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Full Opinion
United States Court of Appeals
For the First Circuit
No. 08-2491
OMNIPOINT HOLDINGS, INC.,
Plaintiff, Appellee,
v.
CITY OF CRANSTON; THE ZONING BOARD OF REVIEW OF THE CITY OF
CRANSTON; JOY MONTANARO, Member, City of Cranston Zoning Board of
Review; EDWARD DIMUCCIO, Member, City of Cranston Zoning Board of
Review; CURTIS PONDER, Member, City of Cranston Zoning Board of
Review; FRANK CORSO III, Member, City of Cranston Zoning Board of
Review; and DONALD CURRAN, Member, City of Cranston Zoning Board
of Review,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Gajarsa* and Lipez, Circuit Judges.
Jeffrey S. Michaelson with whom Michaelson & Michaelson were
on brief for appellants.
William A. Worth with whom Thomas M. Elcock and Prince, Lobel,
Glovsky & Tye LLP were on brief for appellees.
November 3, 2009
*
Of the Federal Circuit, sitting by designation.
LYNCH, Chief Judge. In this case a wireless carrier was
denied a variance and special use permit by the Cranston Zoning
Board of Review to build a wireless communications tower in
Cranston, Rhode Island. The carrier had so applied in order to
remedy a significant gap it found in coverage.
When the carrier sought federal court review of the
denial, the city and zoning board countered that the zoning board's
decision was not a "final action" because limited state court
review was available. The district court rejected the argument.
Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, 2007 WL
2050316, at *4-5 (D.R.I. July 12, 2007) (order denying motion to
dismiss) (City of Cranston I). After a two-day bench trial, the
court granted judgment for the plaintiff. Omnipoint Holdings, Inc.
v. City of Cranston, No. 06-531, slip op. at 8, (D.R.I. Oct. 23,
2008) (City of Cranston II). It held that the town's denial of the
permits constituted an effective prohibition of service in
violation of § 332(c)(7)(B)(i)(II) of the Telecommunications Act of
1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56 (codified as
amended in scattered sections of 47 U.S.C.). Id. at 2, 8.
We now affirm. On an issue of first impression in the
circuit courts, we hold that the zoning board's decision was a
"final action" for purposes of § 332(c)(7)(B)(v) of the TCA. We
also reject the defendants' claims that the court erred in finding
that the zoning board's decision "ha[d] the effect of prohibiting
-2-
the provision of personal wireless services." 47 U.S.C.
§ 332(c)(7)(B)(i)(II).
I.
We recite the facts in the trial record in the light most
favorable to the verdict. Marcano Rivera v. Turabo Medical Center
P'ship, 415 F.3d 162, 165 (1st Cir. 2005).
T-Mobile USA, Inc. ("T-Mobile") has a Federal
Communications Commission ("FCC") license to operate a digital
personal communications service ("PCS") wireless network at 1900
megahertz in Rhode Island under which Omnipoint, T-Mobile's wholly
owned subsidiary, operates. Omnipoint provides wireless service to
customers through a network of antennae mounted on towers or other
structures, often called wireless facilities, that broadcast
signals between towers and to customers' wireless phones and
devices. When Omnipoint realizes that an area within its network
lacks sufficient coverage for customers to make and maintain calls
reliably, it tries to remedy the coverage gap by building a new
facility.
The key to coverage is having a strong-enough signal
level for customers to maintain contact with the network so they
can make and maintain calls. Signal level, the strength of the
radio signal customers' devices receive, is measured in negative
-3-
decibels per milliwatt ("dBm").1 The nature of Omnipoint's digital
PCS network makes keeping signal levels strong more difficult than
if it had provided analog-based cellular service. PCS towers
broadcast lower signals at a much higher frequency, so those
signals cover a smaller area, usually about 1.5 miles.
Consequently, PCS providers must build a network of towers
relatively near each other, creating an overlapping grid of signals
from the towers resembling a honeycomb. For example, Omnipoint has
at least sixteen towers within four miles of the proposed tower at
issue in this case.
Because its customers value reliable network coverage,
Omnipoint has established a national goal of 95 percent reliability
for the network, meaning that customers should be able to make and
maintain 95 percent of their calls. To meet this goal, Omnipoint
has established -84 dBm as its minimum signal strength for in-
vehicle coverage nationwide. Federal law does not require any
specific signal level; Omnipoint has set high standards to satisfy
its customers.
Omnipoint first determined that signal levels around
Phenix Avenue in Cranston fell below -84 dBm through a propagation
study, a computer program that predicts signal levels. Phenix
Avenue is heavily traveled because it is a main road connecting
1
Because it is measured in negative figures, the larger
the dBm number, the weaker the signal. Thus a signal strength of
-100 dbm is weaker than a signal of -80 dbm.
-4-
Cranston to the nearby towns of Warwick and Coventry. A consulting
engineer for Omnipoint, Elijah Luutu, determined that Omnipoint
likely needed a new facility in the area to service this traffic.
Later he conducted a drive test, during which he drove a wireless
device around the area and mapped the signals it was receiving,
which confirmed this conclusion. Based on the propagation study,
Luutu designed a "search ring" for Omnipoint staff to find
potential locations for the new facility around November 18, 2003.
Factoring in topography and the height of the area's tree canopy,
Luutu calculated that Omnipoint needed to build or find a ninety-
foot pole for the new facility.
