GLOBAL TOWER ASSETS LLC et al v. TOWN OF MOUNT VERNON MAINE

Filing 24

ORDER ON MOTION TO DISMISS granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim; mooting 15 Motion to Strike By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GLOBAL TOWER ASSETS, LLC and,
NORTHEAST WIRELESS NETWORKS
LLC,
Plaintiffs,
v.
TOWN OF MOUNT VERNON, MAINE,
Defendant.

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) Docket No. 1:13-cv-00351-GZS
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ORDER ON MOTION TO DISMISS
Before the Court is Defendant Town of Mount Vernon’s (“Mount Vernon”) Motion to
Dismiss (ECF No. 11). For reasons explained herein, the Court GRANTS IN PART and
DENIES IN PART Mount Vernon’s Motion to Dismiss (ECF No. 11).1
I.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure require only that a complaint contain “a short and

plain statement of the grounds for the court’s jurisdiction . . . a short and plain statement of the
claim showing that the pleader is entitled to relief; and a demand for the relief sought[.]” Fed. R.
Civ. P. 8(a)(1)-(3). The Court assumes the truth of the complaint’s well-pleaded facts and draws
all reasonable inferences in plaintiffs’ favor. Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court “may consider only facts and
documents that are part of or incorporated into the complaint.” United Auto., Aero., Agric. Impl.

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Also before the Court is Plaintiffs’ Motion To Strike Documents Submitted With Defendant’s Motion To Dismiss
(ECF No. 15). Because the Court did not rely on or reference the documents attached to Defendant’s Motion To
Dismiss and that are the subject of Plaintiffs’ Motion To Strike, the Court determines that the Motion To Strike is
MOOT.

Workers of Am. Int’l Union v. Fortuno, 633 F.3d 37, 39 (1st Cir. 2011) (internal citations
omitted).
A viable complaint need not proffer “heightened fact pleading of specifics,” but in order
to survive a motion to dismiss it must contain “enough facts to state a claim to relief that is
plausible on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In

considering a motion to dismiss, the Court should “begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). Plaintiffs must include enough facts supporting a claim for relief that
“nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
“If the factual allegations in the complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.”
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting SEC v. Tambone, 597 F.3d
436, 442 (1st Cir. 2010)); see also Iqbal, 556 U.S. at 678 (stating that the Court need not accept
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements”). At this point in the litigation, “the determination of whether an issue is trialworthy
simply is not the same as the determination of whether a plaintiff states a claim upon which relief
can be granted.” Bodman v. Maine, Dept. of Health & Human Servs., 720 F. Supp. 2d 115, 121
(D. Me. 2010) (denying motion to dismiss a hostile work environment claim).
II.

BACKGROUND
A.

The Parties

Mount Vernon is a municipality in Kennebec County, Maine that regulates land use
within its boundaries by means of an ordinance known as the “Land Use Ordinance of the Town
of Mount Vernon, Maine” (“the Ordinance”). (Compl. (ECF No. 1) ¶3.) Plaintiff Global Tower

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Assets, LLC (“Global Tower”) works with federally-licensed providers of personal wireless
communication services, such as Plaintiff Northeast Wireless Networks, LLC (“Northeast”), by
identifying and acquiring appropriate sites for the development of personal wireless
communication facilities.

(Id. ¶ 11.)

Global Tower further works with federally licensed

providers in constructing facilities for use by personal wireless communication services
providers. (Id.) Global Tower has an agreement with Northeast to provide those services,
including within the Town of Mount Vernon. (Id.) The Federal Communications Commission
(“FCC”) has issued a license to Northeast to provide wireless service in the Town of Mount
Vernon pursuant to 47 U.S.C. § 151. (Id. ¶ 12.)
B.

Wireless Coverage In Mount Vernon

In the Complaint, Global Tower and Northeast state that they “have identified a specific
geographical area in the Town of Mount Vernon where there is a significant gap in service
coverage for personal wireless communications due to lack of a cell site in this area.” (Id. ¶ 14.)
Global Tower and Northeast have deemed this service problem significant and in need of a
remedy. (Id. ¶ 15.) Global Tower and Northeast have conducted testing and analysis and have
determined that the gap in coverage can be remedied by locating a new communications tower at
218 Blake Hill Road in Mount Vernon (the “Property”). (Id. ¶ 16.) Global Tower and Northeast
have proposed a 190-foot communication tower that is designed to accommodate up to five
wireless communication service providers.

(Id. ¶ 18.)

The Property is located in Mount

Vernon’s Rural District, which allows essential services as a land use, with approval by the
Mount Vernon Planning Board (the “Planning Board”) and the issuance of a permit by the
Mount Vernon Code Enforcement Officer. (Id. ¶ 19.)

