Cellco Partnership v. The White Deer Township Zoning Hearing Board

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CELLCO PARTNERSHIP d/b/a : CIVIL ACTION NO. 4:20-CV-2438

VERIZON WIRELESS, :

: (Judge Conner)

Plaintiff :

:

v. :

:

THE WHITE DEER TOWNSHIP :

ZONING HEARING BOARD :

:

Defendant :

MEMORANDUM

Plaintiff Cellco Partnership doing business as Verizon Wireless (“Verizon”)

brings this action against defendant the White Deer Township Zoning Hearing

Board (“Zoning Board”) under the Telecommunications Act of 1996, 47 U.S.C.

§ 332(c)(7)(B)(v). Verizon and Zoning Board both move for summary judgment

pursuant to Federal Rule of Civil Procedure 56.

I. Factual Background & Procedural History1

Verizon is a cell phone service provider licensed by the Federal

Communications Commission (“FCC”). (See Doc. 25-1 ¶¶ 2-4). Verizon has

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party

opposing a motion for summary judgment must file a separate statement of material

facts, responding to the numbered paragraphs set forth in the moving party’s

statement and identifying genuine issues to be tried. Id. Unless otherwise noted,

the factual background herein derives from the parties’ Rule 56.1 statements of

material facts. (See Docs. 25-1, 29-2, 30-1, 32). To the extent the parties’ statements

are undisputed or supported by uncontroverted record evidence, the court cites

directly to the statements of material facts.

identified a four-mile area along Interstate 80 (“I-80”) in the northern portion of

Union County, Pennsylvania, where its wireless service is lacking. (See Doc. 25-20

at 3-4). Within the four-mile area, Verizon subscribers are likely to suffer from

dropped calls, garbled audio, a lack of data connectivity, and—in case of an

emergency—difficulty contacting 911. (See Doc. 25-20 at 1; Doc. 25-27, Zoning

Hearing Bd. Tr. 97:8-98:23 (“ZHB Tr.”)). Verizon seeks to construct a cell phone

tower in the northwestern corner of White Deer Township to alleviate this service

gap. (See Doc. 25-1 at 6; Doc. 25-20 at 3-4; see also Doc. 25-5).

The northwestern corner of White Deer Township along I-80 is a sparsely

populated area where the vast majority of land is controlled by the Pennsylvania

Department of Conservation and Natural Resources (“DCNR”). (See Doc. 25-1

¶¶ 26-27, 33; Doc. 30-1 ¶ 26; see also ZHB Tr. 58:21-23). DCNR has a longstanding

moratorium on leasing land for construction of cell phone towers. (See Doc. 25-1

¶¶ 28-29; Docs. 25-11, 25-12; see also ZHB Tr. 58:17-60:10, 65:14-21, 76:11-82:4, 88:7-

91:1). Consequently, the number of available locations for building a tower capable

of alleviating the gap, at least on private land, are very limited. (See ZHB Tr. 58:17-

23, 81:1-11). After conducting an examination of the area, Verizon determined there

is precisely one suitable location—a small parcel along White Deer Pike owned by

Willard E. Simpler, III, and Nancy S. Messimer.2 (See Doc. 25-1 ¶¶ 28-29; ZHB Tr.

56:12-83:2, 88:7-91:1; Doc. 25-20 at 5).

Verizon subsequently negotiated a lease agreement with Simpler and

Messimer. (See Doc. 25-1 ¶ 7). The lease agreement grants Verizon the right to

build a tower on a 65’ by 40’ (0.0597 acre) subsection of the parcel. (See id.) Verizon

seeks to use the subsection to construct a 195-foot monopole cell phone tower

capped by a four-foot lightning rod. (See Doc. 25-1 ¶ 9; Doc. 29-2 ¶ 15).

White Deer Township has enacted a zoning ordinance in accordance with

Pennsylvania’s municipal planning code. (See Doc. 25-1 ¶ 8; Doc. 29-2 ¶¶ 3, 8, 10-14).

The subject parcel is zoned “Woodland,” one of several zoning districts in White

Deer Township. (See Doc. 25-1 ¶ 24). Cell phone towers are permissible structures

within Woodland districts provided the tower meets certain requirements. (See id.

¶ 25). Most relevant to the controversy sub judice, the ordinance sets a minimum lot

size of one acre and a minimum setback requirement of the tower’s height plus ten

percent. (See Doc. 25-28 at 4).

