Sun State Towers LLC v. Coconino, County of

Filing 30

ORDER - IT IS THEREFORE ORDERED that the Request for Expedited Review Pursuant to 47 U.S.C. § 332(c)(7)(B)(v) of Plaintiff Sun State Towers, LLC (Doc. 1 ) is DENIED without prejudice to its renewal based on subsequent facts. IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge G Murray Snow on 10/25/17. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Sun State Towers LLC,

10

Plaintiff,

11

ORDER

v.

12

No. CV-17-08075-PCT-GMS

County of Coconino,

13

Defendant.

14
15

Pending before the Court is the Request for Expedited Review Pursuant to 47

16

U.S.C. § 332(c)(7)(B)(v) of Plaintiff Sun State Towers, LLC (“Sun State”) (Doc. 1). For

17

the following reasons, the Court denies the request without prejudice to its renewal on

18

appropriate subsequent facts.
BACKGROUND

19
20

Plaintiff Sun State is a limited liability corporation registered and doing business

21

in Arizona. Plaintiff’s business is to build wireless service facilities and lease those

22

facilities to wireless service providers. In this case, Plaintiff seeks to build a wireless

23

service facility in Coconino County, Arizona and lease the facility to Verizon Wireless

24

(“Verizon”). Verizon identified two gaps in its coverage (a two-mile and a five-mile gap)

25

around the I-40 near Flagstaff which were leading to dropped calls for Verizon

26

customers.

27

Verizon hired consultants to study the area with the coverage gap and determine

28

possible locations for a new wireless service facility. These consultants identified three

1

potential locations that could fill the coverage gap. In the first location, about 1,000 feet

2

further from the I-40 than the Toonerville site, the land was in escrow and the private

3

owner was not interested in disturbing that sale by leasing land to Sun State.1 R000022;

4

R000067; R000132. A second location, and Sun State’s preference (“the Toonerville

5

site”), is located on private land adjacent to the first location. In both of these locations, a

6

wireless service facility would need to be built. A third possibility was for Verizon to co-

7

locate with an existing wireless service facility located one mile away from the

8

Toonerville site. This wireless facility is owned and operated by the Navajo Tribal Utility

9

Authority (“NTUA” and “the NTUA site,” respectively); it is located on tribal land and

10

governed by tribal law. Co-location allows one wireless service facility to house

11

equipment for multiple wireless service providers. Verizon’s consultants rejected the

12

NTUA site because they determined it would not adequately fill the coverage gap, it

13

would take too long to implement, and it was too expensive. Therefore, Verizon and Sun

14

State moved forward on plans to build a wireless service facility at the Toonerville site.

15

In Coconino County, a Conditional Use Permit (“CUP”) is required to build most

16

wireless service facilities. Coconino County Zoning Ordinance § 3.9.B(1).2 The County’s

17

zoning regulations seek to “protect the county’s environmental resources and to minimize

18

adverse impacts on visual resources,” “minimize the number of towers by encouraging

19

the joint use (co-location) of facilities,” and “enhance the ability to provide wireless

20

telecommunication services to county residents, businesses and visitors.” Id. at § 3.9.A.

21

To achieve these goals, the Ordinance provides an order of preference for ten types of

22

new wireless service facilities, ranging from most preferred to least preferred. Relevant to

23

this case, co-location on an existing tower is ranked as the most preferred; a new tower of

24

100 to 199 feet in a G zone is ranked as the eighth preferred. Id. at § 3.9.C(1)(a). A new

25
26
27
28

1

This location is no longer in private ownership. It is now controlled by the
Navajo Housing Authority. It is unclear whether they would be interested in leasing the
land to Sun State.
2

Coconino County approved a new Ordinance on April 18, 2017. The relevant
provisions have not changed.
-2-

1

facility “shall use the most preferred facility type and location where technically feasible,

2

even if it results in an increase in the number of facilities or a higher cost.” Id. at § 3.9.C

3

(1)(b) (emphasis added). The County may only permit a lesser-preferred facility when

4

“the applicant presents substantial evidence to show that it will have a lesser visual

5

impact or is more technically necessary than the use of more preferred facilities.” Id. The

6

Ordinance also lists disfavored sites, which includes “[a]ny site within a visual corridor

7

or scenic vista, for example in view of the San Francisco Peaks, . . . unless the facility

8

blends with the surrounding natural and human made environment. Id. at 3.9.C(2)(b).

