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

> Court of Appeals for the Fourth Circuit · March 19, 2012 · 674 F.3d 270

URL: https://www.frixlaw.com/law-library/cases/9485539

## Case

- **Full name:** NEW CINGULAR WIRELESS PCS, LLC, D/B/A AT & T Mobility, Plaintiff-Appellant, v. the FAIRFAX COUNTY BOARD OF SUPERVISORS, Defendant-Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** March 19, 2012
- **Citations:** 674 F.3d 270; 55 Communications Reg. (P&F) 840; 2012 U.S. App. LEXIS 5640; 2012 WL 922435
- **Precedential status:** Published
- **Opinion:** Concurrence by Davis
- **Judges:** Agee, Davis, Floyd
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9485539

## How later opinions describe it (automated extraction)

- 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 a…
- acknowledging the TCA’s requirement at § 332(c)(7)(B)(iii

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9485539. Public record. Not legal advice.