Verizon applied to Zoning Board on August 18, 2020, seeking variances

necessary to allow construction of the tower on the leased portion of the parcel.

(See Doc. 29-2 ¶ 17; Doc. 32 ¶ 17). Zoning Board held a hearing on Verizon’s

2 Verizon refers to the property at issue as being located at 9880 White Deer

Pike, New Columbia, Pennsylvania. (See Doc. 25-1 ¶ 7; Doc. 25-2 at 1). Zoning

Board, on the other hand, identifies the property as being located at 8779 White

Deer Pike. (See Doc. 29-2 ¶ 7; Doc. 29-1 at 1). Neither party ever asserts or implies

there is a dispute over which property is at issue. (See Doc. 25-1 ¶ 7; Doc. 30-1 ¶ 7;

Doc. 29-2 ¶ 7; Doc. 32 ¶ 7). Accordingly, we assume the difference in address is

inconsequential clerical confusion.

application on October 14, 2020. (See Doc. 25-1 ¶ 11). In support of the application,

Verizon provided copious documentation establishing the tower’s necessity and

compliance with various regulatory and permitting criteria. (See id. ¶ 12). Verizon

also presented testimony from four witnesses, including Andrew Petersohn, a radio

frequency design expert, and Matthew Burtner, a siting consultant. (See id. ¶ 13;

see also Doc. 25-20 at 10). Additionally, Verizon asserted that to deny the requested

variances would constitute a violation of the Telecommunications Act of 1996. (See

Doc. 25-1 ¶ 10).

Zoning Board denied Verizon’s application orally at the conclusion of the

hearing. (See id. ¶ 15). Zoning Board then issued a written decision articulating its

findings of fact, conclusions of law, and rationale for denying the variances. (See

Doc. 25-28). The written opinion describes Verizon as having presented a large

volume of “factual information” showing “compliance with virtually all criteria

required for permitting the proposed use.” (See id. at 4). It also acknowledges

Verizon had shown ample evidence for finding the existence of a significant gap in

service. (See id.) Nevertheless, Zoning Board found that Verizon had not met the

statutory requirements for granting a variance under the Commonwealth’s

Municipal Planning Code, namely, that Verizon had not shown that compliance

with the lot-size and setback minimums prevented “any possibility of development

in strict conformity to the Ordinance.” (See id. at 4-9). The opinion also expresses

concern over the danger posed to public safety should the tower suffer a structural

failure. (See id. at 5-9).

Following denial of the variance application, Verizon filed the pending

lawsuit alleging Zoning Board’s denial violates the Telecommunications Act and

requesting the court reverse the denial. The parties have filed cross-motions for

summary judgment on all counts of Verizon’s complaint. The motions are fully

briefed and ready for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that

do not present a “genuine dispute as to any material fact” and for which a jury trial

would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of

proof tasks the nonmoving party to come forth with “affirmative evidence, beyond

the allegations of the pleadings,” in support of its right to relief. See Pappas v. City

of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light

most favorable to the non[]moving party and draw all reasonable inferences in that

party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014).

This evidence must be adequate, as a matter of law, to sustain a judgment in favor

of the nonmoving party on the claims. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-89 (1986). Only if this threshold is met may the cause of action proceed.

See Pappas, 331 F. Supp. 2d at 315.

Courts may resolve cross-motions for summary judgment concurrently. See

Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008); see also Johnson

v. FedEx, 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014); 10A CHARLES ALAN WRIGHT ET

AL., FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed. 2015). When doing so, the

court is bound to view the evidence in the light most favorable to the nonmoving

party with respect to each motion. See FED. R. CIV. P. 56; Lawrence, 527 F.3d at 310

(quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

III. Discussion

Congress enacted the Telecommunications Act to facilitate expansion of cell

phone service across the United States and encourage competition between cell

phone service providers. See Verizon Commc’ns, Inc. v. F.C.C., 535 U.S. 467, 491-92

(2002); APT Pittsburgh Ltd. P’ship v. Penn Township Butler County, 196 F.3d 469,

473 (3d Cir. 1999); Ogden Fire Co. No. 1 v. Upper Chichester Township, 504 F.3d

370, 377-78 (3d Cir. 2007). To achieve this purpose, the Act, inter alia, places certain

limitations on the traditional power of state and local authorities to regulate the

placement of “personal wireless service facilities,” i.e., cell phone towers. See APT

