T-Mobile Central, LLC v. Charter Township of West Bloomfield ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0275p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
T-MOBILE CENTRAL, LLC,
-
Plaintiff-Appellee,
-
-
No. 11-1568
v.
,
>
-
Defendant-Appellant. -
CHARTER TOWNSHIP OF WEST BLOOMFIELD,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:09-cv-13496—Denise Page Hood, District Judge.
Argued: May 30, 2012
Decided and Filed: August 21, 2012
Before: BOGGS and COLE, Circuit Judges; and OLIVER, District Judge*
_________________
COUNSEL
ARGUED: Drew W. Broaddus, SECREST WARDLE, LYNCH, HAMPTON, TRUEX,
and MORLEY, Troy, Michigan, for Appellant. T. Scott Thompson, DAVIS WRIGHT
TREMAINE LLP, Washington, D.C., for Appellee. ON BRIEF: Drew W. Broaddus,
SECREST WARDLE, LYNCH, HAMPTON, TRUEX, and MORLEY, Troy, Michigan,
for Appellant. T. Scott Thompson, Leslie G. Moylan, DAVIS WRIGHT TREMAINE
LLP, Washington, D.C., for Appellee.
*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
1
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 2
_________________
OPINION
_________________
BOGGS, Circuit Judge. T-Mobile proposed to build a cellular tower in an area
of West Bloomfield Township, Michigan, that had a gap in coverage. The Township
denied T-Mobile’s application. T-Mobile brought suit, alleging that the denial of the
application violated the Telecommunications Act, 47 U.S.C. § 332 et seq. The district
court granted partial summary judgment in favor of T-Mobile, and the Township
appealed. There are three issues on appeal. First, whether the Township’s denial of T-
Mobile’s application to install a cellular tower was supported by substantial evidence,
as required by 47 U.S.C. § 332(c)(7)(B)(iii). Second, whether the Township’s denial of
T-Mobile’s application had the effect of prohibiting T-Mobile from providing wireless
services and thus violated 47 U.S.C. § 332(c)(7)(B)(i)(II). This issue, which has led to
a split among the circuits, presents a case of first impression for this circuit. Finally,
whether the district court should have granted summary judgment in favor of the
Township on Count III of the complaint because the Township had discretion to grant
or deny a special land use application under Mich. Comp. Laws § 125.3504. We affirm
the judgment of the district court.
I
A
T-Mobile, a wireless communications carrier in Michigan, identified a gap in
coverage in West Bloomfield Township that adversely affected customers in that area.
To remedy this gap, T-Mobile sought to construct a new wireless facility. After initially
considering several possible sites—none of which T-Mobile claimed were technically
feasible or practically available—T-Mobile decided that the best option would be to
construct a facility at a utility site on a property owned by Detroit Edison. The facility
contained an existing 50-foot pole, which T-Mobile wanted to replace with a 90-foot
pole disguised to look like a pine tree with antennas fashioned as branches
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 3
(a “monopine”). This site was not located within the two cellular tower overlay zones
designated in the Township’s Zoning Ordinance (CT 1 and CT 2), where wireless
facilities are considered a use permitted by right, subject only to site approval.
Therefore, T-Mobile would have to seek special land-use approval and site-plan
approval.
On December 17, 2008, T-Mobile filed an application with the Township to
obtain special land-use approval for the proposed site. The Township Planning
Commission held a hearing on February 24, 2009. At the hearing, T-Mobile presented
testimony and evidence demonstrating its need to fill a gap in coverage, justification for
the selection of that site and the height of the pole, an explanation of how the facility
would provide for collocating1 equipment for other cellular carriers, and a representation
that the facility would have a minimal visual impact. Several members of the public
spoke in opposition to granting the special land use. The areas to the north, east, and
west of the proposed site were residential subdivisions, and there was a daycare center
to the south. At the hearing, the Township Planning Commission passed a motion to
recommend to the Board of Trustees of the Township that T-Mobile’s application should
be denied.
On May 27, 2009, T-Mobile submitted to the Board of Trustees additional
materials in support of its application, which responded to the Township Planning
Commission’s objections. Specifically, T-Mobile contended that 90 feet would be the
minimum height necessary in order to collocate two other carriers on the towers. Several
people spoke in opposition to T-Mobile’s application at the Board of Trustees hearing.
On August 3, 2009, the Board denied T-Mobile’s application in a letter with five stated
reasons.
1
The word “collocate” is also spelled as “colocate” and “co-locate” in the record.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 4
B
T-Mobile sought an injunction in district court that would direct the Board of
Trustees to grant its application. The complaint raised three claims. First, that the denial
of its application was not supported by substantial evidence, in violation of the
Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii). Second, that the denial of its
application had the “effect of prohibiting the provision of personal wireless services.”
47 U.S.C. § 332(c)(7)(B)(i)(II). Third, that the denial of the permit was a violation of
the Township’s duty under Mich. Comp. Laws § 125.3504(3) to approve special land use
applications that meet the Township’s zoning ordinance requirements.
