On July 20, 2009, the U.S. Court of Appeals for the 9th Circuit issued an opinion in T-Mobile USA, Inc. v. City of Anacortes, affirming that the City of Anacortes, Wash., violated the federal Communications Act when it denied T-Mobile’s application to install a wireless facility in the city. Although the decision is somewhat fact-specific, it does provide important guidance regarding the burden on municipalities that deny wireless siting applications.

Background

The case involves an appeal of the city’s denial of T-Mobile’s application to construct a new 116-foot monopole on a church property in a residential area of Anacortes. As both the 9th Circuit and the U.S. District Court for the Western District of Washington found, T-Mobile had submitted a detailed application that made a good faith evaluation of potential alternatives to the proposed site. Moreover, at the city’s behest, T-Mobile had evaluated 18 different potential alternatives.

T-Mobile’s analysis demonstrated that all of the alternative sites were either not technologically viable for closing a significant gap in T-Mobile’s coverage or were not available to T-Mobile, or in some cases both. T-Mobile’s analysis was generally confirmed by a consultant hired by the city. Nonetheless, the city denied T-Mobile’s application in the face of community complaints.

On July 18, 2008, the District Court had held that the city’s denial violated Section 332(c)(7) of the Communications Act. (Please see our July 2008 advisory.) In the 2008 decision, the District Court granted T-Mobile's Section 332 claim, holding that it had proposed a site that satisfied the 9th Circuit's “least intrusive means” test and that the city's denial was not supported by substantial evidence. The court rejected the city's argument that there were alternative sites available and the city’s determination that T-Mobile had not chosen the least intrusive location. The District Court concluded that the “alternative” locations identified by the city were not viable.

9th Circuit’s analysis

In its decision affirming the District Court, the 9th Circuit set forth a two-step analysis for determining whether a city’s denial has the effect of prohibiting the provision of wireless telecommunications services in violation of Section 332(c)(7)(B)(i)(II) of the Communications Act.

Following the 9th Circuit’s prior decision in MetroPCS v. City of San Francisco and the 9th Circuit’s recent en banc decision in Sprint Telephony PCS v. San Diego County, the court held that to satisfy its initial burden of showing that the denial will effectively prohibit the provision of service, the provider “makes a prima facie showing of effective prohibition by submitting a comprehensive application, which includes consideration of alternatives, showing that the proposed [wireless communications facility] is the least intrusive means of filling a significant gap.”

In MetroPCS, the 9th Circuit had clarified that the “least intrusive means” standard did not require a demonstration that the proposed site was the only feasible alternative, but rather required a good faith effort to identify and evaluate less intrusive alternatives.

Burden shifts to city

In this decision, the court clarified that after the carrier meets its prima facie burden, the burden then shifts to the city, stating, “When a locality rejects a prima facie showing, it must show that there are some potentially available and technologically feasible alternatives.” The court further explained that the provider would then have an opportunity to address the availability and feasibility of those alternatives identified by the municipality. This appears to provide carriers the opportunity to supplement the record to respond to a denial.

Applying its analytical framework, the court found that T-Mobile had satisfied its prima facie showing, and the alleged alternatives identified by the city were not available or technologically feasible. In particular, the court rejected several of the city’s alternatives, located on school district properties, as unavailable. The court rejected a city argument that the school district had retreated from its original refusal of T-Mobile's inquiries, finding the argument too speculative and contrary to T-Mobile's evidence that community opposition to school sites would be even greater.

Likewise, the court rejected other two-site combinations proffered by the city on the grounds that the city was ignoring evidence of the greater environmental impact and increased costs of those two-site options, and that the city did not provide any evidence that the sites not owned by the city were actually available to T-Mobile. In other words, it was not enough for the city to point to the other locations as alleged “alternatives.” The city was required to present evidence demonstrating those sites' availability to T-Mobile.

HotSpot@Home alternative rejected

Notably, the 9th Circuit also affirmed the District Court’s rejection of T-Mobile’s Wi-Fi-based HotSpot@Home product as an alleged alternative to T-Mobile’s proposed facility. The city had argued that HotSpot@Home was a less intrusive alternative, but the court rejected the argument, holding that HotSpot@Home was not relevant to the least intrusive means analysis because it is not part of T-Mobile’s licensed GSM network, must be separately purchased by subscribers, requires a separate broadband connection, and only works within homes of subscribing customers.

Because the court found that the city had not met its burden of demonstrating that any of its alleged alternatives were available, it did not reach the issue of whether the alternatives would close the significant gap.

Conclusion

The court’s decision in this case is important in clarifying the burden on municipalities when they deny an application. They must present evidence demonstrating that there are alternative sites, and they must present evidence that the sites are actually available to the provider.

The decision also indicates that a municipality cannot rely on speculative evidence of site availability but rather has an affirmative burden to demonstrate availability. The decision also requires the denying municipality to demonstrate the technical feasibility of the alleged alternatives.

With the recent focus on wireless technologies as an important part of broadband deployment policy goals, construction of new wireless facilities, particularly deeper into residential areas, will be critical. However, meeting the consumer desire for more and faster wireless service frequently will lead to more disputes, as municipalities seek to control and limit wireless facilities in response to “not in my back yard” opposition. This decision will provide significant guidance. It will be important, however, that as the court’s standard is implemented, the burden on municipalities is not allowed to result in a delay of wireless deployment.