Pittsburgh, 196 F.3d at 473, 476-78; see also 47 U.S.C. § 332(c)(7). Specifically, the

Act forbids state and local governments from regulating “the placement,

construction, and modification of personal wireless service facilities” so as to

“prohibit or have the effect of prohibiting the provision of personal wireless

services.” See 47 U.S.C. § 332(c)(7)(B)(i)(II). The Act also requires that any decision

denying a request to “place, construct, or modify personal wireless service

facilities” be in writing and “supported by substantial evidence contained in a

written record.” See id. § 332(c)(7)(B)(iii). The Act empowers any person adversely

affected by action (or inaction) inconsistent with these limitations to bring suit in

any court of competent jurisdiction. See id. § 332(c)(7)(B)(v). We review whether

the state or local regulation violates the Act de novo. See Sprint Spectrum, L.P. v.

Zoning Bd. of Adjustment of Paramus N.J., 606 F. App’x 669, 671 (3d Cir. 2015)

(nonprecedential) (citing APT Pittsburgh, 196 F.3d at 475).

Verizon argues that Zoning Board’s denial violates the Telecommunications

Act because the denial of the requested variances has the effect of prohibiting the

provision of personal wireless services in the four-mile area along the I-80 corridor.3

(See Doc. 25-2 at 4-24). The standard for an “effect-of-prohibiting claim” is

currently unsettled in our circuit. Our court of appeals previously held that to

succeed on an effect-of-prohibiting claim, Verizon must show its proposed tower

(1) fills a “significant gap” in service and (2) does so in a manner that is “least

intrusive” on the values Zoning Board’s denial sought to serve. See Sprint

Spectrum, 606 F. App’x at 671 (citing APT Pittsburgh, 196 F.3d at 480). However,

the Telecommunications Act also empowers the FCC to institute binding

regulations implementing the Act. See MCI Telecomm. Corp. v. Bell Atl. Pa., 271

F.3d 491, 516 (3d Cir. 2001). In 2018, the FCC promulgated a new test for

determining when state or local government regulation effectively prohibits the

provision of personal wireless service, see In the Matter of Accelerating Wireless

3 Verizon also argues Zoning Board’s decision violates Section 332(c)(7)(B)(iii)

of the Act because it is unsupported by substantial evidence. (See Doc. 25-2 at 24-28

(citing, inter alia, 47 U.S.C. § 332(c)(7)(B)(iii))). Because we find Zoning Board’s

decision has the effect of prohibiting the provision of wireless service under Section

332(c)(7)(B)(i)(II), we need not reach Verizon’s claim under Section 332(c)(7)(B)(iii).

See id. § 332(c)(7)(B)(i), (iii).

Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd.

9088 (2018) (“2018 Declaratory Ruling”).

Under the FCC’s test, a state or local government prohibits the provision of

personal wireless service whenever it “materially inhibits” a provider’s ability to,

inter alia, enter a new area, provide new services in an area, or improve service

in an area. See id. at 9102-05. The FCC’s test specifically rejects our court of

appeals’ two-pronged test as “unduly narrow” in the light of the current wireless

marketplace. See id. at 9106-08 (rejecting, among others, APT Pittsburgh, 196 F.3d

at 478-79). The FCC’s test does not require wireless service providers to show a

significant gap in coverage or that the challenged regulation creates a “complete” or

“insurmountable” barrier to providing service. See id. at 9106-10. Even the mere

imposition of a “financial burden” on the service provider, under the correct

circumstances, can have the effect of prohibiting the provision of service. See id. at

9106.

Compared to our court of appeals’ test, the FCC’s test places a far lower

burden on a provider claiming a zoning decision has the effect of prohibiting the

provision of personal wireless service. Our court of appeals has yet to consider

whether it will grant deference to the FCC’s regulation or maintain its two-pronged

test, but at least two district courts have assumed our court of appeals will defer to

the new FCC regulation. See T-Mobile, Ne., LLC v. City of Wilmington, No. CV 16-

1108-ER, 2020 WL 1245306, at *5 (D. Del. Mar. 16, 2020) (assuming FCC merits

deference but declining to apply the test because of retroactivity concerns); New

Cingular Wireless PCS LLC v. Zoning Bd. of Adjustment of N. Haledon, 469 F.