Omnipoint employees examined the search ring for suitable
sites. They looked, in order of preference, for existing towers
belonging to other wireless companies, existing structures to mount
a facility on, and raw land to construct a facility on. They also
considered the ease of building a new facility, the radio frequency
needs of the area, and zoning issues when evaluating candidates.
An employee searched the area and FCC databases and did not find
suitable existing towers, so that option was excluded. He
identified four potential sites: the Cranston Fire Department
Museum, two different sites at the Cranston Country Club, and the
Solid Rock Church. No other structures in the search ring were
tall enough to meet Omnipoint's radio frequency requirements.
Luutu rejected the museum site because it would provide largely
-5-
redundant coverage with another tower without covering most of the
gap.
With the exclusion of the museum site, Omnipoint came
down to three options: an extant utility pole or raw land (to put
up a pole) on the country club's property, or land on the property
of the Solid Rock Church in Cranston. Omnipoint first negotiated
with the country club. Omnipoint needed an easement to install
power lines to the proposed facility on the country club's utility
pole, so it offered the country club first its standard rate of
$1,500 and then its enhanced lease rate of $2,000 per month. The
club rejected both offers on the ground that installing power lines
could damage its golf course's fairways. Omnipoint then offered
the country club both the $1,500 and $2,000 lease rates to build a
facility on the club's raw land. When the club's three owners
could not agree whether to pay the lease proceeds to themselves or
to the club, Omnipoint offered a one-time payment of $25,000 (in
addition to the monthly rate) to whichever owner would agree to the
other side's position. The owners refused to compromise, however,
and Omnipoint abandoned negotiations with the country club.2
Omnipoint then turned to the property of the Solid Rock
Church and offered $1,500 per month to lease the raw land to
construct a ninety-foot tower disguised as a flagpole. The church
2
The record suggests Omnipoint negotiated with the country
club for about five months in total.
-6-
accepted. It is this site which is the subject of this
controversy. The pole was not in conformance with Cranston's
zoning ordinances because, given its height, it was too close to
the property's southern border. Omnipoint and Solid Rock Church
jointly applied for a variance and special use permit on September
21, 2005, almost two years after Omnipoint began searching for a
site.
On November 9, 2005, the City of Cranston Planning
Commission, which may offer nonbinding recommendations to the
zoning board, held a public hearing and issued a written
recommendation that the board deny Omnipoint's application because
Omnipoint did not "demonstrate[] that existing nearby facilities
c[ould not] accommodate the service need." The Cranston Zoning
Board of Review then conducted two public hearings on April 12,
2006, and September 13, 2006. The board issued a written decision
on November 7, 2006, denying Omnipoint's application without then
giving a statement of the reasons for its decision.
II.
Omnipoint sued the city, the zoning board, and all five
members of the zoning board (collectively "Cranston") in federal
district court on December 6, 2006, under the TCA. It claimed that
Cranston had violated the TCA because it had effectively prohibited
the provision of personal wireless services by refusing to grant
-7-
Omnipoint's application.3 Omnipoint sought an injunction requiring
the board to grant Omnipoint's request for a variance and special
use permit and an injunction and order of mandamus ordering the
city of Cranston to issue a building permit for constructing the
tower.
Cranston moved to dismiss Omnipoint's complaint, arguing
that the district court lacked what it referred to as subject
matter jurisdiction. Because Rhode Island law permits parties to
petition the state superior court for limited review of a zoning
board's decision, Cranston contended, the zoning board's decision
was not a "final action" creating federal jurisdiction under
§ 332(c)(7)(B)(v). The district court rejected the argument and
held the board decision was a "final action" and that the TCA
permitted Omnipoint to bypass Rhode Island state court review.
City of Cranston I, 2007 WL 2050316, at *4-5.
The district court held a two-day bench trial on June 27
and July 9, 2008, and heard five witnesses. Gerald Marquis, a real
estate manager for Omnipoint, testified that Omnipoint held an FCC
license to operate at 1900 megahertz and explained that Omnipoint
sets a 95 percent nationwide reliability standard to satisfy
3
Omnipoint also claimed the board failed to support its
decision with substantial evidence because the board gave no
reasons for denying Omnipoint's application. See 47 U.S.C.
§ 332(c)(7)(B)(iii). During litigation Cranston provided Omnipoint
with a comprehensive explanation for the denial that the board kept
on file. In response, Omnipoint has dropped its substantial
evidence claim.
-8-
customers. Marquis also testified to Omnipoint's process for
identifying and remedying gaps in coverage. Two Omnipoint
employees described their efforts to find a location for the new
facility around Phenix Avenue.
Elijah Luutu, who has designed wireless networks as a
radio frequency engineer for twelve years, testified as an expert
witness for Omnipoint. Luutu detailed how Omnipoint calculated -84
dBm as its minimum signal level in vehicles. It began with a
receiver sensitivity--that is, the minimum decibel levels that
mobile devices and base stations need for people to understand
someone on the other line--of -102 dBm based on industry standards.
Omnipoint added attenuation from obstructions that could block a
signal, such as bodies, trees, and buildings, which produced the
-84 dBm figure. According to Luutu, the -84 dBm standard ensured
Omnipoint met its goal of 95 percent reliability.
