360° Communications Co. v. Board of Supervisors of Albemarle County

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

360o COMMUNICATIONS COMPANY OF

CHARLOTTESVILLE,

Plaintiff-Appellee,

v.

THE BOARD OF SUPERVISORS OF

ALBEMARLE COUNTY,

Defendant-Appellant.

KEVIN DUDLEY; BARBARA DUDLEY;

CARR DORMAN; MARGARET DORMAN;

JACOB LOESER; CONNIE LOESER;

STEPHEN INNES; BILL O. MAHONE;

IRMA MAHONE; MARYANNE

RODEHEAVER; STEPHEN THORNTON; M.

No. 99-1816

BIRD WOODS; T. K. WOODS, JR.;

DAVID VANROIJEN; JAMES MCILNAY;

MOLLY MCILNAY; JULIA SCHNEIDER;

MITCH MCCULLOUGH; EDWARD L.

AYERS; ABBY AYERS; PIEDMONT

ENVIRONMENTAL COUNCIL;

CITIZENS FOR FAUQUIER COUNTY;

SCENIC AMERICA; LOCAL

GOVERNMENT ATTORNEYS

ASSOCIATION OF VIRGINIA,

INCORPORATED; VIRGINIA

ASSOCIATION OF COUNTIES; VIRGINIA

MUNICIPAL LEAGUE; APPALACHIAN

TRAIL CONFERENCE,

Amici Curiae.

360o COMMUNICATIONS COMPANY OF

CHARLOTTESVILLE,

Plaintiff-Appellant,

v.

THE BOARD OF SUPERVISORS OF

ALBEMARLE COUNTY,

Defendant-Appellee.

KEVIN DUDLEY; BARBARA DUDLEY;

CARR DORMAN; MARGARET DORMAN;

JACOB LOESER; CONNIE LOESER;

STEPHEN INNES; BILL O. MAHONE;

IRMA MAHONE; MARYANNE

RODEHEAVER; STEPHEN THORNTON; M.

No. 99-1897

BIRD WOODS; T. K. WOODS, JR.;

DAVID VANROIJEN; JAMES MCILNAY;

MOLLY MCILNAY; JULIA SCHNEIDER;

MITCH MCCULLOUGH; EDWARD L.

AYERS; ABBY AYERS; PIEDMONT

ENVIRONMENTAL COUNCIL;

CITIZENS FOR FAUQUIER COUNTY;

SCENIC AMERICA; LOCAL

GOVERNMENT ATTORNEYS

ASSOCIATION OF VIRGINIA,

INCORPORATED; VIRGINIA

ASSOCIATION OF COUNTIES; VIRGINIA

MUNICIPAL LEAGUE; APPALACHIAN

TRAIL CONFERENCE,

Amici Curiae.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-98-99-C)

Argued: January 24, 2000

Decided: March 15, 2000

2

Before NIEMEYER, Circuit Judge,

Deborah K. CHASANOW, United States District Judge

for the District of Maryland, sitting by designation,

and Andre M. DAVIS, United States District Judge

for the District of Maryland, sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Chasanow and Judge Davis joined.

_________________________________________________________________

COUNSEL

ARGUED: Larry Wade Davis, OFFICE OF THE COUNTY

ATTORNEY, Charlottesville, Virginia, for Appellant. Melvin Earl

Gibson, Jr., TREMBLAY & SMITH, L.L.P., Charlottesville, Vir-

ginia, for Appellee. ON BRIEF: Gustav Gregory Kamptner, OFFICE

OF THE COUNTY ATTORNEY, Charlottesville, Virginia, for

Appellant. Patricia D. McGraw, TREMBLAY & SMITH, L.L.P.,

Charlottesville, Virginia, for Appellee. George R. St. John,

ST. JOHN, BOWLING & LAWRENCE, L.L.P., Charlottesville, Vir-

ginia, for Amici Curiae Dudley, et al. Kathleen Rogers, PIEDMONT

ENVIRONMENTAL COUNCIL, Warrenton, Virginia, for Amicus

Curiae Council, et al. William Malone, John L. Knight, Henrico

County Attorney, Sterling Rives, Hanover County Attorney, C. Flippo

Hicks, Mark K. Flynn, MILLER & VAN EATON, P.L.L.C., Wash-

ington, D.C., for Amici Curiae Local Government Attorneys, et al.