9

To receive a CUP, applicants first apply to the Coconino County Planning and

10

Zoning Commission (“the Commission”). Sun State filed an application with the

11

Commission on January 20, 2016. The Commission held public hearings and eventually

12

granted the CUP on November 30, 2016. R000161. NTUA appealed the Commission’s

13

decision on December 14, 2016. R000163–65. An appeal of the Commission’s zoning

14

decision goes to the Coconino County Board of Supervisors (“the Board”). The Board

15

hears appeals de novo.

16

The Board first held a public hearing on February 14, 2017. The first hearing

17

centered primarily on whether the NTUA site and the Toonerville site would equally

18

close the coverage gap. See R000013–117. Sun State’s studies showed that the NTUA

19

site would provide coverage for the five-mile gap, but not the two-mile gap. R000094.

20

NTUA, however, disputed that their site would not be able to provide sufficient coverage.

21

R000050–57. The Board continued the hearing, giving the parties time to determine

22

standards for measuring the coverage at each location and to discuss the possibility of co-

23

location. R000108–16. The second hearing was held on March 21, 2017. At this hearing,

24

both Sun State and NTUA agreed that the NTUA site could effectively meet Verizon’s

25

coverage needs. R000242. Instead, Sun State focused their arguments on other reasons

26

why the NTUA site was not a viable alternative: the short duration of the lease, delays,

27

and the cost. R000242–43. At the end of the hearing, the Board voted 5–0 to approve the

28

appeal and deny the CUP. R000317. The statements of the Board members and the

-3-

1

subsequent written denial identified two key reasons why the Board denied the CUP: the

2

Toonerville site is in a disfavored location and the NTUA site is an alternative which is

3

both not in a disfavored location and would provide the opportunity for co-location.

4

R000407–08.

5
6

Sun State seeks this Court’s review of the Board’s decision pursuant to 47 U.S.C.
§ 332(c)(7)(B)(v).

7
8

DISCUSSION
I.

The Telecommunications Act of 1996

9

This case arises under the Telecommunications Act of 1996 (TCA), Pub. L. No.

10

104-104, 110 Stat. 56. The TCA was enacted with two primary purposes. First, Congress

11

sought to “promote competition and reduce regulation in order to secure lower prices and

12

higher quality services for American telecommunications consumers and encourage the

13

rapid deployment of new telecommunications technologies.” T-Mobile USA, Inc. v. City

14

of Anacortes, 572 F.3d 987, 991 (9th Cir. 2009) (quoting TCA, 110 Stat. at 56). At the

15

same time, Congress also sought to “preserve the authority of State and local

16

governments over zoning and land use matters except in the limited circumstances set

17

forth in the [TCA] conference agreement.” Sprint Telephony PCS, L.P. v. County of San

18

Diego, 543 F.3d 571, 576 (9th Cir. 2008) (quoting H.R. Conf. Rep. No. 104-458, § 704,

19

at 207–08).

20

In striking this balance between preserving local authority and encouraging

21

technological development, the TCA proscribes only certain, limited behaviors by

22

localities. 47 U.S.C. § (c)(7)(B)(i). Localities may not “unreasonably discriminate”

23

amongst providers nor may they “prohibit or have the effect of prohibiting” wireless

24

services. Id. Localities also must act quickly on permit requests and denials of permits

25

must be based on “substantial evidence in a written record.” Id. at § (c)(7)(B)(ii)–(iii). A

26

person or entity believing that the locality violated these provisions of the TCA can seek

27

review of the decision in the federal courts. Id. at § (c)(7)(B)(v).

28

///

-4-

1

II.

Analysis

2

Sun State raises two challenges under the TCA. First, Sun State alleges that the

3

Board’s decision was not supported by substantial evidence. Second, Sun State argues

4

that even if there was substantial evidence, the denial violates the TCA because it

5

constitutes an effective prohibition. The Court considers each argument in turn.

6

A.

