Opinion

New Cingular Wireless PCS, LLC v. Fairfax County Board of Supervisors

  • 674 F.3d 270
  • 55 Communications Reg. (P&F) 840
  • 2012 U.S. App. LEXIS 5640
  • 2012 WL 922435
Court
Court of Appeals for the Fourth Circuit
Filed
Mar 19, 2012
Status
Published
Author
Davis
On the bench
Agee, Davis, Floyd
Cited by
6 cases
Authority
More cited than 25.8%

acknowledging the TCA’s requirement at § 332(c)(7)(B)(iii) and identifying the federal review standard as whether the local decision “has substantial support in the record as a whole” and “whether the record contains such relevant evidence that a reasonable mind might accept as adequate to support the Zoning Board’s conclusion”

How later courts described this case

  • acknowledging the TCA’s requirement at § 332(c)(7)(B)(iii) and identifying the federal review standard as whether the local decision “has substantial support in the record as a whole” and “whether the record contains such relevant evidence that a reasonable mind might accept as adequate to support the Zoning Board’s conclusion”
  • “[A] proposed telecommunication facility’s negative impact on the neighborhood may support a finding of substantial evidence” (internal quotation marks omitted)
  • acknowledging the TCA’s requirement at § 332(c)(7)(B)(iii

Written by the judges who cited it.

The opinion

DAVIS, Circuit Judge,

concurring:

I concur fully in Judge Agee’s fine opinion for the panel. As Judge Agee ably explains, substantial evidence supports the Board’s decision, and AT & T has failed to provide more than a scintilla of evidence from which a reasonable fact-finder could conclude that further efforts to secure approval for a wireless facility in Fort Hunt National Park are “so likely to be fruitless that it is a waste of time to try.” Maj. Op. at 277 (quoting USCOC of Virginia RSA # 3, Inc. v. Montgomery County Board of Supervisors, 343 F.3d 262, 268 (4th Cir.2003)). That is, I agree that AT & T’s evidence on the “lack of reasonable alternative sites” is significantly weaker than *278 was T-Mobile’s evidence on alternative sites in T-Mobile Northeast, LLC v. Fairfax County Board of Supervisors, 672 F.3d 259, 266 (4th Cir.2012), which the majority in that case held (over my dissent) to be insufficient to require a trial on the issue. Id. at 269-70 . I write separately simply to note that neither in this case nor in T-Mobile has this circuit yet determined “whether a particular level of coverage in a particular geographic area constitutes an ‘effective absence of coverage.’ ” Id. at 277 (Davis, J., dissenting). That question remains for resolution in a future case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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