The district court granted T-Mobile’s motion for partial summary judgment.
First, the district court held that the Township’s grounds for denial were not supported
by substantial evidence. Second, the district court held that T-Mobile could not feasibly
locate the facility elsewhere and that the Township had effectively prohibited the
provision of wireless services. Third, because the Township violated the
Telecommunications Act, it was not necessary to construe state law, and thus the
question of whether the Township complied with Mich. Comp. Laws § 125.3504(3) was
moot.
The Township appealed the district court’s order granting T-Mobile’s motion for
partial summary judgment. On appeal, this court reviews the district court's grant of
summary judgment de novo. Sigley v. City of Parma Heights, 437 F.3d 527, 532
(6th Cir. 2006).
II
A
47 U.S.C. § 332(c)(7)(B)(iii) provides: “Any decision by a State or local
government or instrumentality thereof to deny a request to place, construct, or modify
personal wireless service facilities shall be in writing and supported by substantial
evidence contained in a written record.” (emphasis added). When drafting this statute,
Congress used the “substantial evidence” standard, well understood in appellate review
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 5
of administrative proceedings but a novel concern for federal courts reviewing the
proceedings of local zoning boards. This court, like all others,2 has found that the
“‘substantial evidence’ standard of § 332 is the traditional standard employed by the
courts for review of agency action.” Telespectrum, Inc. v. Pub. Serv. Comm’n of
Kentucky, 227 F.3d 414, 423 (6th Cir. 2000).
However this court’s precedents do not address “substantial evidence” of what?
In other words, if there is a denial of an application to build a wireless facility, what
must the substantial evidence in the record show in order to avoid a violation of
§ 332(c)(7)(B)(iii)? The Ninth Circuit—in an opinion by Judge Cudahy sitting by
designation from the Seventh Circuit—explained that this standard “requires a
determination whether the zoning decision at issue is supported by substantial evidence
in the context of applicable state and local law.” MetroPCS, Inc. v. City & Cnty. of San
Francisco, 400 F.3d 715, 723–24 (9th Cir. 2005). On this analysis, § 332 does not
introduce a new federal substantive standard by which to assess the validity of the local
law. Rather, the limited focus is on the nature of the evidence before the local zoning
board and whether it is substantial. The Ninth Circuit found that it “may not overturn
the Board's decision on ‘substantial evidence’ grounds if that decision is authorized by
applicable local regulations and supported by a reasonable amount of evidence (i.e.,
more than a ‘scintilla’ but not necessarily a preponderance).” Id. at 725.
The existence of “substantial evidence” in the record—as traditionally
understood in the context of federal administrative law—is the standard against which
federal courts consider whether a zoning board acted in conformity with the relevant
local laws. So, for example, if the terms of a local zoning ordinance allow a zoning
2
See USCOC of Greater Iowa v. Zoning Bd. of Adjustment of Des Moines, 465 F.3d 817, 821
(8th Cir. 2006) (“We agree with the Seventh Circuit that although ‘it is unusual for a federal court to be
reviewing the decision of a nonfederal agency, we are given no reason to suppose that the term “substantial
evidence” in the Telecommunications Act bears a different meaning from the usual one.’”) (quoting
PrimeCo Pers. Commc’ns v. City of Mequon, 352 F.3d 1147, 1148 (7th Cir. 2003)); MetroPCS, Inc. v. City
& Cnty. of San Francisco, 400 F.3d. 715, 723 (9th Cir. 2005) (noting that “there appears to be universal
agreement among the circuits” that the traditional “substantial evidence” standard applies to 47 U.S.C. §
332(c)(7)(B)(iii)); Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1218 (11th Cir. 2002) (same); Sw.
Bell Mobile Sys. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001) (“The ‘substantial evidence’ standard of review
is the same as that traditionally applicable to a review of an administrative agency’s findings of fact.”);
Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (holding that “substantial
evidence” implies this traditional standard).
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 6
board to deny a permit based on less than substantial evidence, or no evidence at all, and
a permit is denied on that basis, the record would lack substantial evidence to justify the
decision. Federal review is limited to this evidentiary inquiry. See id. at 724 (“[W]e
must take applicable state and local regulations as we find them and evaluate the City
decision’s evidentiary support (or lack thereof) relative to those regulations.”); ATC
Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002) (“The TCA's
substantial evidence test is a procedural safeguard which is centrally directed at whether
the local zoning authority’s decision is consistent with the applicable [local] zoning
requirements.”). The “substantial evidence” standard constructs a floor below which the
justification for denying a permit cannot fall—if it does, the board’s decision would
violate § 332(c)(7)(B)(iii).
Though this court is interpreting state substantive law, it applies the familiar
substantial-evidence standard, which is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Universal Camera
v. NLRB., 340 U.S. 474, 477 (1951). As this court noted in Telespectrum, we “look to
whether the agency explained any credibility judgments it made and whether it gave
reasons for crediting one piece of evidence over another” and “examine the evidence as
a whole, taking into account whatever in the record fairly detracts from its weight.”
