
yellow. These maps show that T-Mobile’s current coverage is
insufficient to provide reliable in-building service in a portion
of the area near the intersection of Dolley Madison Boulevard
and Georgetown Pike. In some areas T-Mobile’s customers
do not even receive coverage strong enough to maintain a reli-
able connection from inside a vehicle. These data are corrobo-
rated by a map showing "drive test data," i.e., measurements
of actual signal strength in hundreds of locations along roads
in the area. The drive-test maps show miles of roads where T-
Mobile’s engineers were unable to detect a signal stronger
than -84 dBm.2
2
The Board contested the admissibility of all of these maps on several
grounds, including that T-Mobile did not disclose its experts, whose decla-
rations included the maps as attachments, early enough for the Board to
conduct discovery regarding those witnesses to the extent they were serv-
ing as expert witnesses. The district court never ruled on the Board’s
objections to the admissibility of the declarations because it was applying
a test under which any detectable RF signal would defeat a wireless pro-
vider’s effective-prohibition claim; under that standard, the declarations
and maps would have been irrelevant. As the majority holds and I agree,
this was error, because in this circuit, we do inquire into whether there is
an "effective absence of coverage." Because the district court’s basis for
declining to rule on their admissibility was erroneous, for purposes of this
opinion, I assume the maps are properly in evidence. If we were to vacate
and remand this action, as I believe we must, the district court would then
be in position to exercise its discretion to decide whether the maps should
be excluded from evidence based on the timing of T-Mobile’s expert dis-
closures.
26 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
To remedy this inability to provide reliable in-building and
in-vehicle service to its customers living in and travelling
through the area, T-Mobile decided to invest in a new wire-
less facility, and began investigating possible sites. One of the
potential sites was the one at issue here: a ten-foot extension
of a power transmission pole belonging to Dominion Virginia
Power ("the Pole"), where two of T-Mobile’s competitors
already had wireless facilities. A facility on the extended
Pole, at a height of 108 feet, would provide reliable coverage
to much more of the area than existing facilities provide, and,
in T-Mobile’s view, was consistent with Fairfax County’s
Comprehensive Plan, which encourages "collocation" of facil-
ities operated by different service providers and discourages
the construction of new structures.
In addition to the Pole, T-Mobile investigated more than a
dozen potential alternative locations, including several identi-
fied by the County. The first set of alternatives consists of
locations the Board does not dispute were not reasonably
available. These include the Immanuel Presbyterian Church,
which was not interested in leasing its property for a telecom-
munications facility; power transmission poles belonging to
Dominion on the grounds of the Potomac School, which was
not interested in leasing space below the poles for equipment
the facilities would have required; and seven other poles
belonging to Dominion, which was unwilling to lease space
on those poles because there would be insufficient space for
equipment and/or access to the equipment.
Similarly, a nearby park, Clemyjontri Park, was not avail-
able because its donation to Fairfax County had been condi-
tioned on its use exclusively for park-related purposes. Two
other parks, the Claude Moore Colonial Farm and Turkey Run
Park, were too far north; a facility there would not fill the
southern portion of the gap in reliable service. At the Coun-
ty’s request, T-Mobile also sought permission from the Cen-
tral Intelligence Agency to install a facility within the CIA
grounds; that request was denied for security-related reasons.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 27
Two other alternatives to the 108-foot-high facility were to
install (1) a 45-foot facility on the Pole, below the facilities
belonging to Verizon and AT&T, or (2) a distributed antenna
system ("DAS"), which consists of a network of smaller
antennas at several locations rather than an installation on the
Pole. T-Mobile considered these alternatives and generated
RF propagation maps to determine the extent to which they
would fill the gap. As those maps show and the Board does
not dispute, although each of those alternatives would some-
what improve in-building and in-vehicle coverage, they would
do so to a much lesser extent than would a 108-foot-high
facility; a substantial portion of the areas currently without
reliable in-building service would remain so. Moreover, a
DAS would not work because, at least according to T-
Mobile’s Zoning Manager, there were not enough existing
structures in the area on which DAS equipment could be
placed.