7

The TCA requires that “[a]ny decision by a State or local government . . . to deny

8

a request to place, construct, or modify personal wireless service facilities shall be in

9

writing.” 47 U.S.C. § 332(c)(7)(B0(iii). Although the TCA does not define “substantial

10

evidence,” courts have held that “this language is meant to trigger ‘the traditional

11

standard used for judicial review of agency decisions.’” Metro PCS, Inc. v. City and

12

County of San Francisco, 400 F.3d 715, 723 (9th Cir. 2005) (abrogated on other grounds)

13

(quoting H.R. Conf. Rep. No. 104-458, at 208 (1996)). This is a deferential form of

14

review, and courts can “neither engage in [their] own fact-finding nor supplant the Town

15

Board’s reasonable determinations.” Metro PCS, 400 F.3d at 725 (quoting Cellular

16

Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)).

Substantial Evidence

17

The substantial evidence determination “does not require incorporation of

18

substantive federal standards.” Metro PCS, 400 F.3d at 723. Instead, it “requires a

19

determination whether the zoning decision at issue is supported by substantial evidence in

20

the context of applicable state and local law.” Id. at 723–24. The evidence in the record

21

is substantial when there is “less than a preponderance but more than a scintilla of

22

evidence.” Id. at 725 (internal citations omitted). There must be enough “relevant

23

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

24

Taken together, a Court may not overturn a locality’s decision if (1) the local zoning

25

ordinance allows the denial and (2) there is more than a scintilla of evidence.

26

1.

The Local Ordinance Supports a Denial

27

The Coconino County Zoning Ordinance (“the Ordinance”) specifically takes into

28

consideration the preservation of scenic views. It also places a high priority on co-

-5-

1

location. Both of the grounds on which the Board denied the permit are supported by the

2

plain text of the ordinance. The Ordinance seeks to “minimize adverse impacts on visual

3

resources” and does so in part by disfavoring sites “within a visual corridor or scenic

4

vista.” Coconino County Zoning Ordinance §§ 3.9.A(1)(c), 3.9.C(2)(b). Localities are

5

allowed to take aesthetic considerations into account when issuing permits. Sprint PCS

6

Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 725 (9th Cir. 2009). Nothing

7

in the TCA prohibits localities from considering aesthetics, and nothing in Arizona law

8

does so.

9

Similarly, the Ordinance “encourag[es] the joint use (co-location) of facilities” in

10

order to minimize the number of towers. Coconino County Zoning Ordinance

11

§ 3.9.A(1)(e). This is further reflected by the fact that “[c]o-location on an existing

12

tower” is listed as the most preferred type of new facility. Id. at § 3.9.C(1)(a)(1). The

13

Toonerville tower is listed as the eighth most preferred (out of ten), as a new tower of 100

14

to 199 feet in a G zone. Id. at § 3.9.C(1)(a)(8). The Ordinance explicitly states that

15

“[n]ew facilities shall use the most preferred facility type and location where technically

16

feasible.” Id.at § 3.9.C(1)(a). Even without taking into account the Toonerville tower’s

17

location in a scenic view corridor, the Ordinance uses mandatory language requiring co-

18

location in place of a new, tall tower. The Board had clear statutory authority to deny Sun

19

State’s permit request.

20

2.

There is Substantial Evidence in the Record to Support a Denial

21

The County denied the CUP on two grounds: its location in a scenic view corridor

22

and the presence of an alternative site for co-location. There is substantial evidence in the

23

record for both grounds. The Board did not simply make generalized statements of

24

concern. With regards to the visual impact of the proposed Toonerville tower, the Board

25

had photo simulations to consider. R000123–26; R000130; R000177–81. The County’s

26

staff testified that the Toonerville tower was within a scenic view corridor and informed

27

the Board that a permit for the same location had previously been denied due to visual

28

concerns. R000020–26; R000100; R000127.The Ninth Circuit has held that substantial

-6-

1

evidence exists when a city council reviewed propagation maps, reports detailing

2

aesthetic values, public comment, and oral remarks from the parties. Palos Verdes, 583

3

F.3d at 726. Substantial evidence was also found when a handful of residents testified

4

that a wireless service facility would harm their property values and interfere with their

5

views of mountains. Anacortes, 572 F.3d at 994–95. It is not this Court’s role to review

6

the photo simulations and decide for itself whether the proposed facility negatively

7

impacts the scenic view. The Board had a sufficient amount of evidence before it,

8

between the staff report and the photo simulations, to decide that that tower would

9

negatively impact the scenic view.

