T-Mobile Ne. LLC v. Town of Barnstable
| Decision Date | 17 June 2020 |
| Docket Number | Civil Action No. 19-cv-10982 |
| Parties | T-MOBILE NORTHEAST LLC, Plaintiff, v. THE TOWN OF BARNSTABLE et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff T-Mobile Northeast, Inc ("T-Mobile") has filed this lawsuit against the Town of Barnstable ("Barnstable"), the Town of Barnstable Zoning Board of Appeals ("ZBA"), the individual members of the ZBA, the Town of Barnstable Planning Board (the "Planning Board") and the individual members of the Planning Board (collectively, "Defendants"). T-Mobile claims that Defendants' denial of a special permit and regulatory agreement permitting T-Mobile to install and operate wireless antennas and equipment in a church steeple located in Barnstable violated the Telecommunications Act of 1996, 47 U.S.C. § 332 (the "TCA"). D. 1. Specifically, T-Mobile claims that the denials were not based on substantial evidence (Count I), that they have effectively prohibited T-Mobile from providing personal wireless services (Count II) and that the denials were impermissibly based on claims regarding the environmental effects of radio frequency emissions (Count III), all in violation of the TCA. Id. at ¶¶ 90-127. T-Mobile seeks declaratory and injunctive relief. Id. T-Mobile has now moved for summary judgment on all counts. D. 49. For the reasons stated below, the Court ALLOWS T-Mobile's motion for summary judgment as to Counts I and II and DENIES the motion as to Count III. D. 49.
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, 556 F.3d 20, 25 (1st Cir. 2009).
The following facts are drawn from T-Mobile's statement of material facts, D. 51, Defendants' response to this statement of material facts, D. 60, T-Mobile's further response to same, D. 64, and other supporting documents and are undisputed unless otherwise noted.
T-Mobile provides wireless telecommunications services pursuant to licenses issued by the Federal Communications Commission ("FCC"). D. 64 ¶ 1. Cellular telecommunications systems operate on various wireless spectrums that are regulated by the FCC, which issues licenses tocarriers for each spectrum band allocated for cellular phone technology. D. 64 ¶ 4. T-Mobile currently holds licenses for frequency bands at 1900 MHz, 2100 MHz, 700 MHz and 600 MHz. D. 64 ¶ 5. Each band has different performance characteristics related to both coverage area and capacity. D. 64 ¶ 6. Low-band frequencies, such as the 700 MHz frequency, can serve a greater coverage area but have less capacity, whereas mid-band frequencies, such as 1900 MHz and 2100 MHz, are able to support a larger capacity of users with greater throughput, but have a more limited coverage range. Id. The 2100 MHz frequency is T-Mobile's primary frequency of operation, providing the most capacity and throughput. D. 64 ¶ 7. Cellular technology users are prioritized on the 2100 MHz frequency, then the 1900 MHz frequency and then, if needed, the low-band frequencies. D. 64 ¶ 8. As a user moves out of the coverage area for the low-band frequencies, their connection will drop. Id.
Gaps in wireless service coverage can result from a lack of reliable signal coverage and strength or a lack of system capacity. D. 64 ¶ 11. Gaps in service lead to an inability for users to place calls, low voice call quality, low connection speeds and an increase in dropped calls. D. 64 ¶ 12. Based upon analysis by radio frequency engineers, T-Mobile has identified a gap in its residential in-building wireless coverage and capacity in its 1900 MHz and 2100 MHz frequencies in Barnstable in the area in and around the South Congregational Church in Centerville, Massachusetts (the "Proposed Site"). D. 64 ¶¶ 10, 13. T-Mobile reviewed Key System Performance Indicator Data that indicated that the existing 700 MHz signal in the area of the gap is not able to meet T-Mobile's service and performance objectives, creating a gap in service for users. D. 64 ¶¶ 21-26. T-Mobile alleges that the gap in service is based on a lack of reliable in-building residential coverage. D. 64 ¶ 14. T-Mobile further claims that the gap encompasses residential homes, commercial establishments and Craigville Beach, a popular tourist destination.D. 64 ¶ 17. Defendants do not dispute that the area includes commercial establishments, but counter that the commercial establishments are structurally similar to residential homes. Id. T-Mobile claims that, pursuant to census data, there are approximately 6,632 residents in the area of the coverage gap. D. 64 ¶ 18. Defendants do not dispute that they lack a factual basis to contradict T-Mobile's findings regarding the lack of coverage and capacity at the 2100 MHz frequency around the Proposed Site. D. 64 ¶ 20.