Luutu also explained how he created a search ring and
evaluated candidates for a facility around Phenix Avenue based on
Omnipoint's specifications. He acknowledged he could have studied
building multiple, smaller sites to cover the gap, but Luutu only
considered building a single tower because Omnipoint instructed him
to. Although no proposed site would fully remedy the coverage gap
around Phenix Avenue, Luutu, accepting that the country club was
unavailable, concluded a tower on the property of the Solid Rock
Church was Omnipoint's best alternative.
-9-
Cranston presented only one witness, David Maxson, whom
it presented as a purported expert. Maxson had never built a
wireless network and most of his training and experience was in
radio broadcasting. He had, however, worked for a wireless company
and had advised municipalities on regulating wireless facilities.
Maxson's testimony went to two points: he contended there was no
gap and, if there were, Omnipoint had alternative solutions. These
conclusions were generally consistent with an earlier affidavit he
had filed. But he admitted that when he assembled that affidavit,
he had never visited the area around Solid Rock Church, had
performed no tests there, and had made no computer studies to
support his opinions in the affidavit.
Maxson attacked how Omnipoint established its standard
for reliable network coverage. He contended that mobile devices
receive reliable signals below -84 dBm, but Omnipoint used that
overly conservative figure primarily because its calculations were
based on an outdated figure for receiver sensitivity and because it
double-counted signal loss from a user's body. Maxson opined that
Omnipoint could achieve reliable coverage using a lower signal
standard. But he relied only on tests he had performed on
Omnipoint networks in other areas. And Maxson never proposed an
alternative figure for reliable coverage.
Maxson next said there were several alternatives to
building a ninety-foot tower on church property, including placing
-10-
antennae on other utility poles around Phenix Avenue or another
carrier's tower located in a West Warwick neighborhood Omnipoint
employees had never heard of. He primarily opined that Omnipont
should have considered building more than one facility to cover the
Phenix Avenue gap. Maxson proposed three multisite solutions:
building one smaller tower and a series of smaller facilities,
called microcells, to supplement coverage; building a series of
microcells; and building a distributed antenna system ("DAS"), in
which fiberoptic cables connect a series of antennae mounted on
utility poles.
Maxson gave vague details on the feasibility of these
proposals, however. He did not reconcile his proposals with
technology Omnipoint currently uses. On cross examination he
acknowledged the DAS mode is not wireless--it requires cables--and
no DAS systems existed in the Phenix Avenue area. He also did not
explain how the microcell solutions would work with Omnipoint's
current grid of towers or with the lower PCS signal. And Maxson
conceded that he did not investigate whether other sites he
suggested were available to Omnipoint or could even support the
infrastructure he was envisioning. He identified only general
locations to build facilities, such as "near the golf course," on
"any of a number of those transmission line poles," and "on the
other side of the ridge from Solid Rock Church." And Maxson
-11-
performed no testing to show whether these alternative designs
actually would cover the gap around Phenix Avenue.
On October 23, 2008, the district court entered judgment
for Omnipoint. City of Cranston II, No. 06-531, slip op. at 8.
The court explained that Omnipoint had met its burden to show (1)
that Cranston's zoning decision prevented Omnipoint from closing a
"significant gap" in coverage and (2) that further reasonable
efforts to find an alternative solution would be fruitless. Id. at
2, 8. The court rejected Maxson's testimony: "Taking into account
Maxon's [sic] dearth of experience in designing wireless networks
and his failure to conduct any testing before rendering his
opinions," it found that Maxson's conclusions were "completely
unreliable and unpersuasive." Id. at 7. The court then made two
findings of fact:
1. There is a significant gap in
Plaintiff's coverage area along Phenix
Avenue in Cranston as mapped and tested
by Luutu.
2. The only feasible site available to
Plaintiff is the site at the Solid Rock
Church where the construction of a 90
foot monopole will provide coverage in
the gap area.
Id. Cranston timely appealed to this court, and we affirm.
-12-
III.
A. The Zoning Board Decision Was a "Final Action" under the
TCA
Cranston makes a novel argument that the zoning board's
decision is not a "final action" by a "State or local government"
under § 332(c)(7)(B)(v) of the TCA.4 We review the district
court's decision de novo because it is an issue of law, Daggett v.
Comm'n on Governmental Ethics and Election Practices, 172 F.3d 104,
109 (1st Cir. 1999), and we affirm.
Section 332(c)(7) of the TCA, entitled "Preservation of
local zoning authority," allows state and local governments to
apply their zoning regulations to the construction of wireless
facilities, subject to five substantive and procedural limitations.
4
Cranston frames this as a question of whether the federal
court had "subject matter jurisdiction," which is a questionable
articulation. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510
(2006) ("This Court, no less than other courts, has sometimes been
profligate in its use of the term [jurisdiction]."); Eberhart v.
United States, 546 U.S. 12, 15-16 (2005) (per curiam); Scarborough
v. Principi, 541 U.S. 401, 413-14 (2004); Kontrick v. Ryan, 540
U.S. 443, 454-55 (2004)("Clarity would be facilitated if courts and
litigants used the label 'jurisdictional" not for claim-processing
rules, but only for prescriptions delineating the classes of cases
(subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court's adjudicatory authority.");
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90-91
(1998).
The relevant section of the TCA, 47 U.S.C. § 332(c)(7)(B)(v),
does not clearly state that the final action requirement is
jurisdictional. Under Arbaugh, this is a highly relevant
consideration. 546 U.S. at 514-16; accord Chao v. Hotel Oasis,
Inc., 493 F.3d 26, 33 (1st Cir. 2007). Given our holding, however,
we need not decide whether the issue is one of jurisdiction.