Telespectrum, 227 F.3d at 423.
B
The Township argues that its denial of T-Mobile’s application was supported by
substantial evidence. In a letter to T-Mobile, the Township Clerk offered five reasons
for denying the application:
1. That the aesthetics of the surrounding neighborhood would be affected
adversely; and,
2. That [T-Mobile] has not accomplished an aesthetically pleasing
structure; and,
3. That a 70-foot cellular tower could be erected in the location rather
than a 90-foot cellular tower; and,
4. That the Zoning Ordinance (Section 26-49 a.10) specifies that the
Township Board found that the presence of numerous towers and pole
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 7
structures, particularly if located within residential areas, would decrease
the attractiveness of and destroy the character and integrity of the
community; and,
5. T-Mobile has not presented a sufficient need to build the towers[.]
T-Mobile counters that the five reasons provided for denying the application were
“conclusory, unsubstantiated assertions that do not cite any specific evidence and are not
supported by substantial evidence in the record.” None of these five reasons are
supported by substantial evidence.
1
At the August 3, 2009, meeting before the Township Board, several comments
were made regarding the aesthetics of the tower. Trustee Howard Rosenberg twice
referred to the facility as an “ugly tower.” After the hearing was opened for public
comment, several residents expressed concerns about the aesthetics of the facility. Mr.
Smith noted that the “existing pole was a wood pine pole with a whip antenna, [and was]
very different from the proposed tower.” Paul Grondin expressed concern that the tower
would harm “conifers [that are] diseased and will die.” Arthur White, who managed a
daycare facility nearby, asked: “Would you want one of these cell towers in your back
yard,” and expressed concern about the tower’s emissions harming children.3 The
record reflects that two letters of objection were received, but the actual letters were not
made part of the record.
On appeal, the Township asserts that these objections to the facility relate to
standards in § 26-49(d)(1) of the local zoning ordinance, which requires facilities to be
“located and designed to be harmonious with the surrounding areas.” T-Mobile argues
that the wireless facility would have been disguised as a tree on a property that has
numerous existing trees and that already has a 50-foot pole, asserting that “there are
few—if any—wireless support structures that could be more aesthetically pleasing.”
3
Similar comments were made to the Township Planning Commission on February 24, 2009, by
several of the same people.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 8
While the concerns brought before the Board certainly relate to building a
wireless facility that is aesthetically pleasing and “harmonious with the surrounding
area,” the evidence in the record is hardly substantial. The generalized complaints
effectively amount to NIMBY—not in my backyard.4 How substantial must substantial
evidence be? Substantial evidence should be substantiated. Telespectrum, 227 F.3d at
424 (noting that the unsupported testimony of a community resident, though “credible
[and] sympathetic[,] . . . was no more than unsupported opinion” and was not substantial
evidence). The evidence relied on by the Board of Trustees was merely alleged, not
substantiated. There was no evidence whatsoever that the wireless facility would have
any impact on the conifers, beyond Mr. Grondin’s accusation. Further, concerns that
the RF emissions could potentially impact trees or children at the daycare were
prohibited by statute as grounds to deny a wireless permit. “[N]o state or local
government or instrumentality thereof may regulate the construction of personal wireless
facilities on the basis of the environmental effects of RF emissions to the extent that such
facilities comply with the Commission’s regulations concerning such emissions.”
47 U.S.C. § 332(c)(7)(B)(iv); Telespectrum, 227 F.3d at 424 (“[C]oncerns of health
risks due to the emissions may not constitute substantial evidence . . . .”).
General concerns from a few residents that the tower would be ugly or that a
resident would not want it in his backyard are not sufficient. New Par v. City of
Saginaw, 301 F.3d 390, 399 n.4 (6th Cir. 2002) (citing Petersburg Cellular P'ship v. Bd.
of Supervisors, 205 F.3d 688, 695 (4th Cir. 2000) (“If, however, the concerns expressed
by the community are objectively unreasonable, such as concerns based upon conjecture
or speculation, then they lack probative value and will not amount to substantial
evidence.”)).
4
Several of the concerned citizens and members of the Board specifically mentioned their
backyards during the August 3, 2009, meeting. (“But I need to know if a resident says, you put an ugly
tower in my backyard and you potentially decrease my property value; [m]y backyard is kind of where
they’re going to put this thing; [b]ut the final word is, would you want one of these cell towers in what
would be, if I build a house there or build houses there, in my backyard?; [w]ould you want that in your
backyard; [t]here will be towers and towers, and pretty soon I’ll have Disneyland in my backyard.”)
(emphases added).
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 9
If § 332 were read as broadly as the Township suggests and these generalized
objections sufficed, any wireless facility could be rejected. Anyone who opposed a cell
tower in their backyard could offer an excuse that it would be bad for the community,
would not be aesthetically pleasing, or would be otherwise objectionable. But that by
itself is not enough. There must be evidence. And not just any evidence—evidence that
is substantial. And substantial evidence must be substantiated by something.