The last potential alternative, the one the majority finds
fatal to T-Mobile’s claim, was the construction of a new
tower in Langley Fork Park, located adjacent to a residential
subdivision, Evermay. The park is owned by the National
Park Service ("NPS") and maintained by the Fairfax County
Park Authority ("FCPA"). To construct a new tower in the
Park, T-Mobile would need permission from both the NPS
and the FCPA. For the FCPA to grant permission, T-Mobile
would have to satisfy FCPA Policy 303, which requires that
"all other possible locations have been exhausted by the appli-
cation and that no feasible and prudent alternative exists."
J.A. 453. Although an FCPA representative attested that the
FCPA "would be open to receiving" a proposal for the con-
struction of a pole, the proposal would "trigger the compli-
ance process." J.A. 674. Another FCPA representative
specifically stated that the Authority "would question why co-
location on the nearby [Dominion] monopole outside of the
park is not possible." Id. As I understand the result reached by
the majority in this case, T-Mobile must pursue this rather
28 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
daunting avenue before it may come back to the Board and,
if unsuccessful a second time, to the district court.
II.
As this case comes to us from the grant of summary judg-
ment to the Board, we must view "the evidence and all rea-
sonable inferences drawn therefrom in the light most
favorable to [T-Mobile]." Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). This evidence presents two ques-
tions, as the majority agrees: First, could a reasonable fact-
finder conclude that the absence of reliable in-building cover-
age and, to a lesser extent, reliable in-vehicle coverage, in the
vicinity of the proposed facility, constitutes an "effective
absence of coverage"? Second, if there is an effective absence
of coverage, could a reasonable fact-finder conclude that T-
Mobile has shown there are no "reasonable alternative sites to
provide coverage"?
A.
As an initial matter, I discern no meaningful difference
between what the majority calls an "effective absence of cov-
erage," Maj. Op. at 10, (or elsewhere a "legally cognizable
absence in coverage," id. at 12, or a "legally cognizable defi-
cit in coverage," id. at 13) and what a prior panel on which
I served referred to as a "significant gap." In 360° Communi-
cations Co. v. Board of Supervisors of Albemarle County, 211
F.3d 79 (4th Cir. 2000) ("Albemarle County"), we assumed
without deciding that "significant gaps are determined to
exist," id. at 87-88, and thus expressly reserved the question
whether "poor service or significant gaps in service" such as
those in Albemarle County "could amount to an absence of
service." Id. at 88 n.1. We were able to avoid that question
because there was evidence of at least two alternative means
to provide coverage in the area in question but no evidence in
the record of their "feasibility." Id. at 88. Thus, regardless of
whether there was a significant gap, the wireless provider
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 29
could not show it was unable to fill that gap by means other
than the facility that had been rejected. Id.Similarly, in USCOC of Virginia RSA # 3, Inc. v. Montgom-
ery County Board of Supervisors, 343 F.3d 262 (4th Cir.
2003) ("Montgomery County"), there was an alternative plan
that would provide coverage that was "[e]quivalent" to that
which the rejected plan would have provided. Id. at 266.
Because the case was not one in which "the service could only
be provided from a particular site," the wireless provider
could not meet its burden, regardless of the extent of any gap
in reliable service. Id. at 268. In AT&T Wireless PCS, Inc. v.
City Council of the City of Virginia Beach, 155 F.3d 423 (4th
Cir. 1998) ("Virginia Beach"), we also did not consider
whether the wireless provider could prevail on the "effective
absence of coverage" question. See id. at 428-29.3
Thus, the question of when a wireless provider’s inability
to provide reliable in-building and/or in-vehicle coverage con-
stitutes an "effective absence of coverage" is one of first
impression in this circuit. We have never before needed to
decide whether a particular level of coverage in a particular
geographic area constitutes an "effective absence of cover-
age."
It is true that in Albemarle County we rejected the test
employed in the Second and Third Circuits for determining
3
I agree with the majority that the FCC’s Declaratory Ruling, regardless
of whether it was properly promulgated, does not affect our analysis. All
the FCC ruled was that a city effectively prohibits wireless services if it
denies an application "solely because that service is available from another
provider." In re Petition for Declaratory Ruling to Clarify Provisions of
Section 332(c)(7)(B), 24 F.C.C. Rcd. 13994, 14000 (2009). That "one-
provider rule" was not at issue in Virginia Beach, Albemarle County or
Montgomery County, and is not at issue here. To the extent the Declara-
tory Ruling also questioned particular aspects of our reasoning in Virginia
Beach, see id. at 14017, those concerns were rendered moot by Albemarle
County and Montgomery County.
