T-Mobile Central, LLC v. Charter Township of West Bloomfield

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0275p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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T-MOBILE CENTRAL, LLC,

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Plaintiff-Appellee,

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No. 11-1568

v.

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Defendant-Appellant. -

CHARTER TOWNSHIP OF WEST BLOOMFIELD,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:09-cv-13496—Denise Page Hood, District Judge.

Argued: May 30, 2012

Decided and Filed: August 21, 2012

Before: BOGGS and COLE, Circuit Judges; and OLIVER, District Judge*

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COUNSEL

ARGUED: Drew W. Broaddus, SECREST WARDLE, LYNCH, HAMPTON, TRUEX,

and MORLEY, Troy, Michigan, for Appellant. T. Scott Thompson, DAVIS WRIGHT

TREMAINE LLP, Washington, D.C., for Appellee. ON BRIEF: Drew W. Broaddus,

SECREST WARDLE, LYNCH, HAMPTON, TRUEX, and MORLEY, Troy, Michigan,

for Appellant. T. Scott Thompson, Leslie G. Moylan, DAVIS WRIGHT TREMAINE

LLP, Washington, D.C., for Appellee.

*

The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District

of Ohio, sitting by designation.

1

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 2

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OPINION

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BOGGS, Circuit Judge. T-Mobile proposed to build a cellular tower in an area

of West Bloomfield Township, Michigan, that had a gap in coverage. The Township

denied T-Mobile’s application. T-Mobile brought suit, alleging that the denial of the

application violated the Telecommunications Act, 47 U.S.C. § 332 et seq. The district

court granted partial summary judgment in favor of T-Mobile, and the Township

appealed. There are three issues on appeal. First, whether the Township’s denial of T-

Mobile’s application to install a cellular tower was supported by substantial evidence,

as required by 47 U.S.C. § 332(c)(7)(B)(iii). Second, whether the Township’s denial of

T-Mobile’s application had the effect of prohibiting T-Mobile from providing wireless

services and thus violated 47 U.S.C. § 332(c)(7)(B)(i)(II). This issue, which has led to

a split among the circuits, presents a case of first impression for this circuit. Finally,

whether the district court should have granted summary judgment in favor of the

Township on Count III of the complaint because the Township had discretion to grant

or deny a special land use application under Mich. Comp. Laws § 125.3504. We affirm

the judgment of the district court.

I

A

T-Mobile, a wireless communications carrier in Michigan, identified a gap in

coverage in West Bloomfield Township that adversely affected customers in that area.

To remedy this gap, T-Mobile sought to construct a new wireless facility. After initially

considering several possible sites—none of which T-Mobile claimed were technically

feasible or practically available—T-Mobile decided that the best option would be to

construct a facility at a utility site on a property owned by Detroit Edison. The facility

contained an existing 50-foot pole, which T-Mobile wanted to replace with a 90-foot

pole disguised to look like a pine tree with antennas fashioned as branches

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 3

(a “monopine”). This site was not located within the two cellular tower overlay zones

designated in the Township’s Zoning Ordinance (CT 1 and CT 2), where wireless

facilities are considered a use permitted by right, subject only to site approval.

Therefore, T-Mobile would have to seek special land-use approval and site-plan

approval.

On December 17, 2008, T-Mobile filed an application with the Township to

obtain special land-use approval for the proposed site. The Township Planning

Commission held a hearing on February 24, 2009. At the hearing, T-Mobile presented

testimony and evidence demonstrating its need to fill a gap in coverage, justification for

the selection of that site and the height of the pole, an explanation of how the facility

would provide for collocating1 equipment for other cellular carriers, and a representation

that the facility would have a minimal visual impact. Several members of the public

spoke in opposition to granting the special land use. The areas to the north, east, and

west of the proposed site were residential subdivisions, and there was a daycare center

to the south. At the hearing, the Township Planning Commission passed a motion to

recommend to the Board of Trustees of the Township that T-Mobile’s application should

be denied.

On May 27, 2009, T-Mobile submitted to the Board of Trustees additional

materials in support of its application, which responded to the Township Planning

Commission’s objections. Specifically, T-Mobile contended that 90 feet would be the

minimum height necessary in order to collocate two other carriers on the towers. Several

people spoke in opposition to T-Mobile’s application at the Board of Trustees hearing.

On August 3, 2009, the Board denied T-Mobile’s application in a letter with five stated

reasons.

1

The word “collocate” is also spelled as “colocate” and “co-locate” in the record.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 4

B

T-Mobile sought an injunction in district court that would direct the Board of

Trustees to grant its application. The complaint raised three claims. First, that the denial

of its application was not supported by substantial evidence, in violation of the

Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii). Second, that the denial of its

application had the “effect of prohibiting the provision of personal wireless services.”

47 U.S.C. § 332(c)(7)(B)(i)(II). Third, that the denial of the permit was a violation of

the Township’s duty under Mich. Comp. Laws § 125.3504(3) to approve special land use

applications that meet the Township’s zoning ordinance requirements.