-13-
47 U.S.C. § 332(c)(7); see also Nat'l Tower, LLC v. Plainville
Zoning Bd. of Appeals, 297 F.3d 14, 19-20 & n.3 (1st Cir. 2002)
(listing these limitations). It creates a federal cause of action:
"Any person adversely affected by any final action or failure to
act by a State or local government or any instrumentality thereof
that is inconsistent with" those five limitations may sue in state
or federal court within thirty days to enforce the TCA's
provisions. 47 U.S.C. § 332(c)(7)(B)(v).
Cranston implicitly concedes that zoning board decisions
often would be final actions under the TCA. But it argues that a
Rhode Island law permitting state court review of zoning board
decisions creates an exception to that rule precisely because the
statute limits the scope of court review and does not provide full
court review of zoning board decisions.5 Cranston argues that such
limited review makes state court proceedings part of a
"comprehensive statutory scheme" for state zoning decisions that is
not final until after state court review finishes. Omnipoint
5
Rhode Island has a separate statute governing state court
review of zoning decisions. It provides, "An aggrieved party may
appeal a decision of the zoning board of review to the superior
court . . . within twenty (20) days after the decision has been
recorded and posted." R.I. Gen. Laws § 45-24-69(a). Under Rhode
Island law, a state court may reverse the zoning board only on six
limited grounds and cannot "substitute its judgment for that of the
zoning board of review as to the weight of the evidence on
questions of fact." Id. § 45-24-69(d). Notably, this statute does
not even mandate state court review. See id. § 45-24-69(a)
(stating that parties "may" seek state court review of zoning board
decisions).
-14-
rejoins that it did not need to sue in state court because the
zoning board's decision was a final action by an instrumentality of
a local government.
The TCA does not define "final action." The parties do
not dispute the Cranston Zoning Board of Review is a "State or
local government" or "any instrumentality thereof." See Black's
Law Dictionary 764 (9th ed. 2009) (defining local government as
"[t]he government of a particular locality, such as a city"); id.
at 870 (defining "instrumentality" as "[a] means or agency through
which a function of another entity is accomplished, such as a
governing body").
When interpreting terms within the TCA, we consider its
plain text and "design, structure, and purpose." Cablevision of
Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d 88, 101 (1st Cir.
1999) (quoting O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.
1996)) (internal quotation marks omitted). The Cranston Zoning
Board of Review's decision falls within the usual meaning of final
action set forth in the language of 47 U.S.C. § 332(c)(7)(B)(v).
The terms "final" and "final action" have special meaning in the
law, and we assume Congress knew the "content of background law"
when legislating. In re Rivera Torres, 432 F.3d 20, 25 (1st Cir.
2005). Generally a decision is final if it is "concluded;" that
is, if it does not "requir[e] any further judicial action by the
court that rendered the judgment to determine the matter litigated"
-15-
and the decision can be appealed. Black's Law Dictionary 705 (9th
ed. 2009).
The well-settled rule in administrative law is that a
"final agency action" is one that "mark[s] the consummation of the
agency's decisionmaking process." Whitman v. Am. Trucking Ass'ns,
531 U.S. 457, 478 (2001) (emphasis added) (quoting Bennett v.
Spear, 520 U.S. 154, 177-78 (1997)) (internal quotation marks
omitted). It means a "final determination" in a case by an
administrative agency; that is, whether the agency "rendered its
last word on the matter." Harrison v. PPG Indus., Inc., 446 U.S.
578, 586 (1980) (interpreting what is a "final action" by the
Environmental Protection Agency under the Clean Air Act); accord
Whitman, 531 U.S. at 478 (same). Only after an agency's final
action may courts review the agency's decision. 5 U.S.C. § 704;
Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 659 (2007).
A "final action . . . by a . . . local government or any
instrumentality thereof" must be one that marks the consummation of
the instrumentality's decisionmaking process. In this case there
is no dispute that the zoning board is a discrete "instrumentality"
of Cranston, separate and distinct from the Rhode Island Superior
Court. The parties agree Cranston's zoning board had concluded its
decisionmaking process before that instrumentality and could take
no further action. The zoning board's decision was final.
-16-
Sprint Spectrum L.P. v. City of Carmel, 361 F.3d 998 (7th
Cir. 2007), on which Cranston relies, undercuts Cranston's argument
and supports our analysis. The court held a carrier's claim was
not ripe because the carrier sued in federal court when it still
had further recourse before the local zoning board. Id. at 1004-
05; accord Nextel Commc'ns of Mid-Atl., Inc. v. City of Margate,
305 F.3d 188, 193-94 (3d Cir. 2002). Indeed the Sprint Spectrum
court observed that the carrier would not need to "exhaust[] all
state judicial remedies before bringing suit in federal court."
Id. at 1001 n.2.
Cranston's reading would frustrate the TCA's overall
statutory scheme and purpose. The Act stresses the need for
speedily deploying telecommunications and seeks to get prompt
resolution of disputes under the Act. Congress enacted the TCA "to
promote competition and reduce regulation in order to secure lower
prices and higher quality services for American telecommunications
consumers and encourage the rapid deployment of new
telecommunications technologies." 110 Stat. at 56 (emphasis
added). Under § 332(c)(7)(B)(v), parties may sue within thirty
days of a final action, and courts must "hear and decide such
action[s] on an expedited basis." To hold Omnipoint nevertheless
needed to sue in state court would undermine the TCA's goals by
imposing a new regulatory obstacle to providing consumers with
wireless service.