30 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
whether the existence of an alternative site would defeat a
wireless provider’s effective-prohibition claim. That is, we
rejected a test that would compare the "intrusive[ness]" of a
rejected facility with that of any alternatives, and allow a
wireless provider to prevail if its proposed facility would be
the "least intrusive means" by which it could close an existing
gap in "service." 211 F.3d at 87. We did not, however, quarrel
with the approach those circuits had taken to the "significant
gap" prong of the analysis—as the majority acknowledges.
See Maj. Op. at 10 (noting that Albemarle County rejected the
Second and Third Circuits’ test only "[w]ith regard to the
requirement that a plaintiff demonstrate the absence of rea-
sonable alternatives").
For these reasons, I would forthrightly follow Albemarle
County’s lead in requiring evidence of a "significant gap" in
coverage as the first prong of the second type of effective-
prohibition claim. That is, I would avoid the majority’s pref-
erence for the "effective absence of coverage" gloss when
"significant gap" would do just fine. But ultimately that
choice is inconsequential, for two reasons: (1) there is no dis-
cernible difference between those standards and (2) ultimately
its discussion of the "effective absence of coverage" test is
dicta, because it decides the case solely on the lack-of-
reasonable-alternatives prong. Thus, for simplicity’s sake, I
will adopt the same formulation as that of the majority.
The upshot of our prior treatment of the question is that
whether there is an effective absence of coverage is highly
fact-specific, one that requires "case-by-case analysis." Albe-
marle County, 211 F.3d at 87. The other circuits that have
considered the question have agreed. The First Circuit, which
has provided the most thorough explanation of the contours of
this analysis, provided a non-exclusive list of considerations
that are generally relevant to whether there is a "significant
gap": "the physical size of the gap, the area in which there is
a gap, the number of users the gap affects," and the percent-
age "of unsuccessful calls or inadequate service during calls
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 31
in the gap area," as well as "whether all of the carrier’s users
in that area are similarly affected by the gaps." Omnipoint
Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir.
2009) ("Cranston").
In Cranston the district court had weighed the relevant fac-
tors after a bench trial that included competing expert testi-
mony, and adopted as a "yardstick" -84 dBm as a proper
marker in those circumstances for determining whether there
was a significant gap in coverage. Id. Because the district
court’s choice of -84 dBm as a threshold and its weighing of
the evidence were not clearly erroneous, the First Circuit
affirmed the district court’s entry of judgment for the wireless
provider. Id. Similarly, in MetroPCS, Inc. v. City of San Fran-
cisco, 400 F.3d 715 (9th Cir. 2005), the Ninth Circuit, accept-
ing jurisdiction over an interlocutory appeal certified by the
district court, id. at 720, affirmed the denial of cross-motions
for summary judgment, in part because the record was "re-
plete with contradictory allegations" as to MetroPCS’s need
to install the wireless facility at issue. Id. at 733. The court
explained, "While we recognize that the TCA does not guar-
antee wireless service providers coverage free of small ‘dead
spots,’ the existing case law amply demonstrates that ‘signifi-
cant gap’ determinations are extremely fact-specific inquiries
that defy any bright-line legal rule." Id.It is true that in dicta in Albemarle County we pondered the
frequency with which "wireless service could feasibly be pro-
vided from only one site," and conjectured that "such a hypo-
thetical seems unlikely in the real world, although gradations
of the hypothetical are conceivable." 211 F.3d at 86-87. We
did not, however, have occasion to decide what level of "ser-
vice" the Act entitles wireless companies to provide, instead
deciding that, regardless of whether there was a gap in cover-
age, the existence of alternatives to fill that gap defeated the
wireless provider’s claim. The majority opinion here thus is
wise to avoid giving unwarranted weight to that dicta. As we
now know, having wrestled with the implications of 47
32 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
U.S.C. § 332(c)(7)(B)(i)(II) alongside our sister circuits for
fifteen years, there may very well be scenarios where, as a
practical matter, very few sites—and perhaps just one site—
would allow a wireless provider to remedy a "legally cogniza-
ble deficit in coverage." It may be true that such scenarios are
"unlikely," Albemarle County, 211 F.3d at 87, and accord-
ingly a wireless provider may find its burden of demonstrat-
ing an effective prohibition to be a "heavy" one. But that does
not excuse us from deciding whether a particular wireless pro-
vider’s claim presents such a scenario, just as it does not alter
the ordinary burden of proof in a civil case like this one: pre-
ponderance of the evidence. In my view, the two-pronged test
the majority articulates provides a workable test for making
that determination.