Supp. 3d 262, 277 (D.N.J. 2020) (same); see also Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 986 (2005). We find it unnecessary to decide

whether the FCC’s regulation merits deference because Zoning Board’s decision to

deny Verizon’s variance application meets the more stringent standard set by our

court of appeals. Any circumstance satisfying our court of appeals’ effect-of-

prohibiting test unquestionably satisfies the FCC’s “materially inhibits” standard.

Thus, consideration of the deference question is unnecessary.

A. Significant Gap

Verizon asserts that a significant gap in service exists within the four-mile

area along the I-80 corridor. (See Doc. 25-2 at 9-13). A “gap” exists when a user of

wireless service is unable to connect with the national telephone network or

“maintain a connection capable of supporting a reasonably uninterrupted

communication.” See Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus,

197 F.3d 64, 70 (3d Cir. 1999). When it initially established our circuit’s standard for

a significant gap, our court of appeals held that the perspective of the user, not the

wireless service provider, is the proper measure. See APT Pittsburgh, 196 F.3d at

480. Under this holding, deemed the “one-provider rule,” providers can only claim

a significant gap in service exists if no other provider covers the area in question.

See id.; see also Omnipoint Commc’ns Enters., L.P. v. Newtown Township, 219 F.3d

240, 244 (3d Cir. 2000); see also T-Mobile Cent., LLC v. Charter Township, 691 F.3d

794, 806 (6th Cir. 2012) (discussing development of one-provider rule across

circuits).

As the case law surrounding the Telecommunications Act developed, some

courts of appeals adopted the one-provider rule, see Sprint Spectrum L.P. v.

Willoth, 176 F.3d 630, 640 (2d Cir. 1999); AT & T Wireless PCS, Inc. v. City Council

of Va. Beach, 155 F.3d 423, 428 (4th Cir. 1998), while others rejected it, holding

significant gaps could exist within a particular provider’s own service, see Second

Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 632-34 (1st Cir. 2002);

MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 733 (9th Cir. 2005),

abrogated on other grounds by T-Mobile S., LLC v. City of Roswell, 574 U.S. 293

(2015). The FCC, seeking to resolve this circuit split, promulgated a declaratory

ruling in 2009 repudiating the one-provider rule and holding that Section

332(c)(7)(B)(i)(II) “applies not just to the first carrier to enter into the market, but

also to all subsequent entrants.” See In the Matter of Petition for Declaratory

Ruling to Clarify Provisions of Section 332(c)(7)(b), 24 FCC Rcd. 13994, 14014-19

(2009) (“2009 Declaratory Ruling”).

Our court of appeals has yet to formally address the FCC’s repudiation, but

both parties assume the one-provider rule no longer applies. (See Doc. 25-2 at 9-13;

Doc. 30 at 8). The parties’ position is supported by several district court decisions

granting the 2009 Declaratory Ruling deference, see, e.g., Liberty Towers, LLC v.

Zoning Hearing Bd. of Lower Makefield, 748 F. Supp. 2d 437, 444-45 (E.D. Pa. 2010);

Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of Paramus, No. CIV.A. 09-4940

JLL, 2010 WL 4868218, at *9 (D.N.J. Nov. 22, 2010), and at least one instance where

our court of appeals affirmed a district court decision finding a significant gap

existed in the plaintiffs’ own coverage, see Sprint Spectrum, 606 F. App’x 669 at 671,

678. We therefore join the parties in assuming a significant gap can exist within a

provider’s own coverage.

At the zoning hearing, Verizon provided a report and testimony from

Petersohn, a “radio frequency design engineer.” (See Doc. 25-20; ZHB Tr. 92:21-23).

In both his report and testimony, Petersohn describes the presence of a “four-mile

stretch along I-80” where Verizon subscribers are likely to suffer dropped calls,

garbled audio, a lack of data connectivity, and difficulty contacting emergency

services. (See ZHB Tr. 97:1-99:5; see also Doc. 25-20 at 1). Petersohn’s expert

testimony speaks precisely to the connectivity issues necessary for showing the

existence of a “significant gap” in service. See Ho-Ho-Kus, 197 F.3d at 70. Zoning

Board’s decision denying Verizon’s variance requests even acknowledges Verizon

“adequately demonstrates there is a ‘gap’ in wireless communication services that

the proposal is designed to alleviate.” (See Doc. 25-28 at 6). In response to

Verizon’s motion, Zoning Board does not go so far as to admit the gap exists, (see

Doc. 30-1 ¶ 5), but provides no evidence or reasoning challenging the accuracy of

Verizon’s evidence. Accordingly, we have no difficulty finding Verizon, as a matter

of law, has established the existence of a significant gap in its service along the I-80

corridor.

