Omnipoint Holdings v. City of Cranston, et al

Filing 920091103

Opinion

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var WPFootnote1 = '                   Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = '                   Because it is measured in negative figures, the larger\
the dBm number, the weaker the signal. Thus a signal strength of\
-100 dbm is weaker than a signal of -80 dbm.\
'

var WPFootnote3 = '                   The record suggests Omnipoint negotiated with the country\
club for about five months in total.\
'

var WPFootnote4 = '                   Omnipoint also claimed the board failed to support its\
decision with substantial evidence because the board gave no\
reasons for denying Omnipoint\'s application. See 47 U.S.C.\
§ 332(c)(7)(B)(iii). During litigation Cranston provided Omnipoint\
with a comprehensive explanation for the denial that the board kept\
on file. In response, Omnipoint has dropped its substantial\
evidence claim.\
'

var WPFootnote5 = '                   Cranston frames this as a question of whether the federal\
court had "subject matter jurisdiction," which is a questionable\
articulation. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510\
(2006) ("This Court, no less than other courts, has sometimes been\
profligate in its use of the term [jurisdiction]."); Eberhart v.\
United States, 546 U.S. 12, 15-16 (2005) (per curiam); Scarborough\
v. Principi, 541 U.S. 401, 413-14 (2004); Kontrick v. Ryan, 540\
U.S. 443, 454-55 (2004)("Clarity would be facilitated if courts and\
litigants used the label \'jurisdictional" not for claim-processing\
rules, but only for prescriptions delineating the classes of cases\
(subject-matter jurisdiction) and the persons (personal\
jurisdiction) falling within a court\'s adjudicatory authority.");\
Steel Co. v. Citizens for a Better Env\'t, 523 U.S. 83, 90-91\
(1998). \
              The relevant section of the TCA, 47 U.S.C. § 332(c)(7)(B)(v),\
does not clearly state that the final action requirement is\
jurisdictional. Under Arbaugh, this is a highly relevant\
consideration. 546 U.S. at 514-16; accord Chao v. Hotel Oasis,\
Inc., 493 F.3d 26, 33 (1st Cir. 2007). Given our holding, however,\
we need not decide whether the issue is one of jurisdiction.\
'

var WPFootnote6 = '                   Rhode Island has a separate statute governing state court\
review of zoning decisions. It provides, "An aggrieved party may\
appeal a decision of the zoning board of review to the superior\
court . . . within twenty (20) days after the decision has been\
recorded and posted." R.I. Gen. Laws § 45-24-69(a). Under Rhode\
Island law, a state court may reverse the zoning board only on six\
limited grounds and cannot "substitute its judgment for that of the\
zoning board of review as to the weight of the evidence on\
questions of fact." Id. § 45-24-69(d). Notably, this statute does\
not even mandate state court review. See id. § 45-24-69(a)\
(stating that parties "may" seek state court review of zoning board\
decisions).\
'

var WPFootnote7 = '                   The Fourth Circuit has rejected any standard beyond the\
language in the statute. 360 Degrees Commc\'ns Co. of\
Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 87 (2000). But\
it has applied a version of this test in at least one case. See\
id. at 87-88 (assuming a "significant gap[]" existed and holding\
that the carrier failed to show no alternatives were feasible).\
'

var WPFootnote8 = '                   Contrary to Cranston\'s argument, the district court did\
not shift the burden of proof to it. The court merely assessed\
Maxson\'s persuasiveness as an expert based on the quality of\
support he provided for his opinions.\
'

var WPFootnote9 = '                   Courts since have built on this decision. Citing Town of\
Amherst, the Second Circuit held that local authorities cannot\
reject a carrier\'s plan that offers "the least intrusive means for\
closing a significant gap." Willoth, 176 F.3d at 643. The court\
listed "numerous ways [carriers could] limit the aesthetic impact\
of a cell site" without sacrificing coverage. Id. The Third and\
Ninth Circuits followed Willoth, holding carriers must prove their\
solution is "the least intrusive on the values that the denial\
sought to serve." Penn Twp., 196 F.3d at 480; MetroPCS, 400 F.3d\
at 734-35 (internal quotation marks omitted). The provider must\
prove it made "a good faith effort" to "identify and evaluate less\
intrusive alternatives." Penn Twp., 196 F.3d at 480. The Seventh\
Circuit rejected the least-intrusive-means test, opining it\
undermined local autonomy and strayed from the statutory text, and\
it instead adopted our feasible-alternative analysis. St. Croix\
County, 342 F.3d at 834-35 & n.8 (citing 360 Degrees Commc\'ns, 211\
F.3d at 87). The Seventh Circuit then applied the Town of Amherst\
test to hold there was no effective prohibition when a carrier\
produced no evidence it considered alternatives. Id. at 834-36. \
The Ninth Circuit, however, adopted the least-intrusive-means test\
because it thought the "only feasible plan" test was "too\
exacting." MetroPCS, 400 F.3d at 734.\
'

var WPFootnote10 = '                   Local authorities face what commentators call the "not in\
my backyard" ("NIMBY") problem: property owners resist new\
facilities in populated areas because they find wireless facilities\
unsightly and worry facilities lower property values; yet as cell\
phone consumers these same people want quality service where they\
are most. E.g., D. Hughes, When NIMBYs Attack: The Heights to\
Which Communities Will Climb to Prevent the Siting of Wireless\
Towers, 23 J. Corp. L. 469, 482-83 (1998); S. Eagle, Wireless\
Telecommunications, Infrastructure Security, and the NIMBY Problem,\
54 Cath. U. L. Rev. 445, 455-57 (2005). Residents often pressure\
town authorities to tighten and strictly enforce zoning\
restrictions on wireless facilities, creating numerous pockets of\
resistance for wireless carriers. Hughes, supra, at 470-71, 482-84.\
'

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