In this case, the district court declined to engage in any
analysis of the extent of T-Mobile’s inability to provide reli-
able wireless coverage because it read our precedents as
allowing an effective-prohibition claim only where there is a
"complete absence of T–Mobile’s wireless service in the
area." T-Mobile Northeast LLC v. Fairfax Cnty. Bd. of Super-
visors, 759 F. Supp. 2d. 756, 770 (E.D. Va. 2010). As men-
tioned, it declined even to consider the admissibility of T-
Mobile’s maps because they would be relevant, the court
apparently believed, only if they showed areas with no detect-
able RF signal at all; because the maps showed T-Mobile
could provide some signal in the area, the maps were not "ma-
terial." Id. at 769 n.23. As the majority seems to agree, this
reasoning was mistaken, though certainly understandable
given the obscurity of our precedents to date. See Maj. Op. at
12 (stating the issue as whether T-Mobile is "unable to pro-
vide sufficient, reliable in-vehicle and in-building coverage in
the area at issue"); see also Montgomery County, 343 F.3d at
269 (noting there were alternative means to provide "quality
wireless service" (emphasis added)).
The problem is, while the majority clarifies some aspects
of our analysis, I am afraid it muddles other aspects of our
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 33
analysis. While the Telecommunications Act does not guaran-
tee "100% coverage" and "federal regulations contemplate the
existence of dead spots," Albemarle County, 211 F.3d at 87,
the majority recognizes that at some point a wireless provid-
er’s inability to provide reliable service in a particular area
becomes so significant that it amounts to an "effective
absence of coverage." Maj. Op. at 10. Having recognized this
possibility, however, the majority later states that the lan-
guage of subsection (B)(i)(II) "does not encompass the ordi-
nary situation in which a local governing body’s decision
merely limits the level of wireless services available." Maj.
Op. at 13.
The unavoidable tension between these pronouncements
illustrates the shortcomings of the majority’s approach. The
only way the latter could logically follow from the former is
if we were to hold that a wireless provider could only prevail
on an effective-prohibition claim if there were no detectable
RF signal in the area in question. Although, admittedly, our
prior cases include language hinting at such a requirement, we
never actually adopted the standard, as explained above—and
no circuit has come close to adopting such an extreme
approach. In fact, while the circuits have split on the second
prong of the effective-prohibition analysis, those that have
considered the question have uniformly approached the first
prong by asking whether there is a "significant gap" in cover-
age. See Cranston, 586 F.3d at 48; T–Mobile USA v. City of
Anacortes, 572 F.3d 987, 995 (9th Cir. 2009); VoiceStream
Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 834 n.7
(7th Cir. 2003); APT Pittsburg Ltd. P’ship v. Penn Twp. But-
ler Cnty., 196 F.3d 469, 480 (3d Cir. 2002); Sprint Spectrum,
L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999) ("Willoth").4
4
The Eighth Circuit has not adopted a particular standard, but in
USCOC of Greater Iowa, Inc. v. Zoning Board of Adjustment of the City
of Des Moines, 465 F.3d 817 (8th Cir. 2006), assumed without deciding
that a zoning board’s decision that prevents a wireless provider from
improving service in "a relatively small area [where its service is] less
34 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
The majority apparently recognizes that we should not split
with our sister circuits and go down that lonely road, as ulti-
mately it does not decide whether there is a triable issue on
the effective-absence-of-coverage prong. But this renders
even more inexplicable its statement in dicta that subsection
(B)(i)(II) does not grant relief if a local government "merely
limits" a wireless provider’s coverage. Rather, because sub-
section (B)(i)(II) surely is not limited to areas without any
detectable RF signal, the subsection must necessarily "encom-
pass" a scenario in which a local government’s decision "lim-
its the level of wireless services available," where that
decision leaves the provider with a significant gap in reliable
coverage.