The district court granted T-Mobile’s motion for partial summary judgment.

First, the district court held that the Township’s grounds for denial were not supported

by substantial evidence. Second, the district court held that T-Mobile could not feasibly

locate the facility elsewhere and that the Township had effectively prohibited the

provision of wireless services. Third, because the Township violated the

Telecommunications Act, it was not necessary to construe state law, and thus the

question of whether the Township complied with Mich. Comp. Laws § 125.3504(3) was

moot.

The Township appealed the district court’s order granting T-Mobile’s motion for

partial summary judgment. On appeal, this court reviews the district court's grant of

summary judgment de novo. Sigley v. City of Parma Heights, 437 F.3d 527, 532

(6th Cir. 2006).

II

A

47 U.S.C. § 332(c)(7)(B)(iii) provides: “Any decision by a State or local

government or instrumentality thereof to deny a request to place, construct, or modify

personal wireless service facilities shall be in writing and supported by substantial

evidence contained in a written record.” (emphasis added). When drafting this statute,

Congress used the “substantial evidence” standard, well understood in appellate review

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 5

of administrative proceedings but a novel concern for federal courts reviewing the

proceedings of local zoning boards. This court, like all others,2 has found that the

“‘substantial evidence’ standard of § 332 is the traditional standard employed by the

courts for review of agency action.” Telespectrum, Inc. v. Pub. Serv. Comm’n of

Kentucky, 227 F.3d 414, 423 (6th Cir. 2000).

However this court’s precedents do not address “substantial evidence” of what?

In other words, if there is a denial of an application to build a wireless facility, what

must the substantial evidence in the record show in order to avoid a violation of

§ 332(c)(7)(B)(iii)? The Ninth Circuit—in an opinion by Judge Cudahy sitting by

designation from the Seventh Circuit—explained that this standard “requires a

determination whether the zoning decision at issue is supported by substantial evidence

in the context of applicable state and local law.” MetroPCS, Inc. v. City & Cnty. of San

Francisco, 400 F.3d 715, 723–24 (9th Cir. 2005). On this analysis, § 332 does not

introduce a new federal substantive standard by which to assess the validity of the local

law. Rather, the limited focus is on the nature of the evidence before the local zoning

board and whether it is substantial. The Ninth Circuit found that it “may not overturn

the Board's decision on ‘substantial evidence’ grounds if that decision is authorized by

applicable local regulations and supported by a reasonable amount of evidence (i.e.,

more than a ‘scintilla’ but not necessarily a preponderance).” Id. at 725.

The existence of “substantial evidence” in the record—as traditionally

understood in the context of federal administrative law—is the standard against which

federal courts consider whether a zoning board acted in conformity with the relevant

local laws. So, for example, if the terms of a local zoning ordinance allow a zoning

2

See USCOC of Greater Iowa v. Zoning Bd. of Adjustment of Des Moines, 465 F.3d 817, 821

(8th Cir. 2006) (“We agree with the Seventh Circuit that although ‘it is unusual for a federal court to be

reviewing the decision of a nonfederal agency, we are given no reason to suppose that the term “substantial

evidence” in the Telecommunications Act bears a different meaning from the usual one.’”) (quoting

PrimeCo Pers. Commc’ns v. City of Mequon, 352 F.3d 1147, 1148 (7th Cir. 2003)); MetroPCS, Inc. v. City

& Cnty. of San Francisco, 400 F.3d. 715, 723 (9th Cir. 2005) (noting that “there appears to be universal

agreement among the circuits” that the traditional “substantial evidence” standard applies to 47 U.S.C. §

332(c)(7)(B)(iii)); Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1218 (11th Cir. 2002) (same); Sw.

Bell Mobile Sys. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001) (“The ‘substantial evidence’ standard of review

is the same as that traditionally applicable to a review of an administrative agency’s findings of fact.”);

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (holding that “substantial

evidence” implies this traditional standard).

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 6

board to deny a permit based on less than substantial evidence, or no evidence at all, and

a permit is denied on that basis, the record would lack substantial evidence to justify the

decision. Federal review is limited to this evidentiary inquiry. See id. at 724 (“[W]e

must take applicable state and local regulations as we find them and evaluate the City

decision’s evidentiary support (or lack thereof) relative to those regulations.”); ATC

Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002) (“The TCA's

substantial evidence test is a procedural safeguard which is centrally directed at whether

the local zoning authority’s decision is consistent with the applicable [local] zoning

requirements.”). The “substantial evidence” standard constructs a floor below which the

justification for denying a permit cannot fall—if it does, the board’s decision would

violate § 332(c)(7)(B)(iii).

Though this court is interpreting state substantive law, it applies the familiar

substantial-evidence standard, which is defined as “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Universal Camera

v. NLRB., 340 U.S. 474, 477 (1951). As this court noted in Telespectrum, we “look to

whether the agency explained any credibility judgments it made and whether it gave

reasons for crediting one piece of evidence over another” and “examine the evidence as

a whole, taking into account whatever in the record fairly detracts from its weight.”