Andrew T. Hyman, Harpers Ferry, West Virginia; Charles W. Sloan,

SLOAN & SWEDISH, Vienna, Virginia, for Amicus Curiae Appala-

chian Trail Conference.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Applying the Telecommunications Act of 1996, the district court

entered an injunction, on the motion of 360o Communications, Inc.,

3

directing the Albemarle County (Virginia) Board of Supervisors to

issue a special-use permit to 360o Communications for the construc-

tion of a wireless communications tower on Dudley Mountain in

Albemarle County. While the court concluded that the Board's denial

of the permit application was supported by substantial evidence -- a

conclusion with which we agree -- it held that the denial of the per-

mit had "the effect of prohibiting the provision of personal wireless

services" to the County, in violation of § 704(a)(7)(B)(i)(II) of the

Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II). For the rea-

sons that follow, we reverse.

I

360o Communications, Inc., a licensed provider of wireless tele-

phone services, submitted an application to the Albemarle County

(Virginia) Board of Supervisors for a special-use permit to erect one

or more telecommunications towers near the top of Dudley Mountain

in Albemarle County. 360o Communications maintained that the

southern part of the County was not being provided adequate wireless

service and that there were gaps in coverage of the area. Following

a meeting with the staff of the Albemarle County Planning Commis-

sion, 360o Communications refined its application to request approval

of only one 100-foot tower on the ridgeline of Dudley Mountain that

would extend approximately 40-50 feet above the tree canopy. Dud-

ley Mountain, which rises approximately 1550 feet above sea level,

is located between U.S. Route 29 on the west and Virginia Route 706

on the east, south of Charlottesville, Virginia. 360 o Communications

indicated that in constructing the tower, it would use a lattice design,

painted medium-gray, and antenna mounts that would minimize the

tower's profile.

At the Albemarle County Planning Commission's meeting on June

2, 1998, during which 13 citizens spoke in opposition to the tower,

the planning staff recommended that the Commission deny 360o

Communications' application. The staff noted that the proposed tower

was inconsistent with Albemarle County's Comprehensive Plan for

the development of the County. It also noted that the proposed tower

would violate two provisions of the County's zoning ordinance.

Finally, the staff noted that because 360o Communications had not

demonstrated the lack of other feasible locations for the tower, denial

4

of the application would not have the effect of prohibiting wireless

service generally. The Planning Commission unanimously recom-

mended denial of the application to the County Board of Supervisors

and scheduled a public hearing before the Board of Supervisors for

August 12, 1998.

At the hearing before the Board of Supervisors, 360 o Communica-

tions presented evidence that it had been receiving about 20 calls per

week complaining about inadequate wireless service in the Dudley

Mountain area and that the proposed site on Dudley Mountain was the

optimal location from which to provide the service. It presented evi-

dence that because of the density of the forest, the tower needed to

be 40 feet above the tree canopy in order to provide effective cover-

age. 360o Communications claimed that the proposed tower would be

as invisible as a tower could be and still perform its intended function,

and it provided photographs of the mountain that depicted a barely

visible red balloon, five feet in diameter, to identify the proposed

location of the tower. It assured the Board that it had met the planning

staff's conditions for the access road to the site. 360o Communica-

tions' witnesses discussed alternatives to the single tower, including

the use of six 100-foot towers at sites below the mountain ridgeline

to cover the areas both to the east and west sides of the mountain or

the use of 20 to 24 60-foot poles along the sides of the roads near

Dudley Mountain.

Ten citizens spoke against the proposed tower, generally voicing

concerns about its visibility, its inconsistency with the community's

environmental preservation goals, and its impact on the character of

the area. The only citizen who supported the application was the

owner of the land on which the tower would be erected. Opposing cit-

izens testified that they already enjoyed adequate cellular coverage in

the area of the mountain and that, in any event, satellite communica-

tions would replace cellular service in the near future. Citizens com-

plained about potential erosion, and one citizen, whose property was

contiguous to that on which the tower would be located, testified that

he placed his land in a conservation easement "just so this sort of

thing would not happen." One citizen presented a petition opposing

the tower signed by 40 people, and another presented a slide show

showing pictures of the mountain.