Because a wireless device requires not just some signal to
provide reliable service but rather a sufficiently strong signal,
the question whether a gap in service is significant is one of
degree, and necessarily depends on a variety of factors, such
as those enumerated by the First Circuit in Cranston. If the
Board’s decision here had prevented T-Mobile from provid-
ing, say, even a -100 dBm signal for large swaths of popu-
lated areas of McLean, which apparently would be
insufficient for almost any use of a wireless device, then pre-
sumably (though we need not decide) T-Mobile could show
an effective absence of coverage, i.e., a significant gap. Con-
versely, if the Board’s decision had prevented T-Mobile from
providing reliable in-building coverage to merely a handful of
homes, then we might have needed to decide (though here, we
need not) whether the "effective absence of coverage" was de
minimis and therefore no reasonable factfinder could conclude
T-Mobile is entitled to relief. See Willoth, 176 F.3d at 643-44
than optimal" could constitute an effective prohibition, so long as the pro-
vider has "adequately investigate[d] all feasible alternative sites." Id. at
825. There, the provider’s claim failed because it failed to conduct a rea-
sonable investigation of alternatives and so the court was "unable to con-
clude that the [site at issue] was the only location for a cellular tower that
would remedy USCOC’s coverage issue." Id.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 35
(noting in dicta that "[w]here the holes in coverage are very
limited in number or size (such as the interiors of buildings
in a sparsely populated rural area, or confined to a limited
number of houses or spots as the area covered by buildings
increases) the lack of coverage likely will be de minimis so
that denying applications to construct towers necessary to fill
these holes will not amount to a prohibition of service").
Indeed, T-Mobile conceded this latter possibility at oral argu-
ment. Oral Arg. Tr. at 8:25.
On the facts here, the core problem with the majority’s
effective-absence-of-coverage analysis (though not its hold-
ing, as ultimately it avoids deciding the issue) is its failure to
acknowledge that this case does not present either extreme
scenario. Even the Board concedes that in the vicinity of the
Pole there is a "mix" of areas with varying strengths of cover-
age, in only some of which T-Mobile’s customers receive reli-
able in-building coverage. Appellee’s Br. at 23. T-Mobile
presented evidence that in a substantial portion of the area in
question, which includes developed residential areas and
heavily trafficked roads, a T-Mobile customer would be
unable to reliably use T-Mobile’s wireless network, especially
from inside homes and buildings, but also at times from inside
vehicles—and even sometimes just standing outside. Indeed,
the Board does not seem to dispute any of that evidence.
Thus, we are squarely presented with the question whether
those deficiencies in coverage rise to the level of an "effective
absence of coverage."
We could, of course, avoid this question if T-Mobile’s
claim failed as a matter of law on the lack-of-reasonable-
alternatives prong. This is the tack the majority takes, con-
cluding, as it does, that T-Mobile failed as a matter of law to
satisfy its burden on the lack-of-reasonable-alternatives
prong. In certain circumstances, such as in Albemarle County,
that is a tenable approach. Unlike in Albemarle County, how-
ever, T-Mobile has presented substantial evidence concerning
alternative sites, evidence that, in my view, precludes us from
36 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
avoiding the question we reserved in Albemarle County, as I
will explain below. Accordingly, I believe we must decide
whether a reasonable fact-finder could conclude that T-
Mobile has proven an "effective absence of coverage."