10

The Board also had substantial evidence to determine that co-location on the

11

NTUA site was feasible. By the second meeting, both parties agreed that co-location on

12

the NTUA site was technologically feasible and that it would provide substantially

13

similar coverage for Verizon customers. Plaintiff asserts that the Board failed to evaluate

14

whether the NTUA site was economically feasible. The substantial evidence analysis,

15

however, does not take into account federal standards. At this stage, the only question is

16

whether there is substantial evidence to support a decision made pursuant to state and

17

local law. Metro PCS, 400 F.3d at 723–24. The Ordinance explicitly states that cost need

18

not be taken into account if there is a more-preferred, technically feasible facility.

19

Coconino County Zoning Ordinance § 3.9.C. The Board heard extensive evidence and

20

presentations from NTUA representatives about the process for co-location, the

21

technological capabilities of the NTUA tower, and NTUA’s willingness to negotiate with

22

Verizon. The Board had substantial evidence to determine that the NTUA site was an

23

option for co-location.

24

B.

25

While the substantial evidence analysis is focused on state and local standards for

26

the zoning of wireless service facilities, the effective prohibition analysis brings in

27

federal standards. Under the TCA, the “regulation of the placement, construction, and

28

modification of personal wireless services facilities by any State or local government . . .

Effective Prohibition

-7-

1

shall not prohibit or have the effect of prohibiting the provision of personal wireless

2

services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). A plaintiff must “establish either an outright

3

prohibition or an effective prohibition[;] . . . a plaintiff’s showing that a locality could

4

potentially prohibit the provision of telecommunications services is insufficient.” Sprint

5

Telephony, 543 F.3d at 579. There is no allegation that the Ordinance constitutes an

6

outright ban on wireless service facilities. An effective prohibition claim “involves a two-

7

pronged analysis requiring (1) the showing of a “significant gap” in service coverage3

8

and (2) some inquiry into the feasibility of alternative facilities or site locations.”

9

MetroPCS, 400 F.3d at 731.

10

In the Ninth Circuit, the provider has the burden of making a “prima facie showing

11

of effective prohibition by submitting a comprehensive application, which includes

12

consideration of alternatives, showing that the proposed [wireless service facility] is the

13

least intrusive means of filling a significant gap.” Anacortes, 572 F.3d at 998. If that

14

prima facie showing is rejected, the locality “must show that there are some potentially

15

available and technologically feasible alternatives.” Id. The locality must give the

16

provider the opportunity to dispute the alternatives identified by the locality. Id.

17

1.

18

The Toonerville Site is Not the Least Intrusive on the Values the
Denial Sought to Serve

19

For the reasons set forth in further detail below, this Court cannot conclude based

20

on the present record that the Board’s determination that the NTUA co-location site is an

21

available alternate location is erroneous. Given that determination, it also concludes that

22

the Toonerville site is not the least intrusive on the values the denial sought to serve. The

23

least intrusive means standard “requires that the provider show that the manner in which

24

it proposes to fill the significant gap in services is the least intrusive on the values that

25
26
27
28

3

A significant gap in coverage exists when “the provider in question is prevented
from filling a significant gap in its own service network.” Metro PCS, 400 F.3d at 732.
Therefore, if Verizon cannot fill its own gap, a significant gap in coverage is present. It
does not matter whether other wireless providers serve the same area without any gaps. In
this case, both parties agree that a significant gap in Verizon’s coverage exists. Doc. 24,
pg. 2; Doc. 25, pg. 9.
-8-

1

the denial sought to serve.” Anacortes, 572 F.3d at 995. To determine whether Sun State

2

met their burden, the Court must first “examine the [locality’s] stated ground for

3

concluding otherwise.” American Tower Corp. v. City of San Diego, 763 F.3d 1035, 1056

4

(9th Cir. 2014). Defendant denied Sun State’s CUP because of concerns about the impact

5

on the scenic view corridor and the county’s preference for co-location. Therefore, Sun

6

State must show that the Toonerville site is the least intrusive means of meeting the

7

county’s goals of minimizing the aesthetic impact on the scenic view corridor and of

8

encouraging co-location.