“Substantial evidence, in the usual context, has been construed to mean less than a
preponderance, but more than a scintilla of evidence.” Cellular Tel. Co., 166 F.3d at
494.
The fourth reason provided is that “the Zoning Ordinance (Section 26-49 a.10)
specifies that the Township Board found that the presence of numerous towers and pole
structures, particularly if located within residential areas, would decrease the
attractiveness of and destroy the character and integrity of the community.” Section 26-
49(a)(10) of the zoning ordinance states: “The township board finds that the presence
of numerous tower and/or pole structures, particularly if located within residential
areas, would decrease the attractiveness and destroy the character and integrity of the
community.” (emphasis added). The former stated reason simply parrots the language
of the ordinance. Merely repeating an ordinance does not constitute substantial
evidence. See, e.g., T-Mobile Ne. LLC v. City of Lawrence, 755 F. Supp. 2d 286, 291
(D. Mass. 2010). Further, the evidence in the record suggests quite the contrary. There
were not numerous towers or poles in that area—in fact, the lack of wireless towers in
that area was the reason why T-Mobile sought to build one.
The Township’s reasons for denial concerning aesthetics were not based on
substantial evidence in the record.
2
The Township asserts that there is substantial evidence in the record showing
that a 70-foot tower would have sufficed rather than the proposed 90-foot tower. T-
Mobile counters that under the local zoning ordinance, it was required to collocate other
wireless carriers on a new tower and could not have feasibly done so on a 70-foot tower.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 10
The zoning ordinance states a goal of collocation—that is, locating several
carriers on the same tower—and building only as many new wireless facilities as
necessary. See Sections 26-49(a)(9) (“This contemplates the establishment of as few
structures as reasonably feasible, and the use of structures which are designed for
compatibility, including the use of existing structures”); 26-49(g)(3)c (“The policy of
the community is to promote colocation”). Section 26-49(g)(3)b of the zoning ordinance
states that “[a]ll new and modified wireless communication facilities shall be designed
and constructed so as to accommodate colocation.” Section 26-49(b)(4) defines
collocation as “the location by two (2) or more wireless communications providers of
wireless communication facilities on a common structure, tower, or building, with the
view toward reducing the overall number of structures required to support wireless
communication antennas within the community.” (emphases added). Section 26-49(e)(1)
of the ordinance provides that “[t]he maximum height of the new or modified support
structure and antenna shall be the minimum height demonstrated to be necessary for
reasonable communication by the applicant (and by other entities to collocate on the
structure).”
By the terms of the ordinance, any new facility was required to collocate “two
(2) or more wireless communications providers.” Further, the structure would have to
be tall enough in order to support “reasonable communication” for at least two carriers.
The Township denied T-Mobile’s application, in part, because the Township found that
“a 70 foot cellular tower could be erected in the location rather than a 90 foot cellular
tower.” To support this reasoning, the record would have to contain substantial evidence
that a 70-foot tower would have permitted two collocated carriers to engage in
“reasonable communication.”5
The record contains letters from AT&T and Verizon who expressed a desire to
collocate with T-Mobile on the “90’ monopine” tower. “There must be at least ten feet
of vertical separation between the antennas of the various wireless companies
5
On appeal, the Township suggests that a 75-foot or 80-foot tower could have also been
appropriate. However, the reason in the denial letter concerned a 70-foot, rather than a 90-foot, tower.
This is the issue before the court on appeal. Appellant Br. at 31.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 11
collocating on the tower.” The letter from Verizon requested to “occupy the second
available level of this structure, which would be [at] approximately 77’.” Verizon’s
letter noted that it had “been in search [sic] to construct such a facility in this area for a
great amount of time.” AT&T’s letter expressed interest “on the condition that all
zoning approvals are secured.”6
There is no evidence in the record to support the Township’s position that a 70-
foot tower would have been suitable to satisfy the zoning ordinance’s requirement that
two wireless providers, engaged in reasonable communication, could be collocated at
this particular site. Appellant misreads the record when it claims that Verizon would
have been willing to collocate on a 70-foot tower with Verizon’s equipment placed at
the 60-foot level. Here is the relevant colloquy from the Board of Trustees meeting:
MR. DOVRE (Trustee): I’m asking if you’re willing to co-locate that
low?
MR. ANDERS (Representative from Verizon): We’re willing to
co-locate on the tower at a height that the tower owner would provide to
us.
MR. DOVRE: As low as 70 feet?
MR. ANDERS: Yes.
MR. DOVRE: How long [sic—should be low] would you co-locate at?
MR. ANDERS: As low as 70 feet.
MR. DOVRE: 60?