-17-
To the extent § 332(c)(7)(B)(v), read in light of its
language, context, and purpose, could be thought to be ambiguous,
the legislative history confirms that a zoning board's decision is
a final action and Omnipoint did not need to seek judicial review
under state law of that board decision. The House Conference
Report defined a final action as a "final administrative action at
the State or local government level so that a party can commence
action . . . rather than waiting for the exhaustion of any
independent state court remedy otherwise required."
Telecommunications Act of 1996, H.R. Rep. No. 104-458, at 209
(1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 124, 223.
B. The District Court Did Not Err by Granting Judgment to
Omnipoint after Trial
The district court found that Cranston had violated the
TCA's provision that local zoning authorities may not "prohibit or
have the effect of prohibiting the provision of personal wireless
services." 47 U.S.C. § 332(c)(7)(B)(i)(II). In effective-
prohibition cases we review whether the district court applied the
proper legal standards de novo. Nat'l Tower, 297 F.3d at 22. The
district court correctly cited the legal standards in this circuit.
But whether, under the circumstances, an effective prohibition has
occurred is a factual issue; we review how the district court
resolved it for clear error. Id.; accord Omnipoint Commc'ns
Enters., L.P. v. Zoning Hearing Bd. of Easton Twp., 331 F.3d 386,
392 (3d Cir. 2003) (on panel rehearing).
-18-
Beyond the statute's language, the TCA provides no
guidance on what constitutes an effective prohibition, so courts,
including this one, have added judicial gloss. E.g., T-Mobile USA
v. City of Anacortes, 572 F.3d 987, 995-98 (9th Cir. 2009);
VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818,
833, 834-35 (7th Cir. 2003); Second Generation Props., LP v. Town
of Pelham, 313 F.3d 620, 631-35 (1st Cir. 2002); Sprint Spectrum
L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999); APT Pittsburgh
Ltd. P'ship v. Penn Twp. Butler County, 196 F.3d 469, 480 (3d Cir.
1999); Town of Amherst v. Omnipoint Comm'cns Enters., Inc., 173
F.3d 9, 14-15 (1st Cir. 1999); see also Willoth, 176 F.3d at 641
(noting, when interpreting this provision, that it "would be [a]
gross understatement to say that the Telecommunications Act of 1996
is not a model of clarity." (quoting AT & T Corp. v. Iowa Utils.
Bd., 525 U.S. 366, 397 (1999)) (alteration in original)).
The carrier has the burden to show an effective
prohibition has occurred. City of Anacortes, 572 F.3d at 995;
USCOC of Greater Iowa, Inc. v. Zoning Bd. of Adjustment, 465 F.3d
817, 825 (8th Cir. 2006); St. Croix County, 342 F.3d at 833, 835;
USCOC of Va. RSA #3 v. Montgomery County Bd. of Supervisors, 343
F.3d 262, 268 (4th Cir. 2003); Second Generation Props., 313 F.3d
at 629; Easton Twp., 331 F.3d at 397. When a carrier claims an
individual denial is an effective prohibition, virtually all
circuits require courts to (1) find a "significant gap" in coverage
-19-
exists in an area and (2) consider whether alternatives to the
carrier's proposed solution to that gap mean that there is no
effective prohibition.6 MetroPCS v. City and County of San
Francisco, 400 F.3d 715, 731 (9th Cir. 2005); see, e.g., Second
Generation Props., 313 F.3d at 631, 635. Circuits disagree,
however, in the language they use to measure when a significant gap
exists and about the inquiry into alternative solutions.
Courts do agree that both of these determinations are
fact-bound. Second Generation Props., 313 F.3d at 631 ("The
question whether an individual denial is an effective prohibition
is largely fact-driven."); accord 360 Degrees Commc'ns, 211 F.3d at
87 (describing these cases as requiring "essentially a fact-bound
inquiry"); see also Penn Twp., 196 F.3d at 480 (explaining courts
may consider, "e.g., [if] the provider has considered less
sensitive sites, alternative system designs, alternative tower
designs, placement of antennae on existing structures, etc.");
MetroPCS, 400 F.3d at 733 (calling the significant-gap test an
"extremely fact-specific" inquiry that "def[ies] any bright-line
legal rule").
6
The Fourth Circuit has rejected any standard beyond the
language in the statute. 360 Degrees Commc'ns Co. of
Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 87 (2000). But
it has applied a version of this test in at least one case. See
id. at 87-88 (assuming a "significant gap[]" existed and holding
that the carrier failed to show no alternatives were feasible).
-20-
Courts ultimately decide these cases based, not on
bright-line legal standards, but on the facts in the record. See,
e.g., City of Anacortes, 572 F.3d at 998-99; Second Generation
Props., 313 F.3d at 635; USCOC of Va. RSA #3, 343 F.3d at 268-69;
St. Croix County, 342 F.3d at 836; Willoth, 176 F.3d at 643-44;
Town of Amherst, 173 F.3d at 14.
1. Existence of a Significant Gap in Coverage
Through the significant-gap analysis courts "determine
whether a coverage problem exists at all." Second Generation
Props., 313 F.3d at 631. In this circuit we consider whether a
significant gap in coverage exists within the individual carrier's
network. Metheny v. Becker, 352 F.3d 458, 461 & n.2 (1st Cir.
2003); Second Generation Props., 313 F.3d at 632-35. We have
rejected the Third Circuit's rule that considers not the individual
carrier's network but whether any carrier provides service to an
area. Cf. Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 265 (3d
Cir. 2002). In our view, the Third Circuit rule prevents customers
in an area from having a choice of reliable carriers and thus
undermines the TCA's goal to improve wireless service for customers
through industry competition. Second Generation Props., 313 F.3d
at 631, 633. The Ninth Circuit has adopted our approach.
MetroPCS, 400 F.3d at 731-33.
When relevant, courts assessing whether a coverage gap is
significant should consider, inter alia, the physical size of the
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gap, the area in which there is a gap, the number of users the gap
affects, and whether all of the carrier's users in that area are
similarly affected by the gaps. See, e.g., Second Generation
Props., 313 F.3d at 631; see also MetroPCS, 400 F.3d at 733 & n.10;
360 Degrees Commc'ns, 211 F.3d at 87; Cellular Tel. Co. v. Zoning
Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 n.2
(3d Cir. 1999); Willoth, 176 F.3d at 643-44. Also relevant could
be data about percentages of unsuccessful calls or inadequate
service during calls in the gap area. Here, Omnipoint had shown
its need for coverage around Phenix Avenue is significant. It
established Phenix Avenue was a heavily traveled and important
route that connects Cranston to its neighbors.
Cranston argues that the district court measured the
quality of coverage around Phenix Avenue with an improper--and
unfair--yardstick because the court accepted Omnipoint's -84 dBm
standard for reliable service, which Omnipoint had set to satisfy
customers. Cranston asks us to rule that a trial judge errs in
considering the provider's defined level of acceptable service on
the question of the existence of a significant gap. We reject such
bright-line rules. See MetroPCS, 400 F.3d at 733. In this case,
the district court's finding that there was a significant gap in
coverage was quite reasonable, and not clear error, on the
evidence.
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The court did not err by accepting the testimony of
Omnipoint's expert, Elijah Luutu, about a coverage gap around
Phenix Avenue in Cranston, which we described earlier. At trial
and on appeal Cranston has argued that Omnipoint did not meet its
burden because Luutu's testimony was based on the premise that
signal levels below -84 dBm constitute a gap in coverage. But the
record contains no evidence that undercuts that premise, and the
premise was reasonable on its face.
Contrary to Cranston's argument, the district court did
not adopt -84 dBm as a legal standard for whether a coverage gap
exists, and neither do we. The only evidence Cranston presented to
contest Luutu's testimony were Maxson's opinions that Omnipoint's
methodology for calculating and testing coverage gaps was flawed
and its standard for coverage was wrong. But the district court
noted that, unlike Luutu, Maxson lacked experience designing
wireless systems and his opinions were "not based on any actual
measurements or tests he conducted at the site." City of Cranston
II, No. 06-531, slip op. at 7. It thus found Maxson's "conclusions
completely unreliable and unpersuasive." Id.
As the factfinder, it was the district court's
responsibility to determine how much weight to give each expert's
testimony. Bruce v. Weekly World News, Inc., 310 F.3d 25, 30 (1st
Cir. 2002) ("[T]he district court, qua factfinder, was entitled to
make the crucial credibility determination as between the competing
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expert witnesses."); cf. Seahorse Marine Supplies, Inc. v. P.R. Sun
Oil Co., 295 F.3d 68, 81 (1st Cir. 2002) ("The [expert's] ultimate
credibility determination and the testimony's accorded weight are
in the jury's province."). The district court chose to discount
Maxson's testimony based on the quality of his experience and
supporting evidence, and we will not disturb its assessment.7 Cf.
Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 9
(1st Cir. 2001) ("When the factual underpinning of an expert
opinion is weak, it is a matter affecting the weight and
credibility of the testimony--a question to be resolved by the
jury." (quoting Newell P.R., Ltd. v. Rubbermaid Inc., 20 F.3d 15,
21 (1st Cir. 1994) (internal quotation marks omitted)).
2. Alternative Solutions
Once a court has found a coverage gap exists, it must
determine whether local authorities have prevented a carrier from
closing that gap so as to amount to an effective prohibition. See
Second Generation Props., 313 F.3d at 635 (noting even if a gap is
found to exist carriers "must still show that there are no
alternative sites which would solve the problem"). Two
articulations have emerged in the circuits for the second prong of
effective-prohibition claims. This court and the Seventh Circuit
7
Contrary to Cranston's argument, the district court did
not shift the burden of proof to it. The court merely assessed
Maxson's persuasiveness as an expert based on the quality of
support he provided for his opinions.
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have used the language of the "only feasible plan." St. Croix, 342
F.3d 835; Second Generation Props., 313 F.3d at 630; Town of
Amherst, 173 F.3d at 14. The Second, Third, and Ninth Circuits
have articulated the question as whether the proposed solution is
the least-intrusive means. City of Anacortes, 572 F.3d at 995;
Nextel W. Corp., 282 F.3d at 266; Willoth, 176 F.3d at 643. The
Fourth Circuit has held courts should simply apply the language of
§ 332(c)(7)(B)(i)(II) to the facts of a case. 360 Degrees
Commc'ns, 211 F.3d at 87. Nevertheless, in 360 Degrees
Communications, the court quoted our standard from Town of Amherst
to reject one carrier's claim. Id. at 88.