9

Sun State has not met this burden. The NTUA site is further removed from the

10

I-40, and therefore is, at least arguably, less visible and has a lower impact on the scenic

11

view corridor. Building a new wireless service facility at the Toonerville site instead of

12

co-locating at the NTUA site does not further the goals of encouraging co-location and

13

minimizing the number of wireless facilities. Plaintiff has not established that the

14

Toonerville site is the least intrusive means of filling the service gap.

15
16

2.

The NTUA Site is an Available and Technologically Feasible
Alternative

17

The parties do not dispute that the NTUA site is technologically feasible.4 Rather,

18

plaintiff asserts that the County erred by failing to consider the commercial feasibility of

19

the NTUA tower. The Ninth Circuit has never framed the effective prohibition analysis as

20

containing a commercial feasibility component. However, Plaintiff is essentially arguing

21

that the NTUA site is not truly an available alternative—the costs and delays associated

22

with the NTUA site are so high that it is effectively unavailable and that in denying the

23
4

24
25
26
27
28

At the March 2017 Board hearing, Sun State’s engineer admitted that the NTUA
site would provide Verizon the coverage needed to fill their service gaps. R000247
(“Now, the NTUA site does a pretty good job of covering. . . . it’s not a significant
variation.”). Sun State’s attorney similarly stated that “[w]e think we can get enough
coverage, if we had to, on NTUA.” R000250. Because both parties now agree that colocation on the NTUA site will fill Verizon’s significant service gap, there is no
technological reason preventing co-location.

-9-

1

permit and forcing Verizon to contract with the NTUA, they are effectively prohibiting

2

cell coverage.

3

There are two difficulties in assessing this argument. First, to the extent that Sun

4

State specifies certain asserted regulatory delays attributable to tribal governmental

5

processes or prospective lease terms that Verizon found to be unacceptable in collocating

6

on the NTUA site, the record reflects that NTUA either contested that such delays

7

existed, or represented to the County that it was prepared to negotiate the terms that

8

Verizon indicated were unacceptable.5 This Court cannot find, based on the materials in

9

the record which establish these assertions by the NTUA, that the Board acted

10

inappropriately.

11

Second, and relatedly, there is no indication in the present record that Verizon ever

12

actually attempted to discuss with any specificity the actual terms of any lease that it

13

might enter with the NTUA,6 nor does the record reflect that the NTUA unreasonably

14
5

15
16
17
18
19
20
21
22
23
24
25
26
27
28

See R000268 (“[O]ur fees are negotiable. What we gave the appellant was our
standard rates. We have in instances accommodated to be competitive with other
carriers.”); id (noting that the duration of the lease and the lease termination provisions
are negotiable as well); R000276–277 (noting the negotiability of price); R000279
(noting that prices have been negotiated with other providers in the past). R000284
(stating that negotiability of the lease term and one-year lease termination provision).
6

See R000039 (“NTUA has not received any information for application nor has
been officially contacted about timeframes, fees, duration, technical aspects, or any
things of that nature, or on the [NTUA] tower or any tower whatsoever in the NTUA
portfolio.”); R000067–68 (discussing that Verizon did not apply to and has not worked
with the Navajo Nation); R000085 (“I got a letter from NTUA indicating that they had
not been contacted by the applicant about collocating on the tower while the applicant
had said that they had contacted NTUA and it wasn’t available.”); R000096 (stating that
the Sun State attorney “called NTUA in November of 2016 and asked them to please
explain their application process” but that “everyone’s going to be asking me, why didn’t
you go to the NTUA site? Well, there’s two reasons. Number one, it doesn’t fill the gap.
And number two, it’s going to take far too long to get a site up and operating and all the
agreements pulled together and final.”); R000156 (noting discussion at the Commission
about NTUA’s invitation to co-locate and a Sun State representative’s promise to speak
with Verizon about co-locating with NTUA); R000158 (noting that a Sun State lawyer
called NTUA and was told about the leasing process and timeline); R000250 (stating that
“we took the NTUA rate matrix . . . and the rent matrix renders a monthly rent of
$5400,” but failing to discuss where this rent matrix came from or whether there were
negotiations to deviate from the matrix); R000256–57 (stating that during the
continuance between the two Board hearings, NTUA and Verizon discussed only the
coverage differences); R000271 (containing a statement from the NTUA attorney that
there were not co-location discussions during the continuance because it was not in Sun
State or Verizon’s interests at the time); R000280–81 (“[Verizon] would prefer to find
- 10 -