MR. ANDERS: I’d have to—70 feet is right now the—
The questions posed asked for the minimum height at which Verizon was willing to
collocate, not for the height the structure would be. In the original letter, Verizon sought
to collocate at around 80 feet but was willing to compromise at 70 feet (presumably
because AT&T was no longer in the picture). Since Verizon was not building the
structure—T-Mobile was—the ultimate height would have been mostly irrelevant to
Verizon. What mattered was the height at which Verizon’s equipment would be located.
A 70-foot tower, with Verizon collocated at 60 feet, would not, by Verizon’s own
admission, have worked. In other words, if Verizon’s equipment was positioned as low
6
However, it seems AT&T’s support may have waned after opposition emerged to the facility,
as it did not participate in the Township Board meeting.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 12
as 70 feet, T-Mobile’s equipment would be placed above it, making the height of the
structure greater than 70 feet (likely 80 feet). Simply stated, the evidence in the record
only shows that if T-Mobile were to build a tower with two collocated carriers as the
ordinance requires, the height would have to be greater than 70 feet tall. The evidence
does not show that a 70-foot tower would have been possible.
T-Mobile even offered to build a 70-foot tower if no other carriers collocated
(while this arguably would have violated the ordinance’s collocation requirement, it
resulted from T-Mobile’s trying to accommodate the Township). At the August 3, 2009,
meeting, after Trustee Kaplan mentioned that “[w]e also felt that a 70 foot tower would
have been sufficient,” a representative of T-Mobile replied that if no other carriers were
interested in collocating, “I would like to go on the record as saying, if you’re willing
to approve a 70 foot tower, I’m willing to take one.” Following the colloquy with the
Verizon representative, a motion was made to the Township Board to “remand the issue
to the planning commission for consideration of a 70 foot tower.” The motion was
seconded but not approved.
The Township’s position creates an untenable situation for T-Mobile. If T-
Mobile built a 70-foot tower that only supported one provider (T-Mobile), it would
violate the ordinance that requires collocation. If T-Mobile built a 70-foot tower
that also collocated another provider (Verizon), it would violate the ordinance
(Section 26-49(d)(1)e.1) that requires the structure to be the “minimum height
demonstrated to be necessary for reasonable communication by the applicant (and by
other entities to collocate on the structure).” The shorter collocated tower wouldn’t work
for Verizon. T-Mobile even offered to build a 70-foot tower if no other carriers were
collocated, and the Board did not adopt this proposal. By the very terms of the
ordinance and the Board’s decisions, T-Mobile could not build the structure under any
circumstances. Nothing in the record supports the ultimate decision that the Township
made with respect to height. The Township’s reason for denial of the application with
respect to the height of the tower was not supported by substantial evidence.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 13
3
The fifth reason offered for the denial of T-Mobile’s application was that “T-
Mobile has not presented a sufficient need to build the towers [sic].” During the hearing,
T-Mobile submitted a report from its RF engineer that contained coverage maps and
other data. The Township raises several objections to the report. First, that the
engineer’s analysis about the coverage gap did not contain any actual customer
complaints;7 second, that the coverage maps “were not based upon any empirical data”;
and third, that the “proposed tower would do nothing to improve coverage to the south
and east.”
These three objections were only raised during the course of litigation—none
were stated in the record. Further, none of these arguments cite any evidence in the
record—rather, the Township merely cites its own briefs from the district court.8 These
arguments are not properly before this court. The only issue before this court is whether
substantial evidence existed to support the denial of the application based on need, as
defined by the local zoning ordinance. MetroPCS, 400 F.3d at 724 (“[W]e must take
applicable state and local regulations as we find them and evaluate the City decision’s
evidentiary support (or lack thereof) relative to those regulations.”). Section
26-49(d)(2)a lists several factors to consider in determining need:
a. The applicant shall demonstrate the need for the proposed facility to
be located as proposed based upon the presence of one or more of the
following factors:
l. Proximity to an interstate or major thoroughfare.
2. Areas of population concentration.
3. Concentration of commercial, industrial, and/or other business centers.
4. Areas where signal interference has occurred due to tall buildings,
masses of trees, or other obstruction.
7
There is no requirement in the ordinance, or in federal law, that requires the submission of
consumer complaints.
8
In its brief, the Township cites both Defendant’s Answer to Plaintiff’s Motion for Partial
Summary Judgment and the Reply Brief to Plaintiff, T-Mobile Central, LLC’s Answer to Defendant
Charter Township of West Bloomfield’s Motion for Summary Judgment to support these three positions.
Appellant Br. at 31–32. The cited sections of the district-court filings included no citations to the record
or any exhibits. These citations are inapposite for purposes of appellate review.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 14
5. Topography of the proposed facility location in relation to other
facilities with which the proposed facility is to operate.
6. Other specifically identified reason(s) creating facility need.
The reason stated in the record with respect to this ground is that “T-Mobile has not
presented a sufficient need to build the towers [sic].”
