Omnipoint Holdings, Inc. v. City of Cranston

• Decision Date: 03 November 2009
• Docket Number: No. 08-2491.,08-2491.
• Citation: 586 F.3d 38
• Parties: OMNIPOINT HOLDINGS, INC., Plaintiff, Appellee, v. CITY OF CRANSTON; the Zoning Board of Review of the City of Cranston; Joy Montanaro, Member, City of Cranston Zoning Board of Review; Edward Dimuccio, Member, City of Cranston Zoning Board of Review; Curtis Ponder, Member, City of Cranston Zoning Board of Review; Frank Corso III, Member, City of Cranston Zoning Board of Review; and Donald Curran, Member, City of Cranston Zoning Board of Review, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

586 F.3d 38

OMNIPOINT HOLDINGS, INC., Plaintiff, Appellee, v. CITY OF CRANSTON; the Zoning Board of Review of the City of Cranston; Joy Montanaro, Member, City of Cranston Zoning Board of Review; Edward Dimuccio, Member, City of Cranston Zoning Board of Review; Curtis Ponder, Member, City of Cranston Zoning Board of Review; Frank Corso III, Member, City of Cranston Zoning Board of Review; and Donald Curran, Member, City of Cranston Zoning Board of Review, Defendants, Appellants.

No. 08-2491.

United States Court of Appeals, First Circuit.

Heard September 9, 2009.

Decided November 3, 2009.

Jeffrey S. Michaelson with whom Michaelson & Michaelson were on brief for appellants.

William A. Worth with whom Thomas M. Elcock and Prince, Lobel, Glovsky & Tye LLP were on brief for appellees.

Before LYNCH, Chief Judge, GAJARSA^* and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

In this case a wireless carrier was denied a variance and special use permit by the Cranston Zoning Board of Review to build a wireless communications tower in Cranston, Rhode Island. The carrier had so applied in order to remedy a significant gap it found in coverage.

When the carrier sought federal court review of the denial, the city and zoning board countered that the zoning board's decision was not a "final action" because limited state court review was available. The district court rejected the argument. Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, 2007 WL 2050316, at *4-5 (D.R.I. July 12, 2007) (order denying motion to dismiss) (City of Cranston I). After a two-day bench trial, the court granted judgment for the plaintiff. Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, slip op. at 8, (D.R.I. Oct. 23, 2008) (City of Cranston II). It held that the town's denial of the permits constituted an effective prohibition of service in violation of § 332(c)(7)(B)(i)(II) of the Telecommunications Act of 1996 ("TCA"), Pub.L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.). Id. at 2, 8.

We now affirm. On an issue of first impression in the circuit courts, we hold that the zoning board's decision was a "final action" for purposes of § 332(c)(7)(B)(v) of the TCA. We also reject the defendants' claims that the court erred in finding that the zoning board's decision "ha[d] the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II).

I.

We recite the facts in the trial record in the light most favorable to the verdict. Marcano Rivera v. Turabo Medical Center P'ship, 415 F.3d 162, 165 (1st Cir.2005).

T-Mobile USA, Inc. ("T-Mobile") has a Federal Communications Commission ("FCC") license to operate a digital personal communications service ("PCS") wireless network at 1900 megahertz in Rhode Island under which Omnipoint, T-Mobile's wholly owned subsidiary, operates. Omnipoint provides wireless service to customers through a network of antennae mounted on towers or other structures, often called wireless facilities, that broadcast signals between towers and to customers' wireless phones and devices. When Omnipoint realizes that an area within its network lacks sufficient coverage for customers to make and maintain calls reliably, it tries to remedy the coverage gap by building a new facility.

The key to coverage is having a strong-enough signal level for customers to maintain contact with the network so they can make and maintain calls. Signal level, the strength of the radio signal customers' devices receive, is measured in negative decibels per milliwatt ("dBm").¹ The nature of Omnipoint's digital PCS network makes keeping signal levels strong more difficult than if it had provided analog-based cellular service. PCS towers broadcast lower signals at a much higher frequency, so those signals cover a smaller area, usually about 1.5 miles. Consequently, PCS providers must build a network of towers relatively near each other, creating an overlapping grid of signals from the towers resembling a honeycomb. For example, Omnipoint has at least sixteen towers within four miles of the proposed tower at issue in this case.

Because its customers value reliable network coverage, Omnipoint has established a national goal of 95 percent reliability for the network, meaning that customers should be able to make and maintain 95 percent of their calls. To meet this goal, Omnipoint has established -84 dBm as its minimum signal strength for in-vehicle coverage nationwide. Federal law does not require any specific signal level; Omnipoint has set high standards to satisfy its customers.

