Prohibition


Sheldon L. Pine’s testimony
Sheldon L. Pine’s testimony on March 4th, 2019 to the City of Gaithersburg on the legal meaning of "Effective Prohibition" .
    Effective Prohibition

MocoSafeG.org analysis

Even though FCC 18–133 Section 332(C)(7)(B)(i)(II) mandates that local governments cannot prohibit the provision of wireless services, interpretation of what constitutes an effective prohibition is merely an "interpretive rule." Local siting authorities are not bound by it, nor does it bind a federal district court hearing a challenge to a local decision on an application. It is merely an interpretation –– and a persuasive rather than a binding authority.

What does apply and bind any particular local siting authority or a federal district court is the precedent established by the circuit court of appeals that presides over the area. Maryland is bound by U.S. Court of Appeals, Fourth Circuit rulings. The 4th Circuit will decide whether its current prohibition test is the same or different than new FCC test –– and if different, whether to now agree with the FCC and change the applicable test.

Meanwhile, the precedent for Maryland to follow is found in New Cingular Wireless v. Fairfax –– which in turn relied on T-Mobile v Newport News. In the former case, these two standards were established for effective prohibition for the plaintiff:
  1. must show a legally cognizable deficit in coverage amounting to an effective absence of coverage, and
  2. must show that it lacks reasonable alternative sites to provide coverage

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It seems to me that Andrew Campanelli’s verbiage for effective prohibition still helps us here in the 4th Cir. area if we continue to use “significant gap” in coverage and “least obtrusive means”. Now, however, we can cite New Cingular Wireless v. Fairfax –– which in turn relied on T-Mobile v Newport News. We can ALSO substitute the above actual precedent case verbiage that’ll be so impressive (&/or intimidating) to elected officials, their staff, &/or their counsel who are seemingly paying NO legally-effective ATTENTION to what is/n’t applicable/binding ! ! !
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My thanks go out to "counsel" who graciously looked up our Circuit because he emailed me that the interpretation that I sent him may be “fairly correct in some circuits, but not correct in others.” Additionally, he found the still-most-current precedent (that’s still worthy of double-checking), and excerpted pertinent sections that I now encourage the group to review –– as attached below.

We suspect that the 9th Cir. (?) precedents that Scientists for Wired Tech follow may be different than ours in the 4th Cir.. However, this video evidence is still worth disseminating from Verizon: Millimeter Waves Go 3,000 Feet:
CONCLUSION –– given the video evidence
There is no need to install Close Proximity Microwave Radiation 4G/5G Antenna Wireless Telecommunications Facilities (CPMRA-WTFs) on utility/light poles.
The least intrusive means to close a significant gap in coverage is for wireless companies to collocate 4G/5G antennas on macro towers.

NEXT STEPS ––
–– Update your City/Municipal/County code provisions so that wireless companies must prove a the least intrusive means to close a significant gap*** in coverage –– with no alternative.


We next consider whether the Board's decision complied with subsection (B)(i)(II) of the Act, which forbids decisions on tower placement that have the effect of prohibiting a carrier from providing personal wireless services to the area. *276 We recently decided a similar question in T-Mobile Northeast, LLC v. Fairfax County Board of Supervisors, 672 F.3d 259 (4th Cir.2012), in which we recognized that

the language of this subsection does not encompass the ordinary situation in which a local governing body's decision merely limits the level of wireless services available because, as we have explained, the Act cannot guarantee 100 percent coverage.

672 F.3d at 268. Moreover, we stated that

we emphasize that a plaintiff's burden to prove a violation of subsection (B)(i)(II) is substantial and is particularly heavy when, as in this case, the plaintiff already provides some level of wireless service to the area.

Id. Lastly, we made clear in T-Mobile that

a plaintiff must meet one of two standards to prevail under subsection (B)(i)(II). The plaintiff must establish: 1) that a local governing body has a general policy that effectively guarantees the rejection of all wireless facility applications, Albemarle County, 211 F.3d at 87; Virginia Beach, 155 F.3d at 429; or 2) that the denial of an application for one particular site is "tantamount" to a general prohibition of service, Albemarle County, 211 F.3d at 87-88.