Telespectrum, 227 F.3d at 423.

B

The Township argues that its denial of T-Mobile’s application was supported by

substantial evidence. In a letter to T-Mobile, the Township Clerk offered five reasons

for denying the application:

1. That the aesthetics of the surrounding neighborhood would be affected

adversely; and,

2. That [T-Mobile] has not accomplished an aesthetically pleasing

structure; and,

3. That a 70-foot cellular tower could be erected in the location rather

than a 90-foot cellular tower; and,

4. That the Zoning Ordinance (Section 26-49 a.10) specifies that the

Township Board found that the presence of numerous towers and pole

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 7

structures, particularly if located within residential areas, would decrease

the attractiveness of and destroy the character and integrity of the

community; and,

5. T-Mobile has not presented a sufficient need to build the towers[.]

T-Mobile counters that the five reasons provided for denying the application were

“conclusory, unsubstantiated assertions that do not cite any specific evidence and are not

supported by substantial evidence in the record.” None of these five reasons are

supported by substantial evidence.

1

At the August 3, 2009, meeting before the Township Board, several comments

were made regarding the aesthetics of the tower. Trustee Howard Rosenberg twice

referred to the facility as an “ugly tower.” After the hearing was opened for public

comment, several residents expressed concerns about the aesthetics of the facility. Mr.

Smith noted that the “existing pole was a wood pine pole with a whip antenna, [and was]

very different from the proposed tower.” Paul Grondin expressed concern that the tower

would harm “conifers [that are] diseased and will die.” Arthur White, who managed a

daycare facility nearby, asked: “Would you want one of these cell towers in your back

yard,” and expressed concern about the tower’s emissions harming children.3 The

record reflects that two letters of objection were received, but the actual letters were not

made part of the record.

On appeal, the Township asserts that these objections to the facility relate to

standards in § 26-49(d)(1) of the local zoning ordinance, which requires facilities to be

“located and designed to be harmonious with the surrounding areas.” T-Mobile argues

that the wireless facility would have been disguised as a tree on a property that has

numerous existing trees and that already has a 50-foot pole, asserting that “there are

few—if any—wireless support structures that could be more aesthetically pleasing.”

3

Similar comments were made to the Township Planning Commission on February 24, 2009, by

several of the same people.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 8

While the concerns brought before the Board certainly relate to building a

wireless facility that is aesthetically pleasing and “harmonious with the surrounding

area,” the evidence in the record is hardly substantial. The generalized complaints

effectively amount to NIMBY—not in my backyard.4 How substantial must substantial

evidence be? Substantial evidence should be substantiated. Telespectrum, 227 F.3d at

424 (noting that the unsupported testimony of a community resident, though “credible

[and] sympathetic[,] . . . was no more than unsupported opinion” and was not substantial

evidence). The evidence relied on by the Board of Trustees was merely alleged, not

substantiated. There was no evidence whatsoever that the wireless facility would have

any impact on the conifers, beyond Mr. Grondin’s accusation. Further, concerns that

the RF emissions could potentially impact trees or children at the daycare were

prohibited by statute as grounds to deny a wireless permit. “[N]o state or local

government or instrumentality thereof may regulate the construction of personal wireless

facilities on the basis of the environmental effects of RF emissions to the extent that such

facilities comply with the Commission’s regulations concerning such emissions.”

47 U.S.C. § 332(c)(7)(B)(iv); Telespectrum, 227 F.3d at 424 (“[C]oncerns of health

risks due to the emissions may not constitute substantial evidence . . . .”).

General concerns from a few residents that the tower would be ugly or that a

resident would not want it in his backyard are not sufficient. New Par v. City of

Saginaw, 301 F.3d 390, 399 n.4 (6th Cir. 2002) (citing Petersburg Cellular P'ship v. Bd.

of Supervisors, 205 F.3d 688, 695 (4th Cir. 2000) (“If, however, the concerns expressed

by the community are objectively unreasonable, such as concerns based upon conjecture

or speculation, then they lack probative value and will not amount to substantial

evidence.”)).

4

Several of the concerned citizens and members of the Board specifically mentioned their

backyards during the August 3, 2009, meeting. (“But I need to know if a resident says, you put an ugly

tower in my backyard and you potentially decrease my property value; [m]y backyard is kind of where

they’re going to put this thing; [b]ut the final word is, would you want one of these cell towers in what

would be, if I build a house there or build houses there, in my backyard?; [w]ould you want that in your

backyard; [t]here will be towers and towers, and pretty soon I’ll have Disneyland in my backyard.”)

(emphases added).

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 9

If § 332 were read as broadly as the Township suggests and these generalized

objections sufficed, any wireless facility could be rejected. Anyone who opposed a cell

tower in their backyard could offer an excuse that it would be bad for the community,

would not be aesthetically pleasing, or would be otherwise objectionable. But that by

itself is not enough. There must be evidence. And not just any evidence—evidence that

is substantial. And substantial evidence must be substantiated by something.