In my view, between T-Mobile’s RF propagation maps,
drive-test map, affidavits, and other evidence, the answer
must be "yes." Whether a particular number of customers in
a particular geographic area cannot reliably use cellular wire-
less devices indoors and whether that absence of in-building
service constitutes an effective absence of coverage are fact-
intensive questions, ones on which, on the facts presented
here, reasonable fact-finders could disagree. Although we do
not know some details of the scope and extent of the gap in
coverage, such as precisely how many homes are affected or
how often T-Mobile’s network drops calls made in the area in
question, a party seeking to defeat summary judgment need
not prove every fact it would prove at trial; it need only prof-
fer sufficient evidence to show that it could prevail at trial.
This, I believe, T-Mobile has done.5
5
In this regard, it is difficult to know what to make of our good friend’s
concurring opinion, which is offered to "emphasize the ‘substantial bur-
den’ that a plaintiff bears in seeking to show a violation of 42 U.S.C.
§ 332(c)(7)(B)(i)(II)." Why a separate opinion is needed to voice such
"emphasis" is quite unclear. Amorphous formulations such as "substantial
burden" and "heavy burden" rarely aid analysis of actual cases; such for-
mulations are descriptive, not prescriptive. No one believes it is or should
be "easy" for a wireless service provider to persuade a court to reject a
local zoning authority’s decision denying a requested permit. But abso-
lutely nothing in our precedent (or any other court’s precedent) suggests
that the customary civil risk of non-persuasion (preponderance of the evi-
dence) or well-settled Rule 56 summary judgment standards (absence of
genuine disputes of material fact and entitlement to judgment as a matter
of law) do not apply under the Act. Surely, the concurrence agrees with
this statement.
Moreover, the assertion that I am "bend[ing] over backward" misses the
mark entirely. See Concurring Op. at 22 n.*. T-Mobile’s alleged conces-
sion at oral argument is quite accurate: under the erroneous view of the
law applied by the district court, which believed our precedents required
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 37
B.
This brings me to the second question: whether T-Mobile
has shown that a reasonable fact-finder could conclude there
are no "reasonable alternative sites to provide coverage." As
the majority notes, the standard we apply as to this second
prong of the effective-prohibition analysis differs slightly
from that adopted by the Second, Third and Ninth Circuits.
Those courts, instead of requiring a "lack of reasonable alter-
native sites," require that the proposed facility be "the least
intrusive means" to close the gap in service. See MetroPCS,
400 F.3d at 734; APT Pittsburg Ltd., 196 F.3d at 480; Willoth,
176 F.3d at 643. In Albemarle County, we expressly rejected
the "least intrusive means" test as "read[ing] too much into the
Act," instead leaving the factual analysis to be conducted on
a "case-by-case" basis. 211 F.3d at 87. Likewise, the First Cir-
cuit has also declined to define the second prong and instead
left it as a "factual question for the trial court to resolve."
Cranston, 586 F.3d at 52.
As the majority explains, instead of engaging in a compara-
tive "intrusive[ness]" analysis, we instead inquire into
whether a wireless provider has shown that there is "a lack of
reasonable alternative sites to provide coverage." Maj. Op. at
10. This standard incorporates, as it must, two subsidiary
questions: (1) whether a proffered alternative exists, i.e., is
"technically infeasible [or] practically unavailable," Maj. Op.
at 12-13, and (2) whether in fact the alternative would "pro-
a "blanket ban" for a service provider to prevail in an effective prohibition
case, T-Mobile (and any similarly-situated service provider) does lose.
Fortunately, despite the confusion evident in the concurrence, the majority
opinion soundly rejects the "blanket ban" formulation, and in any event
escapes confronting prong one, the "effective absence of coverage" issue,
by deciding the case solely on prong two, the "reasonable alternative"
issue. Thus, T-Mobile’s concession is irrelevant to the disposition of this
case.
38 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
vide coverage," i.e., would effectively fill the existing gap.6
We have previously explained that whether a particular alter-
native site is reasonably available depends on whether "fur-
ther reasonable efforts are so likely to be fruitless that it is a
waste of time even to try." Albemarle County, 211 F.3d at 88.