Omnipoint first determined that signal levels around Phenix Avenue in Cranston fell below -84 dBm through a propagation study, a computer program that predicts signal levels. Phenix Avenue is heavily traveled because it is a main road connecting Cranston to the nearby towns of Warwick and Coventry. A consulting engineer for Omnipoint, Elijah Luutu, determined that Omnipoint likely needed a new facility in the area to service this traffic. Later he conducted a drive test, during which he drove a wireless device around the area and mapped the signals it was receiving, which confirmed this conclusion. Based on the propagation study, Luutu designed a "search ring" for Omnipoint staff to find potential locations for the new facility around November 18, 2003. Factoring in topography and the height of the area's tree canopy, Luutu calculated that Omnipoint needed to build or find a ninety-foot pole for the new facility.

Omnipoint employees examined the search ring for suitable sites. They looked, in order of preference, for existing towers belonging to other wireless companies, existing structures to mount a facility on, and raw land to construct a facility on. They also considered the ease of building a new facility, the radio frequency needs of the area, and zoning issues when evaluating candidates. An employee searched the area and FCC databases and did not find suitable existing towers, so that option was excluded. He identified four potential sites: the Cranston Fire Department Museum, two different sites at the Cranston Country Club, and the Solid Rock Church. No other structures in the search ring were tall enough to meet Omnipoint's radio frequency requirements. Luutu rejected the museum site because it would provide largely redundant coverage with another tower without covering most of the gap.

With the exclusion of the museum site, Omnipoint came down to three options: an extant utility pole or raw land (to put up a pole) on the country club's property, or land on the property of the Solid Rock Church in Cranston. Omnipoint first negotiated with the country club. Omnipoint needed an easement to install power lines to the proposed facility on the country club's utility pole, so it offered the country club first its standard rate of $1,500 and then its enhanced lease rate of $2,000 per month. The club rejected both offers on the ground that installing power lines could damage its golf course's fairways. Omnipoint then offered the country club both the $1,500 and $2,000 lease rates to build a facility on the club's raw land. When the club's three owners could not agree whether to pay the lease proceeds to themselves or to the club, Omnipoint offered a one-time payment of $25,000 (in addition to the monthly rate) to whichever owner would agree to the other side's position. The owners refused to compromise, however, and Omnipoint abandoned negotiations with the country club.²

Omnipoint then turned to the property of the Solid Rock Church and offered $1,500 per month to lease the raw land to construct a ninety-foot tower disguised as a flagpole. The church accepted. It is this site which is the subject of this controversy. The pole was not in conformance with Cranston's zoning ordinances because, given its height, it was too close to the property's southern border. Omnipoint and Solid Rock Church jointly applied for a variance and special use permit on September 21, 2005, almost two years after Omnipoint began searching for a site.

On November 9, 2005, the City of Cranston Planning Commission, which may offer nonbinding recommendations to the zoning board, held a public hearing and issued a written recommendation that the board deny Omnipoint's application because Omnipoint did not "demonstrate[] that existing nearby facilities c[ould not] accommodate the service need." The Cranston Zoning Board of Review then conducted two public hearings on April 12, 2006, and September 13, 2006. The board issued a written decision on November 7, 2006, denying Omnipoint's application without then giving a statement of the reasons for its decision.

II.

Omnipoint sued the city, the zoning board, and all five members of the zoning board (collectively "Cranston") in federal district court on December 6, 2006, under the TCA. It claimed that Cranston had violated the TCA because it had effectively prohibited the provision of personal wireless services by refusing to grant Omnipoint's application.³ Omnipoint sought an injunction requiring the board to grant Omnipoint's request for a variance and special use permit and an injunction and order of mandamus ordering the city of Cranston to issue a building permit for constructing the tower.

Cranston moved to dismiss Omnipoint's complaint, arguing that the district court lacked what it referred to as subject matter jurisdiction. Because Rhode Island law permits parties to petition the state superior court for limited review of a zoning board's decision, Cranston contended, the zoning board's decision was not a "final action" creating federal jurisdiction under § 332(c)(7)(B)(v). The district court rejected the argument and held the board decision was a "final action" and that the TCA permitted Omnipoint to bypass Rhode Island state court review. City of Cranston I, 2007 WL 2050316, at *4-5.

The district court held a two-day bench trial on June 27 and July 9,...