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C.

Proceedings Before The Planning Board In Mount Vernon

On January 11, 2013, Global Tower and Northeast submitted an application to the
Planning Board seeking approval to construct a personal wireless services facility on the
Property (the “Application”). (Id. ¶ 23.) The Application requested permission to construct and
operate a 190-foot communication tower. (Id.)
On January 15, 2013, the Mount Vernon Planning Board held a public meeting and
substantively reviewed the Application. (Id. ¶ 24.) Specifically, the Planning Board discussed
whether the proposed communication tower complied with the standards of the Ordinance,
including the use classification of the proposed communication tower, and indicated that it did
not believe the Application complied with the Ordinance’s height requirement. (Id.)
D.

The Moratorium

On January 17, 2013, Mount Vernon’s Board of Selectmen executed a Warrant for a
Special Town Meeting of the Town of Mount Vernon to establish a moratorium on any new
construction or use requiring approval under the terms of Ordinance until July 17, 2013. (Id. ¶
25.) No notice was provided to Global Tower or Northeast regarding the development and
execution of the Warrant regarding the moratorium. (Id.) On January 19, 2013, the Planning
Board held a public meeting concerning the Application and visited the Property with Global
Tower representatives. (Id. ¶ 26.) During the meeting, the Planning Board discussed the “fall
zone of the communication tower” and whether the Property and leased area’s specifications
satisfied the Ordinance’s requirements. (Id.)
On January 28, 2013, Mount Vernon held a Special Town Meeting in order to adopt the
moratorium. (Id. ¶ 27.) Mount Vernon adopted the moratorium; it was effective until July 17,
2013 or until Mount Vernon amended its zoning and land use ordinances. (Id. ¶ 28.) Plaintiffs

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also allege that the moratorium prohibited the acceptance and processing of any applications for
personal wireless facilities governed by the Telecommunications Act of 1996 (“TCA”) that were
not pending proceedings under the laws of the State of Maine. (Id. ¶ 29.)
On February 15, 2013, Global Tower stated to the Planning Board that it was fully
committed to pursuing its application, and that it wished to establish a mutually acceptable
agreement on how the Planning Board would proceed to review the Application. (Id. ¶ 30.) On
February 18, 2013, the Planning Board indicated that it would not consider the Application
further until the moratorium was lifted. (Id. ¶ 31.) On March 19, 2013, the Mount Vernon
Ordinance Review Committee developed proposed amendments to the Ordinance relating to
personal wireless communication facilities. (Id. ¶ 33.) The amendments limited communication
towers to a height no greater than ten feet above the average tree canopy height. (Id.)
On April 16, 2013, Global Tower attended a Planning Board meeting and reiterated its
commitment to the Application, stated its belief that the Application was a pending proceeding
and was thus unaffected by the moratorium, and then requested that the Planning Board review
and act on the Application within 150 days of its submission. (Id. ¶ 32.) The Planning Board
replied that it would not consider the Application until the moratorium was lifted and that, in any
event, the application did not satisfy the standards set forth in the Ordinance. (Id.)
Throughout May and June of 2013, the Ordinance Review Committee continued to
develop proposed amendments to the Ordinance, and Global Tower continued to provide
feedback on those amendments. (Id. ¶¶ 34-36, 39.) On July 1, 2013, the Board of Selectmen
called a Special Town Meeting for July 13, 2013 to have voters consider proposed amendments
to the Ordinance. (Id. ¶ 40). No notice regarding the meeting was provided to Plaintiffs. (Id.)

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At the July 13, 2013 Special Town Meeting, Mount Vernon purportedly adopted various
amendments to the Ordinance relating to personal wireless communication facilities. (Id. ¶ 42).
E.

The Planning Board Considers The Application

On July 23, 2013, the Chair of the Planning Board contacted Global Tower, stating that
the Ordinance had been amended and that the Planning Board was now willing to assist Global
Tower in moving its construction plans forward. (Id. ¶ 43.) On August 6, 2013, Global Tower
requested that the Planning Board review and decide the Application at its next meeting on
August 20, 2013. (Id. ¶ 44.) In response, the Planning Board placed the Application on the
agenda for consideration at its August 20, 2013 meeting. (Id. ¶ 45.)
At the August 20 meeting, the Planning Board took up the Application but refused to
finalize its review. (Id. ¶ 46.) Instead, the Planning Board tabled the Application for further
consideration. (Id.) Global Tower objected to any further delay and did not consent to any
further extension of the Planning Board’s review of the Application. (Id.) At that time, the
Planning Board verbally stated that the Application did not meet the Ordinance. (Id. ¶ 47.)
F.

