6th Circuit Adopts Important Clarifications for Wireless Deployment
On Tuesday, Aug. 21, 2012, the U.S. Court of Appeals for the 6th Circuit issued an opinion in T-Mobile Central, LLC v. Township of West Bloomfield, decision found here, affirming that the Township of West Bloomfield, Mich., violated the federal Communications Act when it denied T-Mobile’s application to install a wireless facility in the Township. The 6th Circuit’s decision is important for the wireless industry on a number of issues, most notably, the court adopts the “least intrusive means” standard for “effective prohibition” claims under Section 332 of the Communications Act.
The case involves the Township’s denial of T-Mobile’s application to construct a new 90-foot wireless facility disguised to look like a pine tree (a “monopine”) at an electric utility site. After the Township denied T-Mobile’s application, T-Mobile filed a complaint in U.S. District Court for the Eastern District of Michigan, claiming that the Township’s denial violated Section 332(c)(7) of the Communications Act because it was not supported by substantial evidence and had the “effect of prohibiting the provision of personal wireless services,” as well as asserting a state law claim. The District Court granted T-Mobile’s motion for partial summary judgment on its two federal claims and found the state law claim to be moot. The Township appealed the District Court’s order.
6th Circuit’s analysis
For the first time, the 6th Circuit addressed the standard for evaluating a claim that a denial has the “effect of prohibiting the provision of wireless services” in violation of Section 332(c)(7)B)(i)(II) of the Communications Act. The 6th Circuit first determined that the denial of a single application to erect a wireless facility can constitute an effective prohibition upon (1) a showing of a “significant gap” in service and (2) some inquiry into the feasibility of alternative facilities or site locations. In so doing, the court adopted the two-part test set forth by the 9th Circuit in MetroPCS, Inc. v. City and Cnty. Of San Francisco, 400 F.3d 715, 723-24 (9th Cir. 2005), and adopted by the majority of other circuits. In adopting the MetroPCS standard, the 6th Circuit expressly rejected outlying precedent from the 4th Circuit that had held that only “blanket prohibitions” and “general bans or policies” on the construction of new wireless facilities can amount to an effective prohibition.
As to the “significant gap” analysis, the 6th Circuit determined that the analysis focuses on the coverage of the applicant wireless provider and not whether existing service by any other provider is sufficient. In so doing, the 6th Circuit rejected the “one provider” rule followed by the 2nd, 3rd, and 4th Circuits, which have held that no “significant gap” exists if any one provider is able to serve the gap area in question. The 6th Circuit acknowledged that the “one provider” rule was rejected by the FCC in a 2009 Declaratory Ruling (known as the “Shot Clock Order,” advisory found here) in favor of the standard adopted by the 9th and 1st Circuits, which considers whether “a provider is prevented from filling a significant gap in its own service coverage.” MetroPCS, 400 F.3d at 733. With this decision, the 6th Circuit is the first circuit court to follow and apply the FCC’s rejection of the one provider rule. Further of note, the 6th Circuit noted that there is no requirement in federal law that requires a provider to submit evidence of consumer complaints in order to justify the existence of the gap in reliable service.
On the question of feasible alternatives, the 6th Circuit again encountered a split among the circuit courts. Notably, the 6th Circuit agreed with the “least intrusive means” standard used by the 9th, 2nd, and 3rd Circuits, which requires a provider to show that the manner in which it proposes to fill the significant gap is the least intrusive on the values that the denial sought to serve. The 6th Circuit also acknowledged that the “least intrusive standard” requires a showing that a “good faith effort” has been made to identify and evaluate less intrusive alternatives. The 6th Circuit found this standard to be more flexible than the “no viable alternatives” standard in the 1st and 7th Circuits, which would require a showing that there are “no alternative sites which would solve the problem.”
The 6th Circuit further affirmed the District Court’s holding that the Township’s denial was not supported by substantial evidence, in violation of Section 332(c)(7)B)(iii) of the Communications Act. The 6th Circuit made several statements of import for future substantial evidence cases. For example, the 6th Circuit clarified that local laws cannot allow a municipality to deny an application based on less than substantial evidence, saying “if the terms of a local zoning ordinance allow a 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.” This emphasizes that while substantial evidence claims generally take state and local law as it stands, with Section 332(c)(7)(B)(iii) Congress imposed a floor for the amount of evidence required to support a denial, and state or local law cannot authorize denial based on less than substantial evidence. In addition, the 6th Circuit holds that substantial evidence must be “substantiated,” and in particular in this case, even though the local ordinance identified aesthetics as a relevant element, generalized complaints about aesthetics that effectively amount to NIMBY (“not in my backyard”) are not substantial evidence.
With this opinion, the 6th Circuit resolved several matters of first impression regarding the standard for evaluating “effective prohibition” claims under the Communications Act. The opinion not only provides significant guidance on such claims for all courts within the 6th Circuit, but also constitutes the first circuit court decision to follow and apply the FCC’s rejection of the one provider rule. Further, the opinion provides additional authority for courts to follow and apply the “least intrusive means” standard. Finally, the 6th Circuit’s holding provides more authority for courts to reject denials issued in response to NIMBY opposition.