We do not require providers "to endure repeated denials by
local authorities until only one feasible alternative remained,"
a standard that would be "a poor use of time and resources for
both providers and local governments alike." MetroPCS, 400
F.3d at 734. "Ultimately the question is a practical inquiry
into feasible, available alternatives." Cranston, 586 F.3d at
52-53. As the First Circuit has explained, the purpose of
inquiring into the existence of alternatives and their feasibility
is to balance "competing interests": (a) the need for wireless
carriers to "build more facilities, especially in populated
areas, to continue providing reliable coverage," (b) the impor-
tance of "promoting competition in the wireless communica-
tions market," and (c) "local governments’ primary authority
to regulate land use." Id. at 51-52.
We considered these questions in both Albemarle County
and Montgomery County. In both cases, the effective-
prohibition claims failed as a matter of law because the wire-
less providers had not shown an absence of reasonable alter-
native sites to provide coverage. In Albemarle County, the
wireless provider had acknowledged there were alternative
sites, and had failed to provide evidence that those alterna-
tives were not "feasible." 211 F.3d at 82. In Montgomery
County, not only was there an alternative facility (a 195-foot
tower instead of a 240-foot tower) that "would provide wire-
less capabilities to a significant area of the county currently
without quality wireless service"; the county had in fact
already granted a permit for an alternative tower. 343 F.3d at
268-69.
6
This is similar to the Seventh Circuit’s approach, which requires a
wireless provider to show that the proposed facility is the "only feasible
plan." VoiceStream Minneapolis, 342 F.3d at 833, 834–35 (7th Cir. 2003).
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 39
Here, in contrast, T-Mobile has offered substantial evi-
dence that, to the extent there are alternative sites from which
T-Mobile could provide coverage, those alternatives either (a)
are not reasonably available or (b) would not fill the existing
gap in coverage. Most of that evidence the Board does not
dispute. There are three alternatives, however, the Board
argues T-Mobile has not adequately shown are either not rea-
sonably available or would not fill the gap: a new tower in
Langley Fork Park; a 45-foot-high facility on the same
Dominion Pole it sought to extend for a 108-foot-high facil-
ity; and a distributed antenna system.
The majority finds the possibility of constructing a new
tower in Langley Fork Park fatal to T-Mobile’s claim. I agree
that if the Park truly were a "reasonable alternative," then that
fact alone would be fatal to T-Mobile’s claim; the denial of
the Dominion pole application would not effectively prohibit
T-Mobile from providing wireless services in the area, regard-
less of whether the existing gap in coverage is significant.
But, in my view, on this record, T-Mobile could convince a
reasonable fact-finder that constructing a new tower in the
Park is not a reasonable alternative.
As T-Mobile showed, the Fairfax County Park Authority
would only be willing to approve the construction of a cellular
tower in the Park if "all other possible locations have been
exhausted" and if "no feasible and prudent alternative exists."
J.A. 453. This put T-Mobile in a Catch-22: it could construct
a tower in the Park only if there were no other "feasible and
prudent alternative[s]," id., but could prevail on an effective-
prohibition claim only if the Park was "practically unavail-
able" as an alternative. Maj. Op. at 13. Furthermore, although
an NPS representative said the NPS "would be open to receiv-
ing" a proposal for the construction of a pole, the submission
of such a proposal would merely "trigger the compliance pro-
cess," J.A. 674, and an FCPA representative specifically told
T-Mobile that the FCPA "would question why co-location on
the nearby [Dominion] monopole outside of the park is not
40 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
possible." J.A. 453. Finally, as T-Mobile represented at oral
argument (without contradiction), the FCPA has never
approved the construction of a cellular tower in Langley Fork
Park.
