In the latest stage of litigation involving a proposed cell tower in the town of Alton, the District Court found that the town had violated the "effective prohibition" provision of the federal Telecommunications Act (TCA) and ordered the town to permit the tower to be built.
Under the TCA, "the regulation of the placement, construction, or modification of personal wireless facilities by any State or local government … shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Courts interpreting this statute have looked at whether (a) a "significant gap" in this carrier's service coverage exists in an area, and if so, (b) whether there are alternatives to the carrier's proposed solution such that the prohibition of the proposed solution does not equal an effective prohibition on closing the gap. It does not matter for this analysis if another carrier has service in the area; each carrier is presumed to have the right under the TCA to close its own gaps.
This case was unusual because the two carriers involved, after initially having their variance requests denied by the ZBA, had reached a settlement agreement with the town. However, abutters who intervened in the case early in the litigation were not satisfied with the settlement and appealed the District Court's initial acceptance of the settlement. The Court of Appeals for the First Circuit agreed and sent the case back to the District Court for a trial on the issue of whether the town had effectively prohibited the carriers from closing a coverage gap. (The town, content to live with the settlement agreement, did not participate in the trial.) If there was effective prohibition, the District Court had the authority to order the town to permit the tower.
In an opinion spanning 85 pages, the District Court did just that. It found "the evidence is overwhelming" that the carriers had a significant gap in their wireless coverage in Alton. In addition, the Court found the carriers had investigated the alternatives. Rejecting the abutters' argument, and noting that no evidence had been submitted to support them, the court found that the carriers had met their burden in showing they investigated all other viable and feasible alternatives. While this analysis in every case will be dependent on the individual facts of that case, the court noted particularly that the law requires the carrier to show that there were no other "viable" alternatives, rather than the absence of any other "conceivable" alternatives. Many alternatives had been considered along the way in this case, but none were feasible except the one ultimately proposed. Having found both elements of effective prohibition, the District Court ultimately ordered the town to issue all permits required for the carriers to construct the tower in the configuration specified in the original settlement agreement.