Litigation

On September 13, 2013, Global Tower and Northeast filed their Complaint (ECF No. 1)
against the Town of Mount Vernon. Plaintiffs’ Complaint asserts two counts. Within the first
count, Plaintiffs assert three claims under the TCA: (1) the actions and omissions of Mount
Vernon constitute an unreasonable delay in violation of 47 U.S.C. § 332(c)(7)(B)(ii) (the
“Unreasonable Delay Claim”); (2) the actions and omissions of Mount Vernon constitute a
failure to act and issue a written decision in violation of 47 U.S.C. § 332(c)(7)(B)(iii) (the
“Failure To Act/Written Decision Claim”); and (3) the actions and omissions of Mount Vernon
constitute or have the effect of prohibiting the provision of personal wireless communication

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services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) (the “Effective Prohibition Claim”).
(Compl. ¶¶ 51-53.)

The second count requests a declaratory judgment that Plaintiffs’

Application is a pending proceeding and is unaffected by the moratorium. (Id. ¶¶ 55-59; Request
for Relief D.) On October 22, 2013, Mount Vernon moved to dismiss the Complaint. (Motion
to Dismiss (ECF No. 11).)
III.

DISCUSSION
Under the TCA, the FCC licenses carriers to provide wireless telephone service on a

competitive basis. 47 U.S.C. § 332(c). The statute preserves state and local authority over the
placement and construction of facilities, id. § 332(c)(7)(A), subject to five limitations, id. §
332(c)(7)(B), three of which are pertinent here.
The first relevant limitation, set forth in subsection (B)(i), provides that in
regulating the placement and construction of facilities, a state or local government
or instrumentality ‘shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.’ 47 U.S.C. § 332(c)(7)(B)(i)(II). . . . The
second limitation requires the local government to ‘act on any request for
authorization to place, construct, or modify personal wireless service facilities
within a reasonable period of time after the request is duly filed taking into
account the nature and scope of such request.’ 47 U.S.C. § 332(c)(7)(B)(ii).
Similarly, a reviewing court must hear and decide the action ‘on an expedited
basis.’ Id. § 332(c)(7)(B)(v). The third states that the denial of a request must be
in writing and supported by substantial evidence contained in a written record. Id.
§ 332(c)(7)(B)(iii).
National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 19-20 (1st Cir. 2002)
(“National Tower”).
In its Motion to Dismiss, Mount Vernon asserts that all three of Count I’s TCA claims
fall outside the limitations period set forth in 47 U.S.C. § 332(c)(7)(B). Mount Vernon argues
that even if the claims were timely, Plaintiffs’ Failure to Act/Written Decision Claim and their
Effective Prohibition Claim fail to state claims upon which relief can be granted because Mount
Vernon has not taken final action on Plaintiffs’ Application. Even if it had taken final action,

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Mount Vernon asserts Plaintiffs’ Effective Prohibition claim fails because they have not
sufficiently pleaded that there is a significant gap in coverage or that future efforts would be
fruitless.
A.

Timeliness of Plaintiffs’ Count I Claims

Congress enacted the TCA “to promote competition and reduce regulation in order to
secure lower prices and higher quality services for American telecommunications consumers and
encourage

the

rapid

deployment

of

new

telecommunications

technologies.”

TELECOMMUNICATIONS ACT OF 1996, PL 104–104, February 8, 1996, 110 Stat 56.
(internal citations omitted.) Accordingly, claims under the TCA are governed by the limitations
period set forth in 47 U.S.C. § 332(c)(7)(b), which provides:
Any person adversely affected by any final action or failure to act by a State or
local government or any instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or failure to act, commence
an action in any court of competent jurisdiction.
Id. Because all of the claims in Count I are premised on the inaction of Mount Vernon, whether
Plaintiffs’ claims are timely turns on whether the Complaint was filed within thirty days of
Mount Vernon’s “failure to act.”
The TCA does not define what constitutes a failure to act. However, the FCC addressed
the issue in In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(b) to Ensure Timely Siting Review & to Preempt Under Section 253 State & Local
Ordinances That Classify All Wireless Siting Proposals As Requiring A Variance, 24 F.C.C.
Rcd. 13994, 14013 (2009) (the “Shot Clock Ruling”).