To remedy the gap in coverage, T-Mobile's engineers identified a "search ring" within the overall gap area within which a new facility would need to be constructed. D. 64 ¶ 28. An appropriate candidate for a new facility within the search ring would have to work within T-Mobile's existing network, comply with zoning requirements, have a landlord willing to allow the installation and be capable of being built on. D. 64 ¶ 32. T-Mobile evaluated numerous potential locations before concluding that the Proposed Site was the only one that satisfied the criteria. See D. 64 ¶¶ 33-58. Defendants have not identified another feasible location on which the wireless facility could be built that would provide the necessary coverage and capacity. D. 64 ¶ 59. On May 31, 2017, T-Mobile entered into a lease with the Proposed Site for the construction of the wireless facility at the location. D. 64 ¶ 61. On September 25, 2017, Defendants issued T-Mobile a building permit that authorized installation of the wireless facility at the Proposed Site. D. 64 ¶ 62.
After construction was substantially complete, citizens of Barnstable claimed that the Proposed Site was located in a designated "District of Critical Planning Concern" ("DCPC")1, which prohibited the telecommunications facility. See D. 64 ¶ 65. T-Mobile contends that none of the maps or records they reviewed while conducting due diligence indicated that the Proposed Site fell within a DCPC. Id. T-Mobile consulted with Defendants regarding next steps required to obtain permission to build the wireless telecommunications facility in the DCPC and submitted two applications—a zoning application and an application for a regulatory agreement. D. 64 ¶ 66. The zoning application, which was submitted to the ZBA, included an application for site plan review and an application for a special permit or, in the alternative, a use variance. D. 64 ¶ 67. The zoning application sought permission to install a wireless telecommunications facility that consisted of six antennas within the church steeple at a centerline height of sixty feet along with appurtenant equipment that would be located in the basement of the Proposed Site. D. 64 ¶ 68. The application also indicated that changes to the outer parts of the church would match the "color, texture and existing architectural characteristics" of the structure. D. 64 ¶ 69.
The ZBA held a hearing on T-Mobile's application on September 26, 2018, which was then continued to November 7, 2018, January 9, 2019, February 27, 2019 and March 27, 2019. D. 64 ¶ 73. During the initial public hearing, the ZBA asked that T-Mobile submit a statement addressing whether the ZBA had jurisdiction to grant the relief sought. D. 64 ¶ 74. T-Mobile responded on October 12, 2018 with a statement explaining their conclusion that the ZBA hadjurisdiction. Id. An attorney for Barnstable testified at the January 9, 2019 hearing, opining that the DCPC regulations did not allow relief from their restrictions on wireless facilities through a special permit or variance. D. 64 at 35 ¶ 7. During the March 27, 2019 hearing, T-Mobile sought to introduce evidence, including testimony; however, the ZBA refused to hear the evidence and voted to deny the zoning application on the basis that it lacked jurisdiction to grant the requested relief. D. 64 ¶¶ 75-76. The ZBA issued "Suggested Findings Addressing Jurisdiction" on April 3, 2019 and issued a written final decision on April 10, 2019. D. 64 ¶¶ 77-78. In that written decision, the ZBA noted that the implementing regulations governing the DCPC do not include wireless telecommunications facilities as a permitted use. See D. 54-12 at 4. The ZBA further found that the section of the Barnstable Code that allows for the issuance of variances is not incorporated into the regulations governing the DCPC and, therefore, the ZBA lacked jurisdiction to grant a variance to install a wireless telecommunications facility. Id.
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