B. Least Intrusive Means

A provider does not need to eliminate every conceivable alternative to show

that a proposed personal wireless service facility is the least intrusive means of

addressing a significant gap in service. See APT Pittsburgh, 196 F.3d at 480. Per

contra, the provider only needs to establish that “a good faith effort has been made

to identify and evaluate less intrusive alternatives” in terms of the values the denial

sought to serve. See id. Zoning Board’s written decision identifies a single value as

motivating Zoning Board’s decision—safety. (See Doc. 25-28 at 5-6). The decision

explains that the lot-size and setback requirements exist to protect structures and

individuals from injury should the tower suffer a structural failure. (See id. at 4-6).

Hence, granting the variances would place the public in danger. (See id. at 5-6).

At the zoning hearing, Burtner, Verizon’s siting expert, testified that Verizon

considered virtually every other privately held property in the area around the

service gap and explained, property by property, why Verizon rejected each as a

viable location for a tower. (See ZHB Tr. 56:12-83:2, 88:7-91:1). Burtner specifically

testified that all the other plausible locations for the tower on privately held land

would require even greater variances from the zoning ordinance’s requirements

than the White Deer Pike parcel. (See id. at 60:14-20).

Zoning Board questioned in its written decision whether Verizon had truly

shown no alternative existed to constructing the tower on the parcel because

Verizon had not challenged the legality of DCNR’s moratorium, (see Doc. 25-28 at

6-9), but it does not renew that argument before this court. In fact, Zoning Board

provides neither evidence nor argument suggesting another location or

technological means to address the service gap. Nor does it attack the accuracy or

credibility of Burtner’s testimony. We conclude without hesitation that Verizon

made a good faith effort to find an alternative site and established, as a matter of

law, that the 195-foot monopole is the least intrusive means of addressing the

service gap along the I-80 corridor. See APT Pittsburgh, 196 F.3d at 480.

C. Fairview Township

In contesting Verizon’s invocation of the Telecommunications Act, Zoning

Board relies entirely on a single decision by the Pennsylvania Commonwealth

Court. (See Doc. 30 at 7-12 (citing Fairview Township v. Fairview Twp. Zoning

Hearing Bd., 233 A.3d 958, 969 (Pa. Commw. Ct. 2020))). In Fairview Township, the

Commonwealth Court reversed the trial court’s decision granting two variance

applications. See Fairview Township, 233 A.3d at 960-61. Relying on the FCC’s

2009 Declaratory Ruling, the trial court reasoned the Telecommunications Act

mandated granting the applications because denial of either would have had the

effect of prohibiting the provision of personal wireless service. See id. at 964-66.

The Commonwealth Court’s reversal focuses on the FCC’s statements that its

repudiation of the one-provider rule leaves “[s]tate and local authority to base

zoning regulation on other grounds . . . intact” and that when “a bona fide local

zoning concern, rather than the mere presence of other carriers, drives a zoning

decision, it should be unaffected by our ruling today.” See id. at 970-71 (quoting

2009 Declaratory Ruling at 14016). According to the Commonwealth Court, these

statements indicate that as long as the zoning board grounds its decision in a “bona

fide local zoning concern,” the zoning decision does not violate the effect-of-

prohibiting clause. See id. at 969-70.

At the outset, we note that this matter is not before us in diversity

jurisdiction; thus, the Commonwealth Court’s decision is not binding on this court.