“Substantial evidence, in the usual context, has been construed to mean less than a

preponderance, but more than a scintilla of evidence.” Cellular Tel. Co., 166 F.3d at

494.

The fourth reason provided is that “the Zoning Ordinance (Section 26-49 a.10)

specifies that the Township Board found that the presence of numerous towers and pole

structures, particularly if located within residential areas, would decrease the

attractiveness of and destroy the character and integrity of the community.” Section 26-

49(a)(10) of the zoning ordinance states: “The township board finds that the presence

of numerous tower and/or pole structures, particularly if located within residential

areas, would decrease the attractiveness and destroy the character and integrity of the

community.” (emphasis added). The former stated reason simply parrots the language

of the ordinance. Merely repeating an ordinance does not constitute substantial

evidence. See, e.g., T-Mobile Ne. LLC v. City of Lawrence, 755 F. Supp. 2d 286, 291

(D. Mass. 2010). Further, the evidence in the record suggests quite the contrary. There

were not numerous towers or poles in that area—in fact, the lack of wireless towers in

that area was the reason why T-Mobile sought to build one.

The Township’s reasons for denial concerning aesthetics were not based on

substantial evidence in the record.

2

The Township asserts that there is substantial evidence in the record showing

that a 70-foot tower would have sufficed rather than the proposed 90-foot tower. T-

Mobile counters that under the local zoning ordinance, it was required to collocate other

wireless carriers on a new tower and could not have feasibly done so on a 70-foot tower.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 10

The zoning ordinance states a goal of collocation—that is, locating several

carriers on the same tower—and building only as many new wireless facilities as

necessary. See Sections 26-49(a)(9) (“This contemplates the establishment of as few

structures as reasonably feasible, and the use of structures which are designed for

compatibility, including the use of existing structures”); 26-49(g)(3)c (“The policy of

the community is to promote colocation”). Section 26-49(g)(3)b of the zoning ordinance

states that “[a]ll new and modified wireless communication facilities shall be designed

and constructed so as to accommodate colocation.” Section 26-49(b)(4) defines

collocation as “the location by two (2) or more wireless communications providers of

wireless communication facilities on a common structure, tower, or building, with the

view toward reducing the overall number of structures required to support wireless

communication antennas within the community.” (emphases added). Section 26-49(e)(1)

of the ordinance provides that “[t]he maximum height of the new or modified support

structure and antenna shall be the minimum height demonstrated to be necessary for

reasonable communication by the applicant (and by other entities to collocate on the

structure).”

By the terms of the ordinance, any new facility was required to collocate “two

(2) or more wireless communications providers.” Further, the structure would have to

be tall enough in order to support “reasonable communication” for at least two carriers.

The Township denied T-Mobile’s application, in part, because the Township found that

“a 70 foot cellular tower could be erected in the location rather than a 90 foot cellular

tower.” To support this reasoning, the record would have to contain substantial evidence

that a 70-foot tower would have permitted two collocated carriers to engage in

“reasonable communication.”5

The record contains letters from AT&T and Verizon who expressed a desire to

collocate with T-Mobile on the “90’ monopine” tower. “There must be at least ten feet

of vertical separation between the antennas of the various wireless companies

5

On appeal, the Township suggests that a 75-foot or 80-foot tower could have also been

appropriate. However, the reason in the denial letter concerned a 70-foot, rather than a 90-foot, tower.

This is the issue before the court on appeal. Appellant Br. at 31.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 11

collocating on the tower.” The letter from Verizon requested to “occupy the second

available level of this structure, which would be [at] approximately 77’.” Verizon’s

letter noted that it had “been in search [sic] to construct such a facility in this area for a

great amount of time.” AT&T’s letter expressed interest “on the condition that all

zoning approvals are secured.”6

There is no evidence in the record to support the Township’s position that a 70-

foot tower would have been suitable to satisfy the zoning ordinance’s requirement that

two wireless providers, engaged in reasonable communication, could be collocated at

this particular site. Appellant misreads the record when it claims that Verizon would

have been willing to collocate on a 70-foot tower with Verizon’s equipment placed at

the 60-foot level. Here is the relevant colloquy from the Board of Trustees meeting:

MR. DOVRE (Trustee): I’m asking if you’re willing to co-locate that

low?

MR. ANDERS (Representative from Verizon): We’re willing to

co-locate on the tower at a height that the tower owner would provide to

us.

MR. DOVRE: As low as 70 feet?

MR. ANDERS: Yes.

MR. DOVRE: How long [sic—should be low] would you co-locate at?

MR. ANDERS: As low as 70 feet.

MR. DOVRE: 60?