1

delayed such negotiations so that Verizon could not enter such a lease within a reasonable

2

period.7 Nor does the record reflect that given the terms of any actual lease Verizon

3

determined it was not feasible to provide coverage.8 Thus, while the Board may have

4

erred in refusing to consider whether the economic practicalities of an alternative site

5

effectively prohibited Verizon cell coverage, there is in the present record no sufficient

6

factual basis on which this Court can conclude that it does amount to such an effective

7

prohibition. The Board gave Sun State the opportunity to dispute the alternatives that it

8

identified, Anacortes, 572 F.3d at 998, Sun State simply did not adequately establish on

9

the present record that the NTUA alternative was an effective prohibition.

10

a.

Delays

11

Before the Board, Plaintiff first expressed concern that the application and

12

approval process with NTUA itself would take almost two years. NTUA, however,

13

strenuously disagreed with this claim. NTUA represented to the Board that the

14
15
16
17
18
19
20
21
22
23
24
25

something that was more beneficial to our objectives, which was the highway. So that’s
what we did. It’s not that we never looked at the NTUA tower. I conferred with Verizon
and [the Toonerville site] was the one that they preferred.”); R000281 (“When we asked
for the rent sheets, they gave us what they had, and they did not say they were
negotiable.”).
7

Additionally, there is some evidence in the record suggesting that Verizon
simply did not want to work with the Navajo Nation. See R000022 (containing testimony
from County staff that “[s]tatements from Verizon to staff indicate that they are unwilling
to collocate on a tower on tribal land because in the past when there have been disputes,
Verizon was unable to prevail in those disputes”); R000118 (noting the same in a staff
report); R000308 (“I’ve been informed by Sun State Towers and Mr. Chad [Ward, the
Principal and Director of Operations of Sun State,] that Verizon would not be willing to
work with us on further business.”). To the extent that Verizon, actually does assert that
commercial relationships with Navajo Nation entities are not commercially reasonable
due to the Tribe’s inadequate or biased dispute-resolution mechanisms or otherwise, such
assertions, to the extent detailed before the Board, might be a relevant factor in
determining whether the Board’s requirement that Verizon co-locate amounts to an
effective prohibition. Still, Sun State did not make a sufficiently detailed record in this
respect, for the Court to conclude that the Board erred.
8

26
27
28

Sun State is at least in some sense NTUA’s competitor for purposes of providing
an available cell phone tower to Verizon. To the extent that Sun State is also Verizon’s
agent for purposes of conducting such negotiations with NTUA it is not unreasonable for
the Board, in determining whether such negotiations were conducted in good faith, to
consider Sun State’s possible self-interest. Nor is it unreasonable, in the absence of an
actual record of attempted negotiations demonstrating effective prohibition, for the Board
to find that the NTUA site is a realistic alternative.
- 11 -

1

application process with NTUA could be completed in 30 to 60 days. R000093;

2

R000165; R000359. NTUA also provided the Board with a letter from the Navajo Nation

3

Land Development Department stating that the timeframe for approval of leases by the

4

Navajo Nation “can take anywhere from one week to one month.” R000377. The Board

5

was not shown any countervailing evidence that would impeach that projected timeline.

6

In absence of any such evidence this Court cannot say the Board erred in finding that

7

such delays were not enough to constitute an effective prohibition.

8

In addition to concerns about delays on NTUA’s end, Plaintiff told the Board that

9

there would be separate delays outside of NTUA’s control. First, Verizon would have to

10

restart internal administrative procedures. R000254. Second, Verizon would have to

11

reapply for permits from the Federal Communications Commission. R000255. Plaintiff

12

prepared a timeline for the Board taking these delays into account, and they are more

13

substantial than the delays associated with the NTUA application and lease process.