Under the Shot Clock Ruling, a

municipality’s failure to act on an application for the construction of a new wireless service
facility within 150 days of submission of the application is presumptively unreasonable and

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constitutes a “failure to act” that triggers the right to seek judicial relief. Id. ¶¶ 32, 37. However,
the Shot Clock Ruling also explicitly states that:
[A] rigid application of this cutoff to cases where the parties are working
cooperatively toward a consensual resolution would be contrary to both the public
interest and Congressional intent. Accordingly, we clarify that a “reasonable
period of time” may be extended beyond 90 or 150 days by mutual consent of the
personal wireless service provider and the State or local government, and that in
such instances, the commencement of the 30-day period for filing suit will be
tolled.
Id. ¶ 49. Accordingly, while generally a suit must be brought within 180 days of the submission
of a completed application, where the parties are working together toward a resolution, the 180
day limitation may be tolled. Id.; see also New Cingular Wireless PCS, LLC v. Town of
Stoddard, N.H., 853 F. Supp. 2d 198, 201 (D.N.H. 2012) (“New Cingular”) (providing that the
plaintiff agreed to extend the presumptive deadline); Bell Atl. Mobile of Rochester L.P. v. Town
of Irondequoit, N.Y., 848 F. Supp. 2d 391, 400 (W.D.N.Y. 2012) (indicating that the parties had
“voluntarily agreed” to an extension of the presumptive deadline).
Here, the Complaint alleges that the Application was submitted to the Planning Board on
January 11, 2013. Under the presumption established in the Shot Clock Ruling, any complaint
had to be filed by July 11, 2013 to be timely. See Shot Clock Ruling ¶ 37. However, drawing all
reasonable inferences in Plaintiffs’ favor, the Complaint also alleges a series of actions on the
part of both Plaintiffs and Mount Vernon that extended the reasonable period of time by mutual
consent. Throughout May and June of 2013, the Ordinance Review Committee continued to
develop proposed amendments to the Ordinance, and Global Tower continued to provide
feedback on those amendments. (Compl. ¶¶ 34-36, 39.) In early July, Global Tower again
reached out to the Planning Board, asking how it could be of assistance to the Board. (Id. ¶ 41.)
In June and July, there were two Town Meetings to discuss the proposed amendments. (Id. ¶¶
37, 38, 42.) On July 23, 2013, the Planning Board contacted Global Tower, stating that it was
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now willing to assist Global Tower in moving forward with the plan for construction of a
wireless tower. (Id. ¶ 43.) Global Tower responded by requesting that the Planning Board
resolve the Application at the upcoming August 20, 2013 meeting, and the Planning Board
placed the Application on the agenda for that meeting. (Id. ¶ 44.) However, at the August 20,
2013 meeting, the Planning Board took up the Application but then tabled it for further
consideration for a date yet to be determined. (Id. ¶ 46.)
Construing these facts in the light most favorable to Plaintiffs, the Complaint shows a
series of actions before and after the June 10, 2013 presumptive deadline by both the Planning
Board and Plaintiffs that extended that presumptive deadline.

Throughout this period, the

Planning Board considered a series of proposed amendments, to which the Plaintiffs provided
feedback. Most notably, the Planning Board reached out to Plaintiffs on July 23, 2013 and
indicated a willingness to continue the process of considering the Application, and Plaintiffs
readily moved forward with the Application. These actions show a level of mutual consent
sufficient to extend the presumptive deadline on a motion to dismiss. Accordingly, at this stage
of the litigation, the Court cannot say that Plaintiffs’ claims were untimely. Defendant’s Motion
To Dismiss is therefore DENIED on this basis.
B.

Sufficiency of Plaintiffs’ Failure To Act/
Written Decision and Effective Prohibition Claims

Mount Vernon asserts that Plaintiffs’ Failure to Act/Written Decision and Effective
Prohibition Claims should be dismissed because the Complaint fails to state cognizable claims
upon which relief may be granted. The Failure to Act/Written Decision claim is premised on 47
U.S.C. § 332(c)(7)(B)(iii), which requires that “[a]ny decision by a State or local government or
instrumentality thereof to deny” an application to construct a wireless communications facility
“shall be in writing and supported by substantial evidence contained in a written record.” The

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Effective Prohibition Claim is premised on 47 U.S.C. § 332(c)(7)(B)(i)(II), which provides that
“[t]he regulation of the placement, construction, and modification of personal wireless service
facilities by any State or local government or instrumentality thereof . . . shall not prohibit or
have the effect of prohibiting the provision of personal wireless services.” The Court will
address each claim in turn.
i.

The Failure to Act/Written Decision Claim

In their Complaint, Plaintiffs allege that Mount Vernon’s actions and omissions
“constitute a failure to act and issue a written decision supported by substantial evidence in the
written record in violation of 47 U.S.C. § 332(c)(7)(B)(iii).” (Compl. ¶ 52.) Mount Vernon
argues that Plaintiffs’ Failure to Act/Written Decision claim must be based upon a final action in
the form of a written decision. (Mot. to Dismiss 11 at 12-13). Mount Vