OBJECTING TO A PROPOSED CELLTOWER
MAY HAVE BECOME MORE DIFFICULT
“Not In My Backyard” (“NIMBY”) is a statement,
frequently raised as an emotional war cry, by residential property owners in
opposition to a proposed use or other development of nearby property that is
viewed as having potential adverse effects on the value, use or quality of
enjoyment of the residential property. In recent years, a use or development,
which has become a frequent NIMBY target, is the wireless telecommunications
tower, commonly referred to as a “cell tower,” proposed to be located on or
nearby residentially-zoned property. However, a recent FCC Determination and
Federal District Court decision appear to have made a successful objection to a
proposed cell tower more difficult.
Since 1985, there has been a proliferation of
cell towers due primarily to a dramatic increase in the number of cell phone and
wireless subscribers in the U.S., and to the enactment of the Telecommunications
Act of 1996 (“TCA”) by the U.S. Congress.
• The CTIA-The
Wireless Association, the international association for the wireless
telecommunications industry, reports that the number of subscribers in the
United States increased from 340,213 cell phone subscribers in 1985 to more than
285.6 million wireless subscribers in 2009, which is approximately 91% of the
U.S. population. The early cellular telephone service has since been coupled
with PCS (Personal Communications Service) that utilizes digital technology to
provide data transmission, computer networking, wireless internet access and
other related features and services.
• The TCA
deregulated the telecommunications industry and encouraged competition among all
types of communications companies. As a result, the market has seen an influx
of new telecommunication providers.
Municipal Regulation and
Despite its deregulation of the
telecommunications industry, the TCA continues to allow local municipalities to
regulate the location of cell towers and antennae. Current municipal
regulations of telecommunications facilities are usually found in the
municipality’s zoning ordinance. The regulations generally encourage the
placement of antennae on existing structures, such as rooftops of existing
non-residential buildings and water tanks, or the co-location of antennae with
other antennae on existing towers, rather than on new cell towers. If an
existing structure is not available and a new tower is necessary, the
regulations generally encourage the location of the new tower in non-residential
While the TCA allows municipal regulation of
cell tower and antenna location, such regulation is not unrestricted. The TCA
provides that municipalities may not ban telecommunications facilities within
their boundaries. Specifically, the TCA provides, among other things, that the
municipality’s regulations or actions may not prohibit, or have the effect of
prohibiting, the provision of personal wireless services. If the TCA is
violated, an aggrieved telecommunications provider may file a civil action in
federal district court. If the action is successful, the usual remedy is a
court order directing the municipality to issue the necessary permits for the
proposed telecommunications facilities.
In order for a telecommunications provider to
demonstrate that the regulations or actions of a municipality violate the TCA by
prohibiting, or having the effect of prohibiting, the provision of personal
wireless services, the U.S. Court Appeals for the Third Circuit, whose
jurisdiction includes the federal district courts in Pennsylvania, has construed
the TCA as requiring the provider to demonstrate two things: (i) that a
significant gap in service available to remote users exists in the area that the
provider proposes to serve; and (ii) that the proposed manner to fill the gap
will be the least intrusive alternative, including a showing that provider has
made a good faith effort to identify and evaluate less intrusive alternatives
such as less sensitive sites, alternative system designs, alternative tower
designs, and placement of antennae on existing structures.1
The Third Circuit Court has further held that,
in order to demonstrate such “significant gap” in service, the provider is
required to show that the area it proposes to serve is not already served by
another provider. In other words, the relevant “significant gap” is determined
from the perspective of the remote user rather than from the perspective of the
particular provider. Accordingly, in denying an application for a proposed cell
tower, a municipality, as well as the objecting neighbors, have taken some
comfort that the denial would not run afoul of the TCA where the area proposed
to be served by the tower was already served by another provider.
However, the Third Circuit Court’s position,
that the relevant “significant gap” in service is determined from the
perspective of the user, has not been shared by other circuit courts. For
example, the Courts of Appeal for the First and Ninth Circuits have concluded
that the relevant “significant gap” is to be determined from the perspective of
the particular provider in filling a gap in its own service coverage despite the
presence of another provider in the proposed service area.2
In response to the foregoing difference among
circuit courts, the Federal Communications Commission (FCC) in 2009 issued a
Declaratory Ruling, In the Matter of Petition for Declaratory Ruling to
Clarify Provisions of Section 332(c)(7)(B).3 In that Ruling, the FCC disagreed
with the Third Circuit Court and sided with the other circuit courts. As a
result, the FCC interpreted the TCA as requiring the relevant “significant gap”
to be determined from the perspective of the particular provider notwithstanding
the existence of another provider in the proposed service area. In so doing,
the FCC concluded that any other interpretation of the TCA would be inconsistent
with the TCA’s pro-competitive purpose.
District Court Decision
Less than a year later, the United States
District Court for the Eastern District of Pennsylvania, issued an opinion in
the case of Liberty Towers, LLC v. Zoning Hearing Board of Township of Lower
case concerned the denial by the Zoning Hearing Board of an application by
Liberty Towers for a use variance to construct a telecommunications facility
which included a new cell tower. Liberty Towers filed a complaint with the
District Court alleging that the denial of the use variance had the effect of
prohibiting personal wireless services contrary to the TCA. Liberty Towers also
appealed the Zoning Hearing Board decision to the Court of Common Pleas of Bucks
Lower Makefield Township, which intervened as a
defendant in the District Court action, filed a motion to dismiss Liberty
Tower’s complaint asserting that Liberty Towers failed to properly plead a
significant gap in coverage in that other wireless service providers were able
to provide services in the area affected by the proposed tower. The District
Court denied the Township’s motion to dismiss the complaint.
In denying the motion, the District Court
relied on the FCC Declaratory Ruling, finding that the Ruling, with its
interpretation of the TCA, was entitled to deference over the earlier Third
Circuit Court holdings. As a result, the Court followed the FCC interpretation
that a significant gap in services is to be determined from the provider’s
perspective without regard to whether service to the area in question is
provided by another provider. The District Court also held that Liberty Towers
was entitled to contest the denial of the application by the Zoning Hearing
Board before the District Court under the TCA despite also filing a
parallel appeal from the Zoning Hearing Board decision to the Bucks County Court
of Common Pleas.
Effect of FAA Determination and
U.S. District Court Decision
In view of FAA Determination and Liberty
Towers District Court decision, a municipality, as well as objecting
neighbors to a proposed cell tower, can no longer rely on the presence of an
existing provider to successfully challenge an alleged “significant gap” in
service and defend against an alleged violation of the TCA arising from the
municipality’s denial of an application for the proposed tower. Rather, the
principal focus of the municipality and objecting neighbors may be limited to
efforts in showing that the proposed cell tower is not the least intrusive
method to fill the alleged gap in service.
For legal services and representation
concerning the location of cell towers on or near residential property or for
any other land use matter, please contact the land
use attorneys of OWM Law.
1See Omnipoint Communications Enterprises, L.P. v.
Zoning Hearing Board of Easttown Township, 331 F.3d 386 (3rd Cir. 2003); APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469 (3rd Cir.
2See Second Generation Properties, L.P. v. Township
Pelham, 313 F.3d 620 (1st Cir. 2002); MetroPCS, Inc. v. City and County
of San Francisco, 400 F.3d 715 (9th Cir. 2005).
324 F.C.C.R. 13994, 24 FCC Rcd. 13994 (November 18,
4748 F.Supp.2d (E.D. Pa. 2010).
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David A. Megay, Esq. and James C. Kovaleski, Esq., speaking at SCORE business planning seminar on 11/7/11 (contact SCORE at 610-327-2673).