5

The Board of Supervisors denied the application by unanimous

vote. It determined that the proposed tower would conflict with the

County's Comprehensive Plan and Open Space Plan, which encour-

aged the protection of mountains and rural areas and discouraged

activities that would alter the continuity of the County's mountain

ridgelines or disrupt the natural balance of the soils, slope, and vege-

tation of mountainous areas. It concluded that the tower would also

conflict with guidelines recommended for mountain resource areas, of

which the proposed site was a part. The Board also determined that

the proposed tower would conflict with the Albemarle County Zoning

Ordinance in that (1) the proposed tower would be only 40 feet from

the nearest property line despite its height of 100 feet; (2) its access

road would disturb steep, critical slopes; (3) the tower would change

the rural character of the district due to its visibility on a wooded,

sparsely populated mountain ridgeline; and (4) the tower was detri-

mental to the creation of a "convenient, attractive and harmonious

community." The Board concluded that alternatives were available

and that its decision would not prohibit wireless communication ser-

vice in Albemarle County. It noted that since 1990, it had granted 18

permits for wireless communications towers and denied only 4.

360o Communications commenced this action under § 704(a)(7)

(B)(v) of the Telecommunications Act, alleging that the Board of

Supervisors' decision was not supported by substantial evidence, in

violation of § 704(a)(7)(B)(iii) of the Act, and that the decision had

the effect of prohibiting the provision of personal wireless services,

in violation of § 704(a)(7)(B)(i)(II). On cross-motions for summary

judgment, the district court concluded that substantial evidence sup-

ported the Board of Supervisors' denial of the application but that the

denial of the application nevertheless had the effect of prohibiting the

provision of wireless services, in violation of the Act. The court con-

cluded that (1) the Board of Supervisors applied its zoning ordinance

and its Comprehensive Plan in a manner that prevented any applicant

from obtaining a permit to provide wireless services in areas geo-

graphically similar to Dudley Mountain, and (2) 360 o Communica-

tions' evidence demonstrated that there was no reasonable alternative

to mountaintop towers in the mountainous areas such as that south of

Charlottesville. Instead of remanding the case to the Board, the court

issued an injunction ordering the Board to grant the permit within 45

days because of "the Board's hostility toward the construction of

6

wireless towers on mountains." 360o Communications Co. v. Board of

Supervisors of Albemarle County, 50 F. Supp.2d 551, 564 (W.D. Va.

1999). These appeals followed.

II

Section 704(a) of the Telecommunications Act, which preserves

the authority of state and local governments to regulate the placement

and construction of wireless service towers, nevertheless limits the

manner in which state and local governments may exercise that

authority, providing that state and local governments may not deny

construction of a wireless service facility unless the denial is "in writ-

ing and supported by substantial evidence contained in the written

record." 47 U.S.C. § 332(c)(7)(B)(iii). We have interpreted the term

"substantial evidence" to mean "such relevant evidence as a reason-

able mind might accept as adequate to support a conclusion." AT&T

Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155

F.3d 423, 430 (4th Cir. 1998) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477 (1951)). It requires more than a mere scin-

tilla but less than a preponderance. See NLRB v. Grand Canyon Min-

ing Co., 116 F.3d 1039, 1044 (4th Cir. 1997). In Virginia, the grant

or denial of a conditional-use permit is a legislative act, as is the

adoption of a zoning regulation. See County Bd. of Arlington County

v. Bratic, 377 S.E.2d 368, 370 (Va. 1989); City Council of Virginia

Beach of Harrell, 372 S.E.2d 139, 141 (Va. 1988). In Virginia Beach,

we stated that when reviewing the decision of a local elected body,

we take "a reasonable mind" to refer to the mind of a reasonable legis-

lator. See 155 F.3d at 430. When reviewing legislative acts to deter-

mine whether they are supported by substantial evidence, we have

noted that "it is not only proper but even expected that a legislature

and its members will consider the views of their constituents to be

particularly compelling forms of evidence." Virginia Beach, 155 F.3d

at 430.