14

R000405. Delays associated with internal company processes and government

15

regulations are not properly part of the analysis in determining whether a site is an

16

available alternative. If localities were required to take delays like these into account—

17

delays that exist for all alternative sites—it would disrupt the balance the TCA sought to

18

achieve. A provider could choose their preferred location and then claim that all existing

19

alternatives were not available due to delay. This would allow the providers’ preferred

20

location to trump all other local zoning considerations and leave no recourse for local

21

authorities. However, delays connected with the alternative site itself—like the

22

consideration of the NTUA process above—must be taken into account.

23

The Ninth Circuit expressed similar concerns in American Tower Corp. when the

24

provider failed to consider modifications that would bring their applications in line with

25

the zoning ordinances. Although not discussing delays specifically, the Ninth Circuit

26

clearly rejected providers’ behavior that “would make the applicant—rather than the

27

locality—the arbiter of feasibility and intrusiveness, gutting the ‘least intrusive means’

28

standard with predictable, applicant-friendly results.” American Tower Corp., 763 F.3d at

- 12 -

1

1056. Plaintiff has not established that the delays from moving to the NTUA site render

2

the NTUA tower unavailable.

3

b.

Cost

4

Cost can and should be taken into account as a factor in determining whether there

5

is an available alternative. Just as an excessive delay with an alternative site might render

6

it effectively unavailable, so too could a prohibitively high cost render an alternative site

7

unavailable. Refusing to consider cost also allows the owners of the potential alternative

8

sites to act as monopolists, which is expressly counter to the goals of the TCA.

9

Anacortes, 572 F.3d at 991. Without considering cost at all, the owners of the alternative

10

sites could ask for exorbitant prices. In this case, NTUA could price their co-location

11

fees as high as they wanted and would have no incentive to negotiate fees with Verizon in

12

good faith. Cost must be considered in determining whether an alternative site is truly

13

available. The Ninth Circuit, in Anacortes, listed cost as one of multiple considerations

14

that made potential alternative sites unavailable. Id. at 998 (listing environmental impact,

15

additional cost, and location outside of the city’s jurisdiction as factors in finding that the

16

city did not identify available alternative sites); see also Metro PCS, 400 F.3d at 731

17

(rejecting the Fourth Circuit’s strict effective prohibition standard as not being

18

sufficiently permissive to serve Congress’s “twin goals of encouraging competition in the

19

wireless services industry and facilitating efficient use of bandwidth”).

20

But Plaintiff has put forward no evidence that would allow the Board to determine

21

that the lease rate of the NTUA site was unreasonable because the record contains no

22

evidence of any actual negotiation of such rates when the NTUA indicated that its rates

23

were negotiable. The estimated monthly lease price for the Toonerville property will cost

24

$2,250 per month, whereas the NTUA site is projected to cost $5,400 per month.9

25
26
27
28

9

NTUA repeatedly asserted during both Board hearings that all terms of their
leases are negotiable, including price. The only cost submitted at hearing was the “list”
price of $5,400 per month. Since the NTUA insisted this price was negotiable, and there
was no evidence that an attempt had been made to negotiate a lower price, it is not
possible for the Court to say the County erred in determining that the co-location site is
not cost-prohibitive.
- 13 -

1

R000250; R000404; R000406. The NTUA site may be more expensive. But an

2

alternative site is not made unavailable simply because it is more expensive than the

3

providers’ preferred choice. The cost of the alternative site must, in conjunction with

4

other factors, make the site effectively unavailable. Plaintiff can only establish this by

5

putting the relative prices into context. This could include comparisons of the costs of

6

other wireless service facilities in the area or a study of how the alternative site would

7

impact the provider’s overall budget.10 But if Plaintiff could exclude a site as an

8

alternative simply because the cost is not at their desired price, they too would lack the

9

incentive to negotiate honestly with NTUA. It is not the Court or the Board’s role to

10

ensure that providers have locations available at their preferred price point. It is the

11

Board’s responsibility to ensure that their decisions do not effectively prohibit a provider

12

from filling a gap in coverage.