See Surrick v. Killion, 449 F.3d 520, 535 (3d Cir. 2006) (citations omitted). Nor are

we persuaded by its ratio decidendi. The Commonwealth Court reads too much

substance into the FCC’s boilerplate regulatory disclaimers. The Commonwealth

Court holds the Telecommunications Act never obliges local zoning boards to grant

variances to personal wireless service providers as long as the board provides some

zoning-related reasoning justifying its decision.4 But this cannot be so. The

Commonwealth Court’s statement contradicts our court of appeals, which

consistently—and logically—concludes that denials of variances grounded in bona

fide zoning concerns can violate the effect-of-prohibiting clause of the

Telecommunications Act. See APT Pittsburgh, 196 F.3d at 477 (envisioning certain

“individual adverse zoning decision[s]” as having “the ‘effect’ of violating §

332(c)(7)(B)(i)(II)”); Sprint Spectrum, 606 F. App’x at 676 (finding district court

“correctly concluded that the ZBA’s denial of the variance requested was an

‘effective prohibition’ under the [Telecommunications Act].”). The Fairview

Township holding also contradicts the plain text of the 2009 Declaratory Ruling,

which concludes its discussion of Section 332(c)(7)(B)(ii) with the following passage:

[T]he denial of an application may sometimes establish a

violation of Section 332(c)(7)(B)(ii) if it demonstrates a

policy that has the effect of prohibiting the provision of

personal wireless services as interpreted herein. Whether

the denial of a single application indicates the presence of

such a policy will be dependent on the facts of the

particular case.

4 Subsequent Commonwealth Court decisions confirm our reading of

Fairview Township as effectively mandating judicial approval of these variance

denials. See, e.g., SBA Towers II, LLC v. Zoning Hearing Bd. of Logan Twp., 247

A.3d 1194 (Pa. Commw. Ct. 2021); Horvath Towers V, LLC v. Indiana Twp. Bd. of

Supervisors, No. 1579 C.D. 2019, 2020 WL 3068737, at *8 (Pa. Commw. Ct. June 10,

2020).

2009 Declaratory Ruling, 24 FCC Rcd. at 14019 (emphasis added). The FCC, like

our court of appeals, envisions certain variance denials under certain circumstances

constituting violations of Section 332(c)(7)(B)(ii) regardless of whether the denial is

motivated by a bona fide local zoning concern. See id.

The Commonwealth Court’s interpretation is further undermined by the

conflict it creates with the Telecommunications Act’s goal of limiting the ability of

state and local governments to block expansion and improvement of wireless

service. See APT Pittsburgh, 196 F.3d at 473; Ogden Fire, 504 F.3d at 378; 2009

Declaratory Ruling, 24 FCC Rcd. at 14018. The FCC’s intent to curtail state and

local regulatory power—not expand it as Fairview Township contends—comes

across clearly in the FCC’s subsequent declaratory ruling in 2018, lowering the bar

for invalidating state and local regulatory actions. See 2018 Declaratory Ruling, 33

FCC Rcd. at 9102-09. The Commonwealth Court suggests that the FCC

simultaneously holds any zoning board action that “materially inhibits” personal

wireless service, including the mere imposition of financial burdens, as violating

Section 332(c)(7)(B)(ii), see id. at 9106, but also any action that genuinely prevents

the provision of service is acceptable when justified by a “bona fide zoning

concern,” see Fairview Township, 233 A.3d at 970-71. The Commonwealth Court’s

reading of the FCC’s declaratory rulings simply defies common sense.

We read the FCC’s 2009 Declaratory Ruling as doing only what it purports to

do—resolve the circuit split by repudiating the one-provider rule—and nothing

more. See 2009 Declaratory Ruling, 24 FCC Rcd. at 14016 (“We agree with the

Petitioner that the fact that another carrier or carriers provide service to an area is

an inadequate defense under a claim that a prohibition exists.”); see also Liberty

Towers, 748 F. Supp. 2d at 444-45 (similarly interpreting 2009 Declaratory Ruling).

The statements cited by the Commonwealth Court merely seek to cabin the FCC’s

repudiation of the one-provider rule to avoid any additional effect on the existing

case law regarding the circumstances in which state and local regulation has the

effect of prohibiting personal wireless service. For all of these reasons, we find

Zoning Board’s extensive citations to Fairview Township unpersuasive.

IV. Conclusion

The undisputed facts establish that Verizon has met our court of appeals’

requirements for succeeding on an effect-of-prohibiting claim under the

Telecommunications Act. See APT Pittsburgh, 196 F.3d at 480. We will reverse

Zoning Board’s decision on Verizon’s variance application and grant said

application. We will grant Verizon’s motion for summary judgment and deny

Zoning Board’s motion. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: June 29, 2022