In Virginia Beach, we concluded that the substantial opposition

from local residents to an application for two cellular towers based on

their rational fears that the towers would damage the character of their

residentially zoned neighborhood, which contained no significant

commercial development, no commercial antenna towers, and no

above-ground power lines, amounted to "substantial evidence" and

7

was therefore a lawful basis for the city council's decision to deny a

permit for the towers. See 155 F.3d at 431. Similarly, in AT&T Wire-

less PCS, Inc. v. Winston-Salem Zoning Board of Adjustment, 172

F.3d 307, 315 (4th Cir. 1999), we held that the Winston-Salem Zon-

ing Board had "substantial evidence" to deny a special-use permit for

the construction of a 148-foot antenna tower near a historical house

that was surrounded by low-density, single-home, residential property

with no commercial property nearby. In Winston-Salem, approxi-

mately 150 local residents objected to the tower, either in person or

by petition, because it would change the character of the neighbor-

hood. See id. at 315-16. In contrast, in Petersburg Cellular Partner-

ship v. Board of Supervisors of Nottoway County, we held that a

county board decision, which was based upon "the irrational concerns

of a few constituents," was not supported by"substantial evidence."

No. 99-1055, ___ F.3d ___, 2000 WL 253605, at *___ (4th Cir. Mar.

7, 2000).

Upon judicial review of a local board's denial of a siting permit

application, courts must uphold the board's action if it has "substan-

tial support in the record as a whole." Virginia Beach, 155 F.3d at 430

(quoting Grand Canyon, 116 F.3d at 1044). Courts are not free to

substitute their own judgment for that of the board, even if they would

decide the matter differently as an original matter. See id. We review

the district court's judgment in such cases de novo. See Pleasant Val-

ley Hosp. v. Shalala, 32 F.3d 67, 69 (4th Cir. 1994).

In the record made before the Board of Supervisors, it is undis-

puted that the proposed tower would rise from the ridgeline of Dudley

Mountain and extend 40 to 50 feet above the tree canopy. Except for

the property owner who had intended to lease the property to 360o

Communications to build the tower, the citizens of Albemarle County

spoke unanimously in opposition to the tower siting. Thirteen spoke

in opposition at the public hearing before the Planning Commission

on June 2, 1998, giving varying reasons. Similarly, at the meeting of

the Board of Supervisors on August 12, 1998, ten citizens spoke in

opposition, objecting to the tower's visibility, its inconsistency with

environmental preservation goals, and its impact on the character of

the area. Also, 40 citizens signed a petition opposing the proposed sit-

ing of the tower.

8

In addition to this virtually unanimous citizen opposition, the

Board of Supervisors had evidence before it that the proposed tower

would be inconsistent with the Comprehensive Plan, the Open Space

Plan, and the County's Zoning Ordinance. The Comprehensive Plan

and Open Space Plan note that "any serious modification of the natu-

ral ridge lines in the County will modify the visual character of an

entire area," that "activities which alter the continuity of the ridge line

. . . should be discouraged," and that "issues related to soil erosion

[and] surface water runoff" are amplified in mountainous areas. The

Zoning Ordinance provides that the Board must find that the proposed

use

will not be of substantial detriment to adjacent property, that

the character of the district will not be changed thereby, and

that such use will be in harmony with the purpose and intent

of [the zoning] ordinance, with the uses permitted by right

in the district, with additional regulations provided in [the]

ordinance, and with the public health, safety and general

welfare.

Albemarle County Zoning Ordinance § 31.2.4.1. Additionally,

County Zoning Ordinance § 4.10.3.1 provides that "no structure shall

be located closer in distance to any lot line than the height of the

structure." It was undisputed that the proposed tower was to be 100

feet tall and was sited 40 feet from the nearest lot line.

