January 5, 2016

On November 10, 2015 the United States Court of Appeals for the Second Circuit affirmed the District Court’s decision ordering the Town of East Fishkill to issue a permit for the construction of a new cell tower near the Taconic Parkway.

The Court examined the record de novo and rejected the Town’s arguments that the gap in wireless service was insignificant or that there was another, less intrusive alternative.

Under the federal Telecommunications Act of 1996 (TCA), local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7)(A), but may not “prohibit or have the effect of prohibiting the provision of personal wireless services,” id. § 332(c)(7)(B)(i)(II).  The TCA’s “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user’s ability to reach a cell site that provides access to land-lines.”  Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999).   A plaintiff will prevail on an effective prohibition claim, therefore, “if it shows both that a significant gap exists in wireless coverage and that its proposed facility is the least intrusive means to close that gap.”

Whether a significant gap in coverage exists is a “fact-bound” question that requires a case-by-case determination.  Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st Cir. 2009).  In making this determination, courts consider the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, and drop call or failure rates.  Id. at 49.

In this case, the Court found that the Town’s anecdotal drive test/dropped call data was insufficient to rebut Verizon Wireless’ coverage maps and expert testimony provided that a significant gap in wireless service existed.

The Court similarly rejected the Town’s argument that a two site alternative was available because the Town had refused to allow the carrier to extend one of the existing sites, which extension was apparently necessary in order to fill the coverage gap.

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