13

Although the Board should have considered cost when raised by the applicant

14

during the hearings, the burden remains on the applicant to make a prima facie showing

15

of effective prohibition. Effective prohibition is not met by just stating that one facility

16

may be considerably more expensive than the other. Therefore, the Court will not reverse

17

the Board’s decision on these grounds.

18

c.

Lease Termination Provision

19

The standard NTUA lease with co-locators lasts for five year. However, the lease

20

contains a provision that allows NTUA to terminate the lease on one-year’s notice.

21

R000251. Plaintiff asserts that this essentially converts the lease into only a one-year

22

lease, and that it is not economically feasible for Verizon to invest in the technology for

23

co-location with such a short lease. At the hearings, NTUA noted that all terms in their

24

standard leases were negotiable, including duration. R000268. They also stated that they

25

have never kicked a co-locator off of an NTUA tower.11 Id; R000278. NTUA has a

26
10

27
28

For example, NTUA asserted that their rates are “comparable to other carriers.”
R000277. The only counterexample Sun State provided in the record and at oral
argument was the price of its own tower.
11

For reference, NTUA currently has 80 co-locations on their towers. R000032.
- 14 -

1

twenty-year lease with the Navajo Nation, and noted that it would be possible to draw out

2

the leases of co-locators to coincide with the length of the lease NTUA has with the

3

Navajo Nation. R000268. While Sun State asserts in its briefing that the NTUA would

4

not abandon its one year lease termination provisions, the Court can find little support in

5

the record that suggests as much. Sun State told the Board once that NTUA did not agree

6

to pull out the lease termination provision, but this conclusory statement combined with a

7

lack of evidence of actual negotiations with or applications to NTUA is not enough when

8

looking at the record as a whole for the Court to conclude that the County erred.

9

R000281. A termination clause is not the same thing as the length of a lease term, and

10

more importantly, Sun State has presented no evidence that such notice provisions are not

11

common in cell phone tower leases. NTUA’s express statements of willingness to extend

12

the lease term also weaken any claim for effective prohibition.

13

d.

Speculative Nature of Site

14

The NTUA site is not sufficiently speculative to not qualify as an available

15

alternative site. It is true that the lease has not been negotiated and that there is no firm

16

agreement between the parties. However, this would be true of every alternative site; in

17

fact, that is part of what makes it an alternative site. But this is not the case of the Board

18

pointing to a random alternative location and just hoping that Verizon will be able to

19

locate the wireless facility there. Rather, NTUA is actually engaging in this process

20

presumably because they desire to work with Verizon and have their site house Verizon’s

21

technology. NTUA made repeated representations to the Board that they are invested in

22

contracting with Verizon. The NTUA site is not too speculative.

23

Conclusion

24

Defendant Coconino County’s denial of the CUP complied with the local zoning

25

ordinances and there was substantial evidence to support the Board’s decision. Plaintiff

26

Sun State did not establish that the Toonerville site was the least intrusive means of

27

filling a significant gap and comporting with the values sought to be served by the denial

28

of the CUP. Because the Board identified an available and technologically feasible

- 15 -

1

alternative, the denial of the CUP does not amount to an effective prohibition. The NTUA

2

site provides Verizon with the same coverage as the Toonerville site. The NTUA site

3

does have some drawbacks for Verizon, but the Board provided evidence that the NTUA

4

was willing to negotiate on these points. In contrast Sun State provides no evidence that

5

Verizon actually entered into such negotiations, that such negotiations became too

6

protracted, or that NTUA insisted on terms that, singularly or in combination, effectively

7

prohibited the provision of Verizon cell phone coverage if Verizon were restricted to that

8

site.

9

IT IS THEREFORE ORDERED that the Request for Expedited Review

10

Pursuant to 47 U.S.C. § 332(c)(7)(B)(v) of Plaintiff Sun State Towers, LLC (Doc. 1) is

11

DENIED without prejudice to its renewal based on subsequent facts.

12
13
14

IT IS FURTHER ORDERED directing the Clerk of Court to terminate this
action and enter judgment accordingly.
Dated this 25th day of October, 2017.

15
16
17
18

Honorable G. Murray Snow
United States District Judge

19
20
21
22
23
24
25
26
27
28

- 16 -