To be sure, 360o Communications presented evidence that the

tower would be constructed to stand with minimal visibility and that

the site would be optimal for providing service in southern Albemarle

County, where gaps in service existed. It assured the Board of Super-

visors that it would address the planning staff's objections to the

access road and that installation of the tower would be by air (helicop-

ter) rather than by road. It also requested a variance of the Zoning

Ordinance's setback requirement. But just as 360 o Communications'

position was a reasonable one, so also was the position of the citizens

of the community. At bottom, these issues, as to which conflicting

evidence was presented, are of the type that zoning boards are typi-

cally qualified to resolve.

Upon our view of the record, we conclude that the decision of the

Albemarle County Board of Supervisors to deny 360 o Communica-

9

tions' application for a special-use permit had substantial support in

the record as a whole, in satisfaction of 47 U.S.C.§ 332(c)(7)(B)(iii).

See Winston-Salem, 172 F.3d at 316-17; Virginia Beach, 155 F.3d at

431.

III

Although the district court correctly found that the Board of Super-

visors' decision to deny 360o Communications' permit was supported

by substantial evidence, the court concluded that the denial of the per-

mit had "the effect of prohibiting the provision of personal wireless

services," in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). In reaching

this conclusion, the court determined that 360o Communications had

no "reasonable alternative" to a mountaintop site. 360o Communica-

tions Co. v. Board of Supervisors of Albemarle County, 50 F. Supp.2d

at 563. In response to the evidence in the record that six towers at

lower elevations on Dudley Mountain or 20 to 24 road-side towers

could provide adequate service, the court agreed that these and other

"exceptional alternatives" might be available, but they were not "rea-

sonable." Id. The court said, in order to be "reasonable,"

an alternative . . . must, at a minimum, provide a high level

of wireless service, its cost must be within or close to the

industry-wide norm for establishing new service under simi-

lar circumstances, it must employ commonly used technol-

ogy, and it must be logistically feasible.

Id. The court also concluded that the Board of Supervisors was hostile

to the construction of wireless towers on mountains and that a remand

"would serve no useful purpose." Id. at 564. Accordingly, it entered

an order enjoining the Board of Supervisors to "issue any required

permits within 45 days." Id. at 552.

The Board of Supervisors challenges the district court's conclu-

sions based both on the court's interpretation of the evidence and on

the legal standard it applied. The Board points to the fact that reason-

able alternatives did exist and that the Board had a record of granting

permits for communications towers, having denied only a few. In

challenging the legal test devised by the district court, the Board

states that the test would "enable[ ] wireless service providers to dis-

10

regard local zoning authority merely by proposing towers that will

provide the greatest coverage in a single tower by, for example, locat-

ing on a mountain top or using a very tall tower." In addition, the

Board argues that there is no evidence in the record to suggest that

the cost to erect one or more towers on alternative sites would be pro-

hibitive or that it would be difficult for 360o Communications to

obtain acceptable alternative sites.

360o Communications urges approval of the district court's conclu-

sion, arguing that in the circumstances, the Board of Supervisors'

denial of the special-use permit amounts to a "general ban or morato-

rium." It notes that because of the topography in Albemarle County,

the placement of "some towers on some mountaintops" is necessary

to provide "effective [wireless] coverage." (Emphasis in original).

The issue thus presented is how properly to apply 47 U.S.C.

§ 332(c)(7)(B)(i)(II).

Congress enacted the Telecommunications Act "to promote compe-

tition 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 technol-

ogies." Pub. L. No. 104-104, 110 Stat. 56, 56 (1996); see also H.R.

Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996

U.S.C.C.A.N. 124, 124 (explaining that the purpose of the Telecom-

munications Act is "to provide for a pro-competitive, deregulatory

national policy framework designed to accelerate rapidly private sec-

tor deployment of advanced telecommunications and information

technologies and services . . . by opening all telecommunications mar-

kets to competition"). While Congress sought to limit the ability of

state and local governments to frustrate the Act's national purpose of

facilitating the growth of wireless telecommunications, Congress also

intended to preserve state and local control over the siting of towers

and other facilities that provide wireless services. It struck a balance

between the national interest in facilitating the growth of telecommu-

nications and the local interest in making zoning decisions with its

enactment of § 704(a) of the Telecommunications Act, 47 U.S.C.