In asserting a claim under this second theory, as T-Mobile does here, a plaintiff must show a legally cognizable deficit in coverage amounting to an effective absence of coverage, and that it lacks reasonable alternative sites to provide coverage. See id. at 87-88. We also have stated that the plaintiff should be able to demonstrate that further reasonable efforts to gain approval for alternative facilities would be "fruitless." See [Montgomery County], 343 F.3d [at] 269; Albemarle County, 211 F.3d at 88.

Id. at 267-68. As explained presently, even if we were to assume under T-Mobile's "second theory" that AT&T provided evidence establishing a prima facie case of an effective absence of coverage, it simply failed to provide evidence to establish "a lack of reasonable alternative sites."

In seeking to present evidence of a lack of reasonable alternatives, AT & T contends that it "presented evidence that it had examined numerous other locations, but they were unusable or unavailable."[6] Br. for Appellant at 45. One of these locations. Fort Hunt National Park, was in AT&T's view "unavailable" because previous attempts by Verizon, a competing carrier, to locate two wireless facilities in nearby national parks indicated that park officials "were `loathe' [sic] to locate wireless facilities on park property, and applications can take years to process with no certainty of outcome." Id.; see also Reply Br. for Appellant at 26 ("[P]ark officials are loathe [sic] to allow such facilities and applications can take years to process with no certainty of outcome.").

The plaintiff in T-Mobile advanced a very similar argument, contending that alternative sites were unavailable as a practical matter because a national "park's policy prohibit[ed] the placement of poles in the park until other alternatives are eliminated." 672 F.3d at 269. The Court swiftly discarded this assertion, finding "the difficulties presented in meeting such restrictions *277 are insufficient to establish that a provider lacks reasonable alternatives for the provision of its services." Id. at 269.

Here, AT&T provides even less evidence than did T-Mobile. As discussed above, the entirety of AT&T's argument on this point is its bare assertion, based on nothing but the speculation of a consultant, that Fort Hunt National Park "was not a feasible option because park officials were `loathe' [sic] to locate wireless facilities on park property, and applications can take years to process with no certainty of outcome." Br. for Appellant at 45; Reply Br. for Appellant at 26. As we concluded in T-Mobile, since a national park's general policy of denying applications because other sites have not been eliminated as possibilities constitutes insufficient evidence to prove a § 332(c)(7)(B)(i)(II) claim, all the more so are the wholly speculative assertions provided here. For even if park officials might have been "loath" to approve a proposal, a plaintiff's mere reference to a competitor's prior experience seeking to locate undescribed and unknown facilities in different parks, without more, is insufficient evidence on which to establish a lack of reasonable alternative sites.

We thus agree with the district court's conclusion that because AT & T "has yet to even submit ... an application to Fort Hunt National Park authorities," AT&T's argument "that there are `no other feasible alternatives' to the Masonic Lodge site is unpersuasive." New Cingular, 2010 WL 4702370, at *9.

Moreover, where a plaintiff asserts a claim that a denial of an application is tantamount to a general prohibition of service, we have also required that plaintiff "to demonstrate that further reasonable efforts to gain approval for alternative facilities would be fruitless." T-Mobile, 672 F.3d at 268 (internal quotation and citation omitted). A plaintiff can satisfy this burden only where further efforts would be "so likely to be fruitless that it is a waste of time to try." Montgomery County, 343 F.3d at 268; Albemarle County, 211 F.3d at 88 (quoting Town of Amherst, N.H. v. Omnipoint Commc'ns Enters., Inc., 173 F.3d 9, 14 (1st Cir. 1999)). Although AT & T argues that applications to place a telecommunications facility on a national park "can take years to process with no certainty of outcome," such an allegation is purely speculative and without any factual basis in the record. Thus, AT&T has not established that it would be "likely" that an application would fail.

Based on the failure of proof by AT&T, the district court correctly granted summary judgment to the Board on AT & T's claim that the Board's denial of its application violated subsection B(i)(II) of the Act.

    https://www.courtlistener.com/opinion/625661/new-cingular-wireless-pcs-llc-v-fairfax-county/