The only evidence in the record that the Township cites to support the assertion
that there was not a sufficient need for the tower was testimony from Mr. Dave Crook
at the February 24, 2009, Planning Commission meeting.9 Mr. Crook stated that the
proposed facility would only address 15% of T-Mobile’s coverage problem. Mr. Crook
provided no explanation of how he reached this number, nor did he dispute any of the
facts in the RF engineer’s report. Nothing in the record suggests what qualifications Mr.
Crook possessed or whether he had any expertise to opine on the coverage gap in the
area. His ostensibly lay opinion is not substantial evidence. MIOP, Inc. v. City of Grand
Rapids, 175 F. Supp. 2d 952, 956–57 (W.D. Mich. 2001) (citing Telespectrum, 227 F.3d
at 424) (“Instead, the cases cited by the Sixth Circuit remark that opinion is not sufficient
to meet the substantial evidence requirement. Consistent with Sixth Circuit precedent,
this Court does not find lay opinion evidence sufficient to satisfy the substantial
evidence requirement.”).
To the contrary, based on the terms of the Township’s own zoning ordinance, T-
Mobile introduced voluminous amounts of evidence to support its position that there was
a sufficient need for the tower. The engineer’s report went through each of the six
factors listed in the ordinance and explained why the proposed facility met each
requirement: (1) the proposed facility is in close proximity to major thoroughfares in the
area; (2) the surrounding area is “heavily populated by subdivisions on both sides of the
roads”; (3) the area is “composed of major township roads and an established residential
9
It is unclear if the Board of Trustees voted on August 3, 2009, based on the comments made to
the Township Planning Commission on February 24, 2009, or if the Board only considered the
recommendation made by the Township Planning Commission. In any event, the comments made at the
February 24, 2009, meeting are part of the record that this court can consider on appeal. This court
“examine[s] the evidence as a whole, taking into account whatever in the record fairly detracts from its
weight.” Telespectrum, 227 F.3d at 423.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 15
population”; (4) “topography and the dense population of all types of trees do cause
considerable signal interference in the area”; (5) “it’s very difficult to find open level
ground upon which to build such a facility”; and (6) noting that the lack of “coverage in
this area is a long-standing issue,” this proposal would “not only fill coverage gaps for
in-car usage . . . [but also for] in-home coverage.” These arguments were supported by
detailed reports and coverage maps. There is not substantial evidence in the record to
support the Township’s denial of the application with respect to need.
4
Because the five stated reasons for denial of T-Mobile’s application were not
supported by substantial evidence, the district court correctly found that the Township’s
decision violated 47 U.S.C. § 332(c)(7)(B)(iii).
Summary judgment was appropriate for this claim.
III
A
Next, we consider whether the Township’s denial of T-Mobile’s application
violated 47 U.S.C. § 332(c)(7)(B)(i)(II), which provides that “[t]he regulation of the
placement, construction, and modification of personal wireless service facilities by any
State or local government or instrumentality thereof shall not prohibit or have the effect
of prohibiting the provision of personal wireless services.” (emphasis added). The
construction of this statute presents a question of first impression for this circuit.
As a threshold matter, we must first determine whether the denial of a single
application from T-Mobile can constitute an effective prohibition. The Township places
great stock in precedents from the Fourth Circuit, which has held that only a general,
blanket ban on the construction of all new wireless facilities would constitute an
“impermissible prohibition of wireless services under the TCA.” MetroPCS, 400 F.3d
at 730 (citing AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428
(4th Cir. 1998) (holding that only “blanket prohibitions” and “general bans or policies”
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 16
affecting all wireless providers count as effective prohibition of wireless services under
the TCA)).
However, the large majority of circuits have rejected this approach. Most
recently, the Ninth Circuit noted that, under such a strict construction, “persistent
coverage gaps can never constitute a prohibition under the statute—courts must ask only
whether local governments have (effectively) banned wireless services altogether. . . .
The language of the TCA, while sparse, does not dictate such a narrow interpretation
even under a plain meaning approach.” MetroPCS, 400 F.3d at 730; see also Second
Generation Props., LP v. Town of Pelham, 313 F.3d 620, 629 (1st Cir. 2002) (holding
that the clause “is not restricted to blanket bans on cell towers” and that “[t]he clause
may, at times, apply to individual zoning decisions.”); Voicestream Minneapolis, Inc.
v. St. Croix Cnty., 342 F.3d 818, 830 (7th Cir. 2003); APT Pittsburgh Ltd. P’ship v. Penn
Twp. Butler Cnty., 196 F.3d 469, 479–80 (3d Cir. 1999); Sprint Spectrum, L.P. v.