§ 332(c). Under that section, authority to regulate siting and construc-

tion of telecommunications towers is preserved in state and local gov-

ernments, see 47 U.S.C. § 332(c)(7)(A), but these decisions are

subject to certain limitations, see 47 U.S.C. § 332(c)(7)(B). These

11

limitations include prohibitions against discriminating among wireless

service providers and against banning personal wireless services alto-

gether. See 47 U.S.C. § 332(c)(7)(B)(i). Section 332(c)(7)(B) also

requires local governments to act on permit applications "within a

reasonable period of time" and not to deny applications except "in

writing," and then only when "supported by substantial evidence con-

tained in a written record." 47 U.S.C. § 332(c)(7)(B)(ii) & (iii).

Finally, § 332(c)(7)(B) prohibits local governments from taking into

consideration the environmental effects of radio frequency emissions.

See 47 U.S.C. § 332(c)(7)(B)(iv).

The particular limitation at issue in this case reads in pertinent part:

"The [local] regulation of the placement . . . of personal wireless ser-

vice facilities . . . shall not prohibit or have the effect of prohibiting

the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)

(i)(II) (hereinafter sometimes, "(B)(i)(II)"). Stated another way, the

provision instructs that siting decisions may not be employed to deny

wireless telecommunications service. This does not mean that the

denial of a permit for a particular site amounts to the denial of

wireless services because services can be effected from numerous

sites in various combinations, sometimes not even within the area to

be served. It follows, therefore, that case-by-case denials of permits

for particular sites cannot, without more, be construed as a denial of

wireless services. See AT&T Wireless PCS v. City Council of Virginia

Beach, 155 F.3d 423, 428-29 (4th Cir. 1998).

Certainly, local policies or general bans against any siting of wire-

less service facilities would violate (B)(i)(II). See Virginia Beach, 155

F.3d at 428; see also Town of Amherst v. Omnipoint Communications

Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999). Moreover, indica-

tions by a local government that repeated individual applications will

be denied because of a generalized hostility to wireless services could

also violate (B)(i)(II). But whether a single denial of a site permit

could ever amount in effect to the prohibition of wireless services is

a more difficult question, and it is the question with which we are

here presented. Because the simple fact of denial with respect to a

particular site is not enough, there must be something more, taken

from the circumstances of the particular application or from the pro-

cedure for processing the application, that produces the "effect" of

prohibiting wireless services.

12

Thus, conceptually, if wireless service could feasibly be provided

from only one site, a denial of a permit for a facility at that site could

amount to a prohibition of wireless services, in violation of (B)(i)(II).

See Amherst, 173 F.3d at 14. But such a hypothetical seems unlikely

in the real world, although gradations of the hypothetical are conceiv-

able.

Moreover, because (B)(i)(II) is aimed at facilitating the develop-

ment of wireless services, to evaluate whether that provision has been

violated, we must determine what level of services is protected by

(B)(i)(II). The Act obviously cannot require that wireless services

provide 100% coverage. In recognition of this reality, federal regula-

tions contemplate the existence of dead spots, defined as "small areas

within a service area where the field strength is lower than the mini-

mum level for reliable service." 47 C.F.R. § 22.99. And for the pur-

pose of calculating the cellular geographic service area, the

regulations provide that "cellular service is considered to be provided

in all areas, including `dead spots.'" 47 C.F.R. § 22.911(b); see also

Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643-44 (2d Cir. 1999)

(recognizing that denials of applications to provide service to fill cov-

erage gaps that are limited in number or size generally will not

amount to a prohibition of service). In Sprint Spectrum, the Second

Circuit, after carefully analyzing the various relevant provisions of the

Telecommunications Act, concluded that the "services" protected by

(B)(i)(II) are those that enable "mobile, handheld telephones to reach

a cell site that provides access to a land-line exchange and allows

phone calls to be made to and from the national telephone network"

without significant gaps of coverage. Id. at 641, 643-44.