MR. ANDERS: I’d have to—70 feet is right now the—

The questions posed asked for the minimum height at which Verizon was willing to

collocate, not for the height the structure would be. In the original letter, Verizon sought

to collocate at around 80 feet but was willing to compromise at 70 feet (presumably

because AT&T was no longer in the picture). Since Verizon was not building the

structure—T-Mobile was—the ultimate height would have been mostly irrelevant to

Verizon. What mattered was the height at which Verizon’s equipment would be located.

A 70-foot tower, with Verizon collocated at 60 feet, would not, by Verizon’s own

admission, have worked. In other words, if Verizon’s equipment was positioned as low

6

However, it seems AT&T’s support may have waned after opposition emerged to the facility,

as it did not participate in the Township Board meeting.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 12

as 70 feet, T-Mobile’s equipment would be placed above it, making the height of the

structure greater than 70 feet (likely 80 feet). Simply stated, the evidence in the record

only shows that if T-Mobile were to build a tower with two collocated carriers as the

ordinance requires, the height would have to be greater than 70 feet tall. The evidence

does not show that a 70-foot tower would have been possible.

T-Mobile even offered to build a 70-foot tower if no other carriers collocated

(while this arguably would have violated the ordinance’s collocation requirement, it

resulted from T-Mobile’s trying to accommodate the Township). At the August 3, 2009,

meeting, after Trustee Kaplan mentioned that “[w]e also felt that a 70 foot tower would

have been sufficient,” a representative of T-Mobile replied that if no other carriers were

interested in collocating, “I would like to go on the record as saying, if you’re willing

to approve a 70 foot tower, I’m willing to take one.” Following the colloquy with the

Verizon representative, a motion was made to the Township Board to “remand the issue

to the planning commission for consideration of a 70 foot tower.” The motion was

seconded but not approved.

The Township’s position creates an untenable situation for T-Mobile. If T-

Mobile built a 70-foot tower that only supported one provider (T-Mobile), it would

violate the ordinance that requires collocation. If T-Mobile built a 70-foot tower

that also collocated another provider (Verizon), it would violate the ordinance

(Section 26-49(d)(1)e.1) that requires the structure to be the “minimum height

demonstrated to be necessary for reasonable communication by the applicant (and by

other entities to collocate on the structure).” The shorter collocated tower wouldn’t work

for Verizon. T-Mobile even offered to build a 70-foot tower if no other carriers were

collocated, and the Board did not adopt this proposal. By the very terms of the

ordinance and the Board’s decisions, T-Mobile could not build the structure under any

circumstances. Nothing in the record supports the ultimate decision that the Township

made with respect to height. The Township’s reason for denial of the application with

respect to the height of the tower was not supported by substantial evidence.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 13

3

The fifth reason offered for the denial of T-Mobile’s application was that “T-

Mobile has not presented a sufficient need to build the towers [sic].” During the hearing,

T-Mobile submitted a report from its RF engineer that contained coverage maps and

other data. The Township raises several objections to the report. First, that the

engineer’s analysis about the coverage gap did not contain any actual customer

complaints;7 second, that the coverage maps “were not based upon any empirical data”;

and third, that the “proposed tower would do nothing to improve coverage to the south

and east.”

These three objections were only raised during the course of litigation—none

were stated in the record. Further, none of these arguments cite any evidence in the

record—rather, the Township merely cites its own briefs from the district court.8 These

arguments are not properly before this court. The only issue before this court is whether

substantial evidence existed to support the denial of the application based on need, as

defined by the local zoning ordinance. MetroPCS, 400 F.3d at 724 (“[W]e must take

applicable state and local regulations as we find them and evaluate the City decision’s

evidentiary support (or lack thereof) relative to those regulations.”). Section

26-49(d)(2)a lists several factors to consider in determining need:

a. The applicant shall demonstrate the need for the proposed facility to

be located as proposed based upon the presence of one or more of the

following factors:

l. Proximity to an interstate or major thoroughfare.

2. Areas of population concentration.

3. Concentration of commercial, industrial, and/or other business centers.

4. Areas where signal interference has occurred due to tall buildings,

masses of trees, or other obstruction.

7

There is no requirement in the ordinance, or in federal law, that requires the submission of

consumer complaints.

8

In its brief, the Township cites both Defendant’s Answer to Plaintiff’s Motion for Partial

Summary Judgment and the Reply Brief to Plaintiff, T-Mobile Central, LLC’s Answer to Defendant

Charter Township of West Bloomfield’s Motion for Summary Judgment to support these three positions.

Appellant Br. at 31–32. The cited sections of the district-court filings included no citations to the record

or any exhibits. These citations are inapposite for purposes of appellate review.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 14

5. Topography of the proposed facility location in relation to other

facilities with which the proposed facility is to operate.

6. Other specifically identified reason(s) creating facility need.

The reason stated in the record with respect to this ground is that “T-Mobile has not

presented a sufficient need to build the towers [sic].”

The only evidence in the record that the Township cites to support the assertion

that there was not a sufficient need for the tower was testimony from Mr. Dave Crook

at the February 24, 2009, Planning Commission meeting.9 Mr. Crook stated that the

proposed facility would only address 15% of T-Mobile’s coverage problem. Mr. Crook

provided no explanation of how he reached this number, nor did he dispute any of the

facts in the RF engineer’s report. Nothing in the record suggests what qualifications Mr.

Crook possessed or whether he had any expertise to opine on the coverage gap in the

area. His ostensibly lay opinion is not substantial evidence. MIOP, Inc. v. City of Grand

Rapids, 175 F. Supp. 2d 952, 956–57 (W.D. Mich. 2001) (citing Telespectrum, 227 F.3d

at 424) (“Instead, the cases cited by the Sixth Circuit remark that opinion is not sufficient

to meet the substantial evidence requirement. Consistent with Sixth Circuit precedent,

this Court does not find lay opinion evidence sufficient to satisfy the substantial

evidence requirement.”).

To the contrary, based on the terms of the Township’s own zoning ordinance, T-

Mobile introduced voluminous amounts of evidence to support its position that there was

a sufficient need for the tower. The engineer’s report went through each of the six

factors listed in the ordinance and explained why the proposed facility met each

requirement: (1) the proposed facility is in close proximity to major thoroughfares in the

area; (2) the surrounding area is “heavily populated by subdivisions on both sides of the

roads”; (3) the area is “composed of major township roads and an established residential

9

It is unclear if the Board of Trustees voted on August 3, 2009, based on the comments made to

the Township Planning Commission on February 24, 2009, or if the Board only considered the

recommendation made by the Township Planning Commission. In any event, the comments made at the

February 24, 2009, meeting are part of the record that this court can consider on appeal. This court

“examine[s] the evidence as a whole, taking into account whatever in the record fairly detracts from its

weight.” Telespectrum, 227 F.3d at 423.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 15

population”; (4) “topography and the dense population of all types of trees do cause

considerable signal interference in the area”; (5) “it’s very difficult to find open level

ground upon which to build such a facility”; and (6) noting that the lack of “coverage in

this area is a long-standing issue,” this proposal would “not only fill coverage gaps for

in-car usage . . . [but also for] in-home coverage.” These arguments were supported by

detailed reports and coverage maps. There is not substantial evidence in the record to

support the Township’s denial of the application with respect to need.

4

Because the five stated reasons for denial of T-Mobile’s application were not

supported by substantial evidence, the district court correctly found that the Township’s

decision violated 47 U.S.C. § 332(c)(7)(B)(iii).

Summary judgment was appropriate for this claim.

III

A

Next, we consider whether the Township’s denial of T-Mobile’s application

violated 47 U.S.C. § 332(c)(7)(B)(i)(II), which provides that “[t]he regulation of the

placement, construction, and modification of personal wireless service facilities by any

State or local government or instrumentality thereof shall not prohibit or have the effect

of prohibiting the provision of personal wireless services.” (emphasis added). The

construction of this statute presents a question of first impression for this circuit.

As a threshold matter, we must first determine whether the denial of a single

application from T-Mobile can constitute an effective prohibition. The Township places

great stock in precedents from the Fourth Circuit, which has held that only a general,

blanket ban on the construction of all new wireless facilities would constitute an

“impermissible prohibition of wireless services under the TCA.” MetroPCS, 400 F.3d

at 730 (citing AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428

(4th Cir. 1998) (holding that only “blanket prohibitions” and “general bans or policies”

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 16

affecting all wireless providers count as effective prohibition of wireless services under

the TCA)).

However, the large majority of circuits have rejected this approach. Most

recently, the Ninth Circuit noted that, under such a strict construction, “persistent

coverage gaps can never constitute a prohibition under the statute—courts must ask only

whether local governments have (effectively) banned wireless services altogether. . . .

The language of the TCA, while sparse, does not dictate such a narrow interpretation

even under a plain meaning approach.” MetroPCS, 400 F.3d at 730; see also Second

Generation Props., LP v. Town of Pelham, 313 F.3d 620, 629 (1st Cir. 2002) (holding

that the clause “is not restricted to blanket bans on cell towers” and that “[t]he clause

may, at times, apply to individual zoning decisions.”); Voicestream Minneapolis, Inc.

v. St. Croix Cnty., 342 F.3d 818, 830 (7th Cir. 2003); APT Pittsburgh Ltd. P’ship v. Penn

Twp. Butler Cnty., 196 F.3d 469, 479–80 (3d Cir. 1999); Sprint Spectrum, L.P. v.

Willoth, 176 F.3d 630, 640 (2d Cir. 1999). Judge Cudahy in MetroPCS formulated a

two-part test to consider whether the denial of an application amounts to an effective

prohibition: there must be (1) a “showing of a ‘significant gap’ in service coverage and

(2) some inquiry into the feasibility of alternative facilities or site locations.” MetroPCS,

400 F.3d at 731. Both the Township and T-Mobile urge this court to adopt this test.

The statute itself refers to actions that “have the effect of prohibiting the

provision of personal wireless services.” (emphasis added.) Not simply prohibiting it,

but effectively prohibiting it. Thus, actions short of a complete prohibition could have

the effect of improperly hindering the construction of cellular towers. The cramped

reading of the Fourth Circuit—which requires a blanket ban to trigger a violation of the

statute—seems inconsistent both with the plain text of the statute as well as the broader

goal of the TCA to promote the construction of cellular towers. We now adopt the

MetroPCS standard and hold that the denial of a single application can constitute a

violation of this portion of the Act.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 17

B

1

Next, we must determine, as a matter of first impression, whether the “significant

gap” in service focuses on the coverage of the applicant provider (T-Mobile in this case)

or whether service by any other provider (Verizon, AT&T, Sprint, etc.) is sufficient.

That is, if an incumbent provider has coverage in a given area but a new provider

seeking to construct a wireless facility does not, does a “significant gap” in coverage

exist? The Second and Third Circuits have held that no “significant gap” exists if any

“one provider” is able to serve the gap area in question. See, e.g., APT Pittsburgh,

196 F.3d at 478–80; Willoth, 176 F.3d at 643. Likewise, the Fourth Circuit adopted the

“one provider rule,” holding that allowing carriers an individualized cause of action

“would effectively nullify local authority by mandating approval of all (or nearly all)

applications.” AT&T Wireless, 155 F.3d at 428. In other words, under this approach,

if Verizon has coverage in an area but T-Mobile does not, T-Mobile cannot claim to

have a service gap.

The Ninth Circuit rejected the “one provider” rule and adopted a standard that

considers whether “a provider is prevented from filling a significant gap in its own

service coverage.” MetroPCS, 400 F.3d at 733. The First Circuit has also adopted this

rule and observed that “[t]he fact that some carrier provides some service to some

consumers does not in itself mean that the town has not effectively prohibited services

to other consumers.” Second Generation Props., 313 F.3d at 634. Under this approach,

if Verizon had coverage in an area but T-Mobile did not, T-Mobile could still claim to

have a service gap.

In 2009, the FCC issued a Declaratory Ruling that explained that the effective

prohibition provision requires only a showing that a carrier has a “significant gap” in its

own service coverage—the approach of the First and Ninth Circuits:

While we acknowledge that this provision could be interpreted in the

manner endorsed by several courts [(the Second, Third, and Fourth

Circuits)]—as a safeguard against a complete ban on all personal

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 18

wireless service within the State or local jurisdiction, which would have

no further effect if a single provider is permitted to provide its service

within the jurisdiction—we conclude that under the better reading of the

statute, this limitation of State/local authority applies not just to the first

carrier to enter into the market, but also to all subsequent entrants.

In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B),

24 FCC Rcd. 13994, ¶ 57 (2009). The FCC found persuasive the First Circuit’s

reasoning:

We reach this conclusion for several reasons. First, our interpretation is

consistent with the statutory language referring to the prohibition of “the

provision of personal wireless services” rather than the singular term

“service.” As the First Circuit observed, “[a] straightforward reading is

that ‘services’ refers to more than one carrier. Congress contemplated

that there be multiple carriers competing to provide services to

consumers.”

Id. ¶ 58 (quoting Second Generation Props., 313 F.3d at 634). The FCC expressly

rejected the “blanket ban” approach adopted by the Second, Third, and Fourth Circuits:

“Third, we find unavailing the reasons cited by the Fourth Circuit (and some other

courts) to support the interpretation that the statute only limits localities from prohibiting

all personal wireless services (i.e., a blanket ban or ‘one-provider’ approach).” Id. ¶ 60.

From the perspective of a customer who has poor coverage with T-Mobile in a certain

area, it is little consolation that another provider, Verizon for example, may have good

service in the same area.

The Eastern District of Michigan found this FCC ruling dispositive in holding

that the “significant gap” refers only to a carrier’s own service, not that of any carrier.

T-Mobile Cent. LLC v. City of Fraser, 675 F. Supp. 2d 721, 729 (E.D. Mich. 2009)

(noting that “the Sixth Circuit has not spoken on this issue,” but acknowledging the

Declaratory Ruling and concluding that “the Court is not required to consider whether

other carriers provide service in the area of the gap”). In light of the FCC’s endorsement

of the standards used by the First and Ninth Circuits, we now adopt this approach.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 19

2

The analysis of whether a significant gap in coverage existed closely tracks our

earlier discussion about whether T-Mobile demonstrated a need to build the facility. The

Township raises two of the same three arguments to assert that T-Mobile failed to

establish a coverage gap. First, that “the record was devoid of any evidence of actual

customer complaints,” and second, that the report was “not based upon any empirical

data.” Appellant Br. at 38.10 Again, the Township merely cites its own briefs to support

these arguments.