Willoth, 176 F.3d 630, 640 (2d Cir. 1999). Judge Cudahy in MetroPCS formulated a
two-part test to consider whether the denial of an application amounts to an effective
prohibition: there must be (1) a “showing of a ‘significant gap’ in service coverage and
(2) some inquiry into the feasibility of alternative facilities or site locations.” MetroPCS,
400 F.3d at 731. Both the Township and T-Mobile urge this court to adopt this test.
The statute itself refers to actions that “have the effect of prohibiting the
provision of personal wireless services.” (emphasis added.) Not simply prohibiting it,
but effectively prohibiting it. Thus, actions short of a complete prohibition could have
the effect of improperly hindering the construction of cellular towers. The cramped
reading of the Fourth Circuit—which requires a blanket ban to trigger a violation of the
statute—seems inconsistent both with the plain text of the statute as well as the broader
goal of the TCA to promote the construction of cellular towers. We now adopt the
MetroPCS standard and hold that the denial of a single application can constitute a
violation of this portion of the Act.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 17
B
1
Next, we must determine, as a matter of first impression, whether the “significant
gap” in service focuses on the coverage of the applicant provider (T-Mobile in this case)
or whether service by any other provider (Verizon, AT&T, Sprint, etc.) is sufficient.
That is, if an incumbent provider has coverage in a given area but a new provider
seeking to construct a wireless facility does not, does a “significant gap” in coverage
exist? The Second and Third Circuits have held that no “significant gap” exists if any
“one provider” is able to serve the gap area in question. See, e.g., APT Pittsburgh,
196 F.3d at 478–80; Willoth, 176 F.3d at 643. Likewise, the Fourth Circuit adopted the
“one provider rule,” holding that allowing carriers an individualized cause of action
“would effectively nullify local authority by mandating approval of all (or nearly all)
applications.” AT&T Wireless, 155 F.3d at 428. In other words, under this approach,
if Verizon has coverage in an area but T-Mobile does not, T-Mobile cannot claim to
have a service gap.
The Ninth Circuit rejected the “one provider” rule and adopted a standard that
considers whether “a provider is prevented from filling a significant gap in its own
service coverage.” MetroPCS, 400 F.3d at 733. The First Circuit has also adopted this
rule and observed that “[t]he fact that some carrier provides some service to some
consumers does not in itself mean that the town has not effectively prohibited services
to other consumers.” Second Generation Props., 313 F.3d at 634. Under this approach,
if Verizon had coverage in an area but T-Mobile did not, T-Mobile could still claim to
have a service gap.
In 2009, the FCC issued a Declaratory Ruling that explained that the effective
prohibition provision requires only a showing that a carrier has a “significant gap” in its
own service coverage—the approach of the First and Ninth Circuits:
While we acknowledge that this provision could be interpreted in the
manner endorsed by several courts [(the Second, Third, and Fourth
Circuits)]—as a safeguard against a complete ban on all personal
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 18
wireless service within the State or local jurisdiction, which would have
no further effect if a single provider is permitted to provide its service
within the jurisdiction—we conclude that under the better reading of the
statute, this limitation of State/local authority applies not just to the first
carrier to enter into the market, but also to all subsequent entrants.
In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B),
24 FCC Rcd. 13994, ¶ 57 (2009). The FCC found persuasive the First Circuit’s
reasoning:
We reach this conclusion for several reasons. First, our interpretation is
consistent with the statutory language referring to the prohibition of “the
provision of personal wireless services” rather than the singular term
“service.” As the First Circuit observed, “[a] straightforward reading is
that ‘services’ refers to more than one carrier. Congress contemplated
that there be multiple carriers competing to provide services to
consumers.”
Id. ¶ 58 (quoting Second Generation Props., 313 F.3d at 634). The FCC expressly
rejected the “blanket ban” approach adopted by the Second, Third, and Fourth Circuits:
“Third, we find unavailing the reasons cited by the Fourth Circuit (and some other
courts) to support the interpretation that the statute only limits localities from prohibiting
all personal wireless services (i.e., a blanket ban or ‘one-provider’ approach).” Id. ¶ 60.
From the perspective of a customer who has poor coverage with T-Mobile in a certain
area, it is little consolation that another provider, Verizon for example, may have good
service in the same area.
The Eastern District of Michigan found this FCC ruling dispositive in holding
that the “significant gap” refers only to a carrier’s own service, not that of any carrier.
T-Mobile Cent. LLC v. City of Fraser, 675 F. Supp. 2d 721, 729 (E.D. Mich. 2009)
(noting that “the Sixth Circuit has not spoken on this issue,” but acknowledging the
Declaratory Ruling and concluding that “the Court is not required to consider whether
other carriers provide service in the area of the gap”). In light of the FCC’s endorsement
of the standards used by the First and Ninth Circuits, we now adopt this approach.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 19
2
The analysis of whether a significant gap in coverage existed closely tracks our
earlier discussion about whether T-Mobile demonstrated a need to build the facility. The
Township raises two of the same three arguments to assert that T-Mobile failed to
establish a coverage gap. First, that “the record was devoid of any evidence of actual
customer complaints,” and second, that the report was “not based upon any empirical
data.” Appellant Br. at 38.10 Again, the Township merely cites its own briefs to support
these arguments.