Concluding that a single denial could, in certain circumstances,

violate (B)(i)(II), the Second and Third Circuits have adopted an

interpretation of (B)(i)(II) under which the denial of a permit for a site

that is "the least intrusive means to close a significant gap in service"

would amount to a denial of wireless services in violation of that sec-

tion. See APT Pittsburgh Ltd. Partnership v. Penn Township, 196

F.3d 469, 480 (3d Cir. 1999); Sprint Spectrum , 176 F.3d at 643; see

also Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Bor-

ough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999). This interpretive

rule effectively creates a presumption, shifting the burden of produc-

tion to the local government to explain its reason for denying such an

13

application. But, as an interpretation of the Telecommunications Act,

we believe this rule reads too much into the Act, unduly limiting what

is essentially a fact-bound inquiry. A community could rationally

reject the least intrusive proposal in favor of a more intrusive proposal

that provides better service or that better promotes commercial goals

of the community.

Even if we were to apply the rule formulated by the Second and

Third Circuits, determinations about what constitutes the "least intru-

sive means" and "a significant gap" in services, would, we believe,

quickly devolve into the broader inquiry indicated by the language of

the statute: "Does the denial of a permit for a particular site have the

effect of prohibiting wireless services?" We believe that this statutory

question requires no additional formulation and can best be answered

through the case-by-case analysis that the Act anticipates. See

Virginia Beach, 155 F.3d at 428-29.

Accordingly, it is clear that the test devised by the district court

reads far more into (B)(i)(II) than is written in the statute. The district

court erroneously concluded that the denial of a permit for a particular

site amounts to a prohibition of wireless service if the provider shows

that it cannot through another site provide "a high level of wireless

service" at a cost "within or close to the industry wide norm for estab-

lishing new service." 360o Communications, 50 F. Supp.2d at 563.

In the case before us, genuine factual disputes exist about whether

there is an absence of service in the southern part of Albemarle

County. If we assume that significant gaps are determined to exist,1

there remains the larger, statutory question of whether 360o Commu-

_________________________________________________________________

1 Obviously, if service is already provided in an area, it would be diffi-

cult to violate (B)(i)(II), which addresses only a prohibition of the provi-

sion of service. See Sprint Spectrum, 176 F.3d at 643. And, as we have

noted, "service" cannot be construed to require 100% coverage. But we

need not reach the question of whether poor service or significant gaps

in service in Albemarle County could amount to an absence of service

because we have concluded that even if there is an absence of service,

360o Communications has not met its heavy burden under (B)(i)(II) to

demonstrate that denial of the permit in this case amounts to a prohibi-

tion of the provision of service.

14

nications has met the "heavy burden" of demonstrating that denial of

its application for the one particular site is tantamount to a prohibition

of service. See Amherst, 173 F.3d at 14 ("[T]he burden for the carrier

invoking this provision is a heavy one: to show from language or cir-

cumstances not just that this application has been rejected, but that

further reasonable efforts are so likely to be fruitless that it is a waste

of time even to try"). 360o Communications' own testimony acknowl-

edges alternatives involving six towers located lower on Dudley

Mountain or 20-24 towers along the highway, and surely, these are

not all of the possibilities. The record contains little evidence about

the feasibility of any alternatives.

Not only has 360o Communications failed to meet its heavy burden

in demonstrating that the Board of Supervisors' denial of a permit for

a particular site amounts to a general prohibition of service, but the

Board of Supervisors has also provided affirmative evidence to the

contrary. It demonstrated that it has approved 18 applications for

wireless service facilities, including several from 360o Communica-

tions and a few for towers in mountain regions.

In summary, we conclude that the Board of Supervisors' decision

to deny 360o Communications' application for a special permit to

install a tower on the ridgeline of Dudley Mountain is supported by

substantial evidence in the record. We also conclude that there is

insufficient evidence in the record from which to conclude that the

Board's denial of this single permit had the effect of "prohibiting the

provision of personal wireless services," in violation of 47 U.S.C.

§ 332(c)(7)(B)(i)(II). Accordingly, the judgment of the district court

is

REVERSED.

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