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Wading into Circuit Splits, Sixth Circuit Upholds Injunction Against Michigan Township for Violating Telecommunications Act

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Last week, the Sixth Circuit upheld a district court’s grant of partial summary judgment in favor of T-Mobile for violations of the Telecommunications Act.  (T-Mobile Central, LLC v. Charter Township of West Bloomfield)  Interpretation of the Act has led to significant splits among the circuit courts, as outlined in the Court’s opinion.  The defendant, West Bloomfield Township, denied T-Mobile’s application to build a cellular tower in the township to remove a gap in coverage.  T-Mobile filed the lawsuit to require the Board to grant its application.

47 U.S.C. § 332(c)(7)(B)(iii) requires a township to support its denial of a request to place wireless facilities with “substantial evidence contained in a written record.”  As the Court pointed out, its precedents had not previously addressed the question of “what must the substantial evidence in the record show in order to avoid a violation of [the statute]?”  The Sixth Circuit applied the substantial evidence standard as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The Board faced objections to the application based on a section of the local zoning ordinance requiring facilities to be “located and designed to be harmonious with the surrounding areas.”  The Sixth Circuit found that the evidence supporting this concern was “hardly substantial.”  The Court found that the Board’s evidence was merely unsubstantiated allegations.  The Township also argued that a shorter tower would have been sufficient.  However, the Township failed to demonstrate with substantial evidence that the shorter tower would have allowed other cell carriers to use the tower (something required by zoning ordinance). 

The Court also considered whether the Township’s denial violated 47 U.S.C. § 332(c)(7)(B)(i)(II), which states that the regulation of cell tower construction “shall not prohibit or have the effect of prohibiting the provision of personal wireless service.”  The Court began its analysis by finding that the denial of a single application could constitute a violation of the statute.  The Court adopted the Ninth Circuit’s two part test to determine if there was a violation.  This test requires courts to consider whether there is a significant gap in coverage and the feasibility of alternative sites.  The Sixth Circuit found that a significant gap can be based only on a gap in the individual carrier’s service, regardless of whether other carriers currently provide service in that area.  When evaluating the feasibility of alternative sites, the Sixth Circuit adopted a standard requiring the carrier to show that its proposed site “is the least intrusive on the values that the denial sought to serve.”  T-Mobile was able to satisfy the requirements of this two-part test.  Therefore, the Sixth Circuit found that the Township had violated the statute.