It is unclear how much these different articulations of
the tests truly differ. This court's opinion in Town of Amherst
first used the language of "only feasible plan." In that case we
held that a carrier could claim a single zoning decision
effectively prohibited it from providing wireless service. Town of
Amherst, 173 F.3d at 14. But the carrier had the "heavy" burden
"to show from the language and circumstances not just that this
application has been rejected but that further reasonable efforts
[to find another solution] are so likely to be fruitless that it is
a waste of time even to try." Id. To prevail, the carrier could
not insist on one, ideal way to provide service; the TCA required
it to consider alternatives more palatable to local zoning
authorities. Id. at 14-15. "Were [its] existing proposal the only
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feasible plan," we noted, "then prohibiting its plan might amount
to prohibiting personal wireless service."8 Id.
The underlying question is whether, under the facts of a
case, a zoning decision effectively prohibited providing wireless
service. See 47 U.S.C. § 332(c)(7)(B)(i)(II); Second Generation
Props., 313 F.3d at 630 ("[T]here can be no general rule
classifying whether there is an effective prohibition. It is a
case-by-case determination."); see also 360 Degrees Commc'ns, 211
F.3d at 87 (refusing to adopt one analytic approach for such claims
because doing so would "unduly limit[] what is essentially a fact-
bound inquiry"). When evaluating such claims "we are in the realm
of trade-offs" between the carrier's desire to efficiently provide
8
Courts since have built on this decision. Citing Town of
Amherst, the Second Circuit held that local authorities cannot
reject a carrier's plan that offers "the least intrusive means for
closing a significant gap." Willoth, 176 F.3d at 643. The court
listed "numerous ways [carriers could] limit the aesthetic impact
of a cell site" without sacrificing coverage. Id. The Third and
Ninth Circuits followed Willoth, holding carriers must prove their
solution is "the least intrusive on the values that the denial
sought to serve." Penn Twp., 196 F.3d at 480; MetroPCS, 400 F.3d
at 734-35 (internal quotation marks omitted). The provider must
prove it made "a good faith effort" to "identify and evaluate less
intrusive alternatives." Penn Twp., 196 F.3d at 480. The Seventh
Circuit rejected the least-intrusive-means test, opining it
undermined local autonomy and strayed from the statutory text, and
it instead adopted our feasible-alternative analysis. St. Croix
County, 342 F.3d at 834-35 & n.8 (citing 360 Degrees Commc'ns, 211
F.3d at 87). The Seventh Circuit then applied the Town of Amherst
test to hold there was no effective prohibition when a carrier
produced no evidence it considered alternatives. Id. at 834-36.
The Ninth Circuit, however, adopted the least-intrusive-means test
because it thought the "only feasible plan" test was "too
exacting." MetroPCS, 400 F.3d at 734.
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quality service to customers and local governments' primary
authority to regulate land use. Town of Amherst, 173 F.3d at 15.
A carrier "may think . . . its solution is best," but, "subject to
an outer limit, such choices are just what Congress reserved to the
town" in § 332(c)(7). Id.
The effective prohibition clause does not stand alone; it
is also part of the TCA's larger goal of encouraging competition to
provide consumers with cheaper, higher-quality wireless technology.
See id. at 13. As cell phone use increases, carriers need to build
more facilities, especially in populated areas, to continue
providing reliable coverage, and local regulations can present
serious obstacles.9 See Sw. Bell Mobile Sys., Inc. v. Todd, 244
F.3d 51, 57 (1st Cir. 2001) ("[A]s Congress found, 'siting and
zoning decisions by non-federal units of government [] have created
an inconsistent and, at times, conflicting patchwork of
requirements which will inhibit the deployment of [wireless
9
Local authorities face what commentators call the "not in
my backyard" ("NIMBY") problem: property owners resist new
facilities in populated areas because they find wireless facilities
unsightly and worry facilities lower property values; yet as cell
phone consumers these same people want quality service where they
are most. E.g., D. Hughes, When NIMBYs Attack: The Heights to
Which Communities Will Climb to Prevent the Siting of Wireless
Towers, 23 J. Corp. L. 469, 482-83 (1998); S. Eagle, Wireless
Telecommunications, Infrastructure Security, and the NIMBY Problem,
54 Cath. U. L. Rev. 445, 455-57 (2005). Residents often pressure
town authorities to tighten and strictly enforce zoning
restrictions on wireless facilities, creating numerous pockets of
resistance for wireless carriers. Hughes, supra, at 470-71, 482-
84.
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technology] . . . .'" (quoting Omnipoint Corp. v. Zoning Hearing
Bd. of Pine Grove Twp., 181 F.3d 403, 407 (3d Cir. 1999) (second
alteration in original))); J. Berger, Efficient Wireless Tower
Siting: An Alternative to Section 332(c)(7) of the
Telecommunications Act of 1996, 23 Temp. Envtl. L. & Tech. J. 83,
88 (2004). The themes in the TCA of promoting competition in the
wireless communications market and of relatively speedily
effectuating the purpose of the Act, including the elimination of
significant gaps, underlie the determination of feasibility and
impose their own constraints. Just as carriers must present
evidence of their efforts to locate alternative sites, once they
have done so there are limits on town zoning boards' ability to
insist that carriers keep searching regardless of prior efforts to
find locations or costs and resources spent.
