In Fairview Township v. Fairview Township Zoning Hrg. Bd., ____ A.3d ____, 493 C.D. 2018, 2020 WL 2844227 (Pa. Cmmw. June 2, 2020) and Horvath Towers V, LLC v. Indiana Township Bd. of Supervisors, et al., 1579 C.D. 2019, 2020 WL 3068737, at *8 (Pa. Cmmw. June 10, 2020) (unreported), the Commonwealth Court affirmed that municipalities still have the power to reject applications to erect cell towers that do not meet the requirements of their zoning ordinances even if an applicant demonstrates a significant gap in coverage and makes a good faith effort to identify lesser intrusive alternatives. Specifically, the Fairview Township court concluded variances do not need to be granted merely because a gap in coverage exists if the denials are based on applicant not meeting the variance requirements of the Pennsylvania Municipalities Planning Code (“MPC”). The Horvath court, in turn, held that applications can be rejected if the applicant does not demonstrate compliance with objective conditional use requirements.
The Telecommunications Act of 1996, 47 U.S.C. §§ 151-624, (“TCA”) expressly preserves the authority of state and local governments to regulate land use and zoning, but places several substantive and procedural limits upon that authority when exercised in relation to personal wireless service facilities. APT Pittsburgh Ltd. v. Penn Twp. Butler Cty. of Pa., 196 F.3d 469, 473 (3d Cir. 1999). One such substantive requirement is Section 332(c)(7)(B) of the TCA, which states:
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any [s]tate or local government or instrumentality thereof — …
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
47 U.S.C. § 332(c)(7)(B). While the TCA does not define what it means to “prohibit” or “have the effect of prohibiting,” the Third Circuit has concluded that a state or local government has effectively prohibited the provision of wireless services where a carrier has demonstrated that (1) its facility will fill a significant gap in service, and (2) the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Paramus N.J., 606 F. App’x 669, 671 (3d Cir. 2015); APT Pittsburgh Ltd., 196 F.3d at 480.
There are two approaches to use when deciding if there is a significant gap in the ability of remote users to access the national telephone network. The ‘user-oriented’ approach (also known as the “one-provider rule”), followed by the Third Circuit, requires the applicant to demonstrate that ‘the area the new facility will serve is not already served by another provider.’ Omnipoint Comm. Enters., L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 398 (3d Cir. 2003). The “multi-provider” approach, which is endorsed by the Federal Communications Commission (“FCC”), requires applicants to merely show that they do not provide reliable service in a given area, regardless of other carriers’ service in the same area. See In Re: Petition for Declaratory Ruling to Clarify Provisions of § 332(c)(7)(B), 24 FCC Rcd 13994, Section C (F.C.C. 2009) (“2009 Declaratory Ruling”).
In addition, on September 26, 2018, the FCC issued an additional Declaratory Ruling in which it reaffirmed its interpretation of the effective prohibition standard, “namely, that a state or local legal requirement constitutes an effective prohibition if it ‘materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.’” In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Invest., 33 F.C.C.R. 9088, 9102 ¶ 35 (2018), 2018 WL 4678555 *12 (“2018 Declaratory Ruling”). In the 2018 Declaratory Ruling, the FCC also held that the relevant inquiry is no longer limited to just a gap in service for a particular provider, but also includes a particular service provider’s efforts to densify, expand or otherwise improve its existing service capabilities.
The Declaratory Rulings raised concerns that, to comply with TCA, municipalities would have to authorize (via variance or otherwise) a cell tower simply because a provider had a gap in coverage or needed to expand, densify or otherwise improve its coverage, even if the application did not meet the requirements of the zoning ordinance or the MPC. In Fairview Township, however, the Commonwealth Court held that the TCA does not “trump” local zoning authority.
The issue in Fairview Township was whether the denial of variances “prohibits or has the effect of prohibiting the provision of personal wireless services”. 47 U.S.C. § 332(c)(7)(B)(i)(II). The Commonwealth Court noted that in rejecting the “one provider” rule, the FCC’s 2009 Declaratory Ruling stated that “it is a violation of Section 332(c)(7)(B)(i)(II) [of the TCA] for a State or local government to deny a personal wireless service facility siting application solely because that service is available from another provider.” Additionally, the 2009 Declaratory Ruling stated that “where a bona fide local zoning concern, rather than the mere presence of other carriers, drives a zoning decision, it should be unaffected by our ruling today.” Id. at 14018 ¶ 62.
The Commonwealth Court found that the FCC’s 2009 Declaratory Ruling directs courts to look at what “drives” the zoning decision or, in other words, on what the decision is based. In Fairview Township, the denial of the variances was not “solely because” the service is available from another provider but, rather, was based on a bona fide local zoning concern (i.e., applicant failed to establish three of the five elements necessary for a variance under the MPC). Accordingly, because the denials were not based solely on the presence of other providers, they did not violated the TPC. As explained by the Commonwealth Court:
There is a difference between: (1) mandating the granting of an application for a cell tower simply because a provider has a significant gap in coverage and has proposed the least intrusive means to remedy it; and (2) prohibiting the denial of an application solely on the basis that another provider is covering an area. The two are not the same. The FCC’s ruling does only the latter.
The Court determined that its holding was also consistent with the 2018 Declaratory Ruling.
Accordingly, to comply with the TCA, a state or local regulatory authority cannot deny an application based solely on the fact that another provider provides coverage or that there is coverage in the area. It can however, deny an application if it does not meet the requirements of its zoning ordinance. As noted above, in Fairview Township, the Commonwealth Court concluded variances do not need to be granted merely because a gap in coverage exists if the denials are based on applicant not meeting the variance requirements of the MPC (e.g., hardship) and are not based solely upon another provider’s ability to provide coverage in the gap or based upon applicant’s existing coverage.
Similarly, in Horvath, the Court found that a municipality did not violate the TCA when its denial was based on an applicant’s failure to satisfy objective conditional use requirements set forth in its zoning ordinance. The Court concluded that compliance with this objective criteria constituted a “bona fide local zoning concern” and had nothing to do with whether service was available from another provider or whether the applicant had a gap in its coverage.
In Fairview Township and Horvath, the Commonwealth Court preserved local zoning authority and severely limited the impact of the TCA on local zoning decisions. This limitation should certainly not be interpreted as removing the TCA from consideration when examining cell tower applications. To the contrary, the Fairview Township court, in a footnote, recognized that the 2009 Declaratory Ruling provides:
the denial of an application may sometimes establish a violation of Section 332(c)(7)(B)(ii) if it demonstrates a policy that has the effect of prohibiting the provision of personal wireless services as interpreted herein. Whether the denial of a single application indicates the presence of such a policy will be dependent on the facts of the particular case.
Accordingly, a zoning ordinance designed to unreasonably limit cellular towers could face scrutiny. However, the Fairview Township and Horvath decisions make reasonable zoning regulations much easier to defend and enforce.