Given this conflicting evidence on the dispositive issue,
"reasonableness," only if the summary judgment standard
were flipped on its head could the majority’s conclusion with-
stand scrutiny. I fail to see how no reasonable fact-finder
could conclude, based on this evidence, that further "reason-
able efforts" to obtain permission to build a new tower in the
Park "are so likely to be fruitless that it is a waste of time
even to try," Albemarle County, 211 F.3d at 88, or, in the
majority’s words, "would be futile." Maj. Op. at 14. Surely
the majority does not mean to require T-Mobile "to endure
repeated denials by local authorities until only one feasible
alternative remained." MetroPCS, 400 F.3d at 734, a require-
ment that would run contrary to the Act’s express goal of "en-
courag[ing] the rapid deployment of new telecommunications
technologies." Pub. L. 104-104, 110 Stat. 56, 56 (1996). The
question is simply a much closer question than was the feasi-
bility of the alternatives at issue in Albemarle County and
Montgomery County, and far too close to be resolved on sum-
mary judgment.7 Although perhaps T-Mobile’s argument
would be stronger if it had developed the record before the
Board somewhat more on the unlikelihood of winning
approval for a pole in the Park, its failure to do so does not,
in my view, preclude a reasonable fact-finder from finding
7
Whether "future attempts to gain approval for [other] wireless facilities
to enhance its coverage" in Fairfax County would be fruitless, and whether
the Board "has a strong history of approving wireless facilities, including
applications for wireless facilities submitted by T-Mobile," Maj. Op. at 16,
are irrelevant to this category of effective-prohibition claims. The question
is whether approval for the specific alternatives at issue (e.g., a new tower
in Langley Fork Park) is so unlikely that it would be a waste of time for
T-Mobile to try.
T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD 41
that further reasonable efforts to obtain permission from the
FCPA are likely to be fruitless.8
Because I believe a reasonable fact-finder could conclude
the Park was not a reasonably available alternative, I would
reach the question of the availability of the two other alterna-
tives: a distributed antenna system and a 45-foot facility on
the Pole, below AT&T’s and Verizon’s facilities. If we could
say that these alternatives were reasonably available and that
the gap that would remain would not be significant—and that
no reasonable fact-finder could conclude otherwise—then the
existence of one or both of these alternatives would defeat T-
Mobile’s claims as a matter of law. The fundamental problem
with that approach is that T-Mobile’s RF propagation maps
show that both a DAS and a 45-foot facility would fill only
part of the existing gap in reliable in-building coverage. This
brings us right back to the vexing question the majority
wishes to avoid: at what point does a wireless provider’s
inability to provide reliable in-building or in-vehicle service
rise to the level of an effective absence of coverage? This
question cannot be resolved as a matter of law on these facts
for the same reasons as those stated above.9
8
It seems T-Mobile did not present an RF propagation map showing the
extent to which a new tower in the Park would provide reliable in-building
service to T-Mobile customers in the area who are currently without such
service. But that failure does not mean its claim fails as a matter of law,
because whether an alternative would provide adequate coverage is only
part of the analysis under the lack-of-reasonable-alternatives prong. If a
proffered alterative is simply not practically available, then a wireless pro-
vider can prevail, regardless of whether the alternative site would provide
adequate coverage. Thus, T-Mobile’s apparent decision not to demonstrate
the coverage a tower in the Park would provide simply means that, to pre-
vail, it must show that further reasonable efforts to seek permission to con-
struct such a tower are likely to be fruitless.
9
Because a reasonable fact-finder could conclude that a DAS or 45-foot
facility would not fill the effective absence of coverage, this case is not
one where a wireless provider rejected an alternative site or alternative
technology solely on the basis of cost. Thus, we need not decide whether
a potential alternative that is technically feasible and would fill an existing
gap, but would be very expensive to implement, would be rendered "prac-
tically unavailable" on the basis of cost.
42 T-MOBILE NORTHEAST v. FAIRFAX COUNTY BOARD
C.
For these reasons, in my view, there are genuine issues of
material fact on both prongs of our effective-prohibition anal-
ysis. Our review of an effective-prohibition claim might look
different if there were properly promulgated FCC regulations
setting particular threshold coverage levels subsection
(B)(i)(II) entitles a company like T-Mobile to provide. But the
agency has not acted on this question, and so we are left with
the fact-intensive questions of whether T-Mobile’s gap in ser-
vice constitutes an "effective absence of coverage" and
whether potential alternative sites are "reasonable." Thus, as
in any such case, we should remand. Presumably, the parties
would proceed to a bench trial, though conceivably the district
court could decide that additional discovery and/or renewed
motions for summary judgment, or possibly further remand to
the Board, would be appropriate, now that we have clarified
the standard we apply in effective-prohibition cases.
III.
For these reasons, although I join the court’s opinion as to
T-Mobile’s unreasonable-discrimination claim, I respectfully
dissent from its disposition of T-Mobile’s effective-
prohibition claim.