Any feasibility analysis balances these competing
interests. Nat'l Tower, 297 F.3d at 20. A carrier cannot win an
effective-prohibition claim merely because local authorities have
rejected the carrier's preferred solution. Second Generation
Props., 313 F.3d at 635; Town of Amherst, 173 F.3d at 14-15; accord
St. Croix County, 342 F.3d at 834-35. On the other hand, if local
authorities reject a proposal that is "the only feasible plan,"
that denial could "amount to prohibiting personal wireless
service." Town of Amherst, 173 F.3d at 14. The burden is on the
carrier to prove it "investigated thoroughly the possibility of
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other viable alternatives" before concluding no other feasible plan
was available. St. Croix County, 342 F.3d at 834-35.
When we have held the carrier has not met its burden, the
evidence has been essentially undisputed that the carrier had other
alternatives. In Town of Amherst, the carrier "did not present
serious alternatives to the town" other than the most efficient
solution, a network of four 190-foot towers, one located in a
historic district. 173 F.3d at 11, 15. The town, although willing
to allow wireless facilities, opposed the towers' height and some
locations. Id. at 14. We held the carrier did not show it was
entitled to summary judgment because it "practically admitted that
somewhat lower towers were technically feasible" and it was unclear
"that locating a tower within the historic district was technically
essential." Id. at 15. Similarly, in Second Generation
Properties, the carrier presented no explanation why its proposal
was the only feasible site. 313 F.3d at 635. Indeed, the
carrier's "own experts acknowledged that its land was not the only
location where a tower could provide coverage in the alleged gap."
Id. We noted the TCA gives local authorities an opportunity to
consider any feasible alternatives before courts launch "the heavy
artillery of federal preemption." Id. The Seventh Circuit, in St.
Croix, also found a carrier had not met its burden because it
presented no evidence it investigated alternative solutions other
than conclusory statements. 342 F.3d at 835-36.
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Whether the carrier proves an effective prohibition has
occurred is a factual question for the trial court to resolve. See
Second Generation Props., 313 F.3d at 631 (explaining effective-
prohibition claims are "largely fact-driven"). As with most such
questions, the district court may consider a number of facts
relevant to the conclusion it must reach. What facts are relevant
may vary with the case. It is clear that the technical feasibility
of the proposed solution or alternative solutions is important.
See Town of Amherst, 173 F.3d at 15. Town of Amherst does not say
that technical feasibility is the only criterion, nor would we
adopt such a rule. The fact that a carrier's proposed solution to
the gap is technologically optimal does not, under Town of Amherst,
end the inquiry. Nor does the inquiry end with the solution
preferred by town officials other than the zoning board.
Town of Amherst discussed, inter alia, the "overall cost"
to the carrier, whether the solution was technically efficient,
whether other technically adequate solutions were in evidence,
whether the town could prefer other solutions on aesthetic grounds,
and whether local authorities were willing to cooperate with
carriers. See id. at 14-17; see also Second Generation Props., 313
F.3d at 635 ("Nothing in the Town's actions thus far shows an
unwillingness to acknowledge a problem or permit the crafting of a
solution."). Ultimately the question is a practical inquiry into
feasible, available alternatives. See, e.g., City of Anacortes,
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572 F.3d at 997-98 (considering the availability of proposed
alternatives).
In Town of Amherst the carrier's rigid insistence on its
optimal plan proved fatal. By contrast, in this case, Omnipoint
presented evidence its final plan, which was plainly not its
optimal plan, was the only feasible one. In light of evidence of
Omnipoint's efforts to "investigate[] thoroughly the possibility of
other viable alternatives," St. Croix County, 342 F.3d at 834-35,
the district court did not clearly err in finding that constructing
a new tower at the Solid Rock Church site was the only feasible way
to close the Phenix Avenue coverage gap.
The evidence described earlier showed that Omnipoint had
in fact systematically searched for solutions to the gap problem
using technologically reliable criteria and methodologies.
Omnipoint considered different types of solutions: adding to
existing wireless towers; adding to existing structures of the
needed height, including utility poles; and new construction of
facilities on unoccupied land. Further, Omnipoint showed it had
made financial offers according to its usual rates, increased its
rates, and then offered an extraordinary bonus in an effort to
reach a contract with the country club but was unsuccessful. After
Luutu designed the search ring, it took Omnipoint two years to work
through the various options, reach an agreement with the church,
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and apply for a variance. There was no meaningful contrary
evidence.
The trial court could permissibly conclude that
Cranston's proposed alternatives rebutting this evidence were not
feasible. Cranston suggests that Omnipoint was required to go back
to the country club a fourth time to try to make a deal by,
presumably, sweetening the pot further than it had before when it
increased its usual rate and added a bonus payment. That is pure
speculation. Cranston offered no evidence that the divided owners
of the country club would have agreed, particularly as they had
previously rejected any digging up of the fairway, which most of
the proposals entailed. Nor did Cranston offer any evidence that
Omnipoint had been commercially unreasonable. Omnipoint does not
argue, and this case does not turn on, a claim by a carrier that
economic infeasibility alone makes an alternative site unavailable.
The court, having found Maxson's testimony neither
supported by fact nor by experience, was warranted in rejecting his
view that Omnipoint should have adopted an alternative technology
that the company did not use or, in the case of the fire department
museum, that provided largely repetitive coverage with another
tower to solve the gap. On this evidence, the district court did
not err by finding the Solid Rock Church site was Omnipoint's only
feasible option.
Affirmed.
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