T-Mobile Raises Broader Issues in Zoning Appeal
T-Mobile asked the 4th U.S. Circuit Court of Appeals in Richmond to overrule a lower court and allow the carrier to install antennas on an electric utility pole, after the application was denied by the Fairfax County Board of Supervisors. The case has broader implications since the 4th Circuit is at odds with other judicial circuits in saying only a “blanket ban” on wireless installations would violate the “effective prohibition” standard of Section 332(c)(7)(B)(i)(II) of the Communications Act.
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"This case presents the Court with an opportunity to update the law of this circuit governing the deployment of wireless telecommunications facilities under the federal Communications Act,” T-Mobile said. Since the 4th Circuit laid out its standard on what constitutes an effective prohibition in a 1998 case, AT&T Wireless v. City Council of Virginia Beach, “five other circuit courts have rejected the Fourth Circuit’s interpretation,” T-Mobile told the court.
In the case under appeal, T-Mobile filed an application to attach three antennas on a short extension of an existing electric pole located in a state-owned right-of-way after what it said was a “comprehensive and exhaustive investigation” of more than a dozen possible antenna sites. T-Mobile challenged the decision in federal court, but District Court Judge Gerald Lee ruled in favor of the Fairfax board, granting summary judgment.
T-Mobile said it needs to put up the antennas to close a gap in service in Fairfax County along a major commuter highway and in fully developed residential areas. Ultimately, T-Mobile determined that the best alternative was installing antennas on a Dominion Power pole, already used by AT&T and Verizon Wireless.
FCC filed an amicus brief in the case in which it sided with T-Mobile. The agency issued a declaratory ruling in November 2009,in response to a request by CTIA, which said that section 332(c)(7)(B)(i)(II) of the act “is not as narrow as the Court in Virginia Beach understood,” the FCC noted in its brief. The FCC “has a strong interest in ensuring that when a court adjudicates a dispute involving an ambiguous provision of the Act, the court honors the agency’s reasonable reading of the statute,” the FCC said.