First, there is no requirement under federal or state law that actual customer
complaints need to be submitted to demonstrate a coverage gap. Second, it is unclear
exactly what the Township means by asserting that the coverage maps were not based
on any empirical data. The engineer’s report was replete with coverage maps,
measurements of signal strengths, and other calculations. The Township introduced no
evidence into the record to show that the gap was not significant beyond general
complaints and comments from citizens that other wireless carriers had good coverage
in that area. In fact, several residents acknowledged that T-Mobile had poor coverage
or “dead zones” in the area.
T-Mobile introduced into the record RF propagation maps and drive test data,
along with a report by an RF engineer (which is discussed in detail supra Part II.B.3.).
These types of evidence are suitable to support a claim for a substantial gap in coverage.
See, e.g., MetroPCS, Inc. v. City & Cnty. of San Francisco, 2006 WL 1699580, at *11
(N.D. Cal. June 16, 2006) (finding that propagation maps can demonstrate the existence
of a coverage gap). T-Mobile claims that the relevant evidence shows that the gap is
“significant” because the “gap area includes both a major commuter highway and fully
developed residential areas.” As discussed in Part II.B.3 above, both of these assertions
are amply supported by the RF engineer’s affidavit.
10
Here, the Township does not make the third argument—“the maps indicate that the proposed
tower would do nothing to improve coverage to the south and east, or anything greater than about 15%.”
In any event, that unsubstantiated argument is without merit, as discussed supra Part II.B.3.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 20
Based on the record, we find that the denial of T-Mobile’s application “prevented
[T-Mobile] from filling a significant gap in its own service coverage.” MetroPCS,
400 F.3d at 733.
C
The second part of the MetroPCS inquiry focuses on whether there are feasible
alternate locations. “Under all existing versions of the ‘significant gap’ test, once a
wireless service provider has demonstrated that the requisite significant gap in coverage
exists, it must then make some showing as to the intrusiveness or necessity of its
proposed means of closing that gap.” MetroPCS, 400 F.3d at 734. The circuits split at
this fork:
The Second and Third Circuits require the provider to show that ‘‘the
manner in which it proposes to fill the significant gap in service is the
least intrusive on the values that the denial sought to serve.’’ Penn
Township, 196 F.3d at 480 (emphasis added); see also Omnipoint, 331
F.3d at 398; Unity Township, 282 F.3d at 266; Willoth, 176 F.3d at 643.
The First and Seventh Circuits, by contrast, require a showing that there
are ‘‘no alternative sites which would solve the problem.’’ Second
Generation Props., 313 F.3d at 635; see also St. Croix County, 342 F.3d
at 834–35 (adopting the First Circuit test and requiring providers to
demonstrate that there are no ‘‘viable alternatives’’). . . .
MetroPCS, 400 F.3d at 734. The Ninth Circuit adopted the “least intrusive” standard.
Id. at 735. Judge Cudahy found the precedents from the First and Seventh Circuit “too
exacting.” Id. at 734. The Second and Third Circuit’s “least intrusive” standard “allows
for a meaningful comparison of alternative sites before the siting application process is
needlessly repeated.” Id. at 734–35.
We agree with Judge Cudahy and adopt the “least intrusive” standard from the
Second, Third, and Ninth Circuits. It is considerably more flexible than the “no viable
alternatives” standard, as a carrier could endlessly have to search for different,
marginally better alternatives. Indeed, in this case the Township would have had T-
Mobile search for alternatives indefinitely.
No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 21
Under the “least intrusive” standard, the analysis is straightforward, and T-
Mobile satisfies its burden. See Omnipoint, 331 F.3d at 398 (noting that the “least
intrusive” standard “will require a showing that a good faith effort has been made to
identify and evaluate less intrusive alternatives, e.g., that the provider has considered
less sensitive sites, alternative system designs, alternative tower designs, placement of
antennae on existing structures, etc.”). T-Mobile made numerous good-faith efforts to
identify and investigate alternative sites that may have been less intrusive on the “values
that the denial sought to serve.” Penn Twp., 196 F.3d at 480. Specifically they
considered building a monopole near the West Hills High School and on a water tower
at the Knollwood Country Club. A facility at the High School would have been
significantly more intrusive to the values of the community, as demonstrated by the
widespread opposition to that proposal. Also, T-Mobile determined that a facility at the
Knollwood Country Club location would have been too far away from the area with
weak service and would not have resolved the coverage gap. The Township suggested
no other alternatives beyond the two already proposed. This evidence is sufficient to
make the requisite “showing as to the intrusiveness or necessity of its proposed means
of closing that gap.” MetroPCS, 400 F.3d at 734.
The Township’s decisions had “the effect of prohibiting the provision of personal
wireless services” and thus violated 47 U.S.C. § 332(c)(7)(B)(i)(II).
IV
Remaining is the state-law claim, M.C.L. 125.3504, which the district court
declined to address, finding that the violation of the Telecommunications Act renders
the issue moot. Because we hold that the Township’s actions violated the
Telecommunications Act, we also need not address the state-law claim.
V
The judgment of the district court is AFFIRMED.