First, there is no requirement under federal or state law that actual customer

complaints need to be submitted to demonstrate a coverage gap. Second, it is unclear

exactly what the Township means by asserting that the coverage maps were not based

on any empirical data. The engineer’s report was replete with coverage maps,

measurements of signal strengths, and other calculations. The Township introduced no

evidence into the record to show that the gap was not significant beyond general

complaints and comments from citizens that other wireless carriers had good coverage

in that area. In fact, several residents acknowledged that T-Mobile had poor coverage

or “dead zones” in the area.

T-Mobile introduced into the record RF propagation maps and drive test data,

along with a report by an RF engineer (which is discussed in detail supra Part II.B.3.).

These types of evidence are suitable to support a claim for a substantial gap in coverage.

See, e.g., MetroPCS, Inc. v. City & Cnty. of San Francisco, 2006 WL 1699580, at *11

(N.D. Cal. June 16, 2006) (finding that propagation maps can demonstrate the existence

of a coverage gap). T-Mobile claims that the relevant evidence shows that the gap is

“significant” because the “gap area includes both a major commuter highway and fully

developed residential areas.” As discussed in Part II.B.3 above, both of these assertions

are amply supported by the RF engineer’s affidavit.

10

Here, the Township does not make the third argument—“the maps indicate that the proposed

tower would do nothing to improve coverage to the south and east, or anything greater than about 15%.”

In any event, that unsubstantiated argument is without merit, as discussed supra Part II.B.3.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 20

Based on the record, we find that the denial of T-Mobile’s application “prevented

[T-Mobile] from filling a significant gap in its own service coverage.” MetroPCS,

400 F.3d at 733.

C

The second part of the MetroPCS inquiry focuses on whether there are feasible

alternate locations. “Under all existing versions of the ‘significant gap’ test, once a

wireless service provider has demonstrated that the requisite significant gap in coverage

exists, it must then make some showing as to the intrusiveness or necessity of its

proposed means of closing that gap.” MetroPCS, 400 F.3d at 734. The circuits split at

this fork:

The Second and Third Circuits require the provider to show that ‘‘the

manner in which it proposes to fill the significant gap in service is the

least intrusive on the values that the denial sought to serve.’’ Penn

Township, 196 F.3d at 480 (emphasis added); see also Omnipoint, 331

F.3d at 398; Unity Township, 282 F.3d at 266; Willoth, 176 F.3d at 643.

The First and Seventh Circuits, by contrast, require a showing that there

are ‘‘no alternative sites which would solve the problem.’’ Second

Generation Props., 313 F.3d at 635; see also St. Croix County, 342 F.3d

at 834–35 (adopting the First Circuit test and requiring providers to

demonstrate that there are no ‘‘viable alternatives’’). . . .

MetroPCS, 400 F.3d at 734. The Ninth Circuit adopted the “least intrusive” standard.

Id. at 735. Judge Cudahy found the precedents from the First and Seventh Circuit “too

exacting.” Id. at 734. The Second and Third Circuit’s “least intrusive” standard “allows

for a meaningful comparison of alternative sites before the siting application process is

needlessly repeated.” Id. at 734–35.

We agree with Judge Cudahy and adopt the “least intrusive” standard from the

Second, Third, and Ninth Circuits. It is considerably more flexible than the “no viable

alternatives” standard, as a carrier could endlessly have to search for different,

marginally better alternatives. Indeed, in this case the Township would have had T-

Mobile search for alternatives indefinitely.

No. 11-1568 T-Mobile Cent. v. Twp. of W. Bloomfield Page 21

Under the “least intrusive” standard, the analysis is straightforward, and T-

Mobile satisfies its burden. See Omnipoint, 331 F.3d at 398 (noting that the “least

intrusive” standard “will require a showing that a good faith effort has been made to

identify and evaluate less intrusive alternatives, e.g., that the provider has considered

less sensitive sites, alternative system designs, alternative tower designs, placement of

antennae on existing structures, etc.”). T-Mobile made numerous good-faith efforts to

identify and investigate alternative sites that may have been less intrusive on the “values

that the denial sought to serve.” Penn Twp., 196 F.3d at 480. Specifically they

considered building a monopole near the West Hills High School and on a water tower

at the Knollwood Country Club. A facility at the High School would have been

significantly more intrusive to the values of the community, as demonstrated by the

widespread opposition to that proposal. Also, T-Mobile determined that a facility at the

Knollwood Country Club location would have been too far away from the area with

weak service and would not have resolved the coverage gap. The Township suggested

no other alternatives beyond the two already proposed. This evidence is sufficient to

make the requisite “showing as to the intrusiveness or necessity of its proposed means

of closing that gap.” MetroPCS, 400 F.3d at 734.

The Township’s decisions had “the effect of prohibiting the provision of personal

wireless services” and thus violated 47 U.S.C. § 332(c)(7)(B)(i)(II).

IV

Remaining is the state-law claim, M.C.L. 125.3504, which the district court

declined to address, finding that the violation of the Telecommunications Act renders

the issue moot. Because we hold that the Township’s actions violated the

Telecommunications Act, we also need not address the state-law claim.

V

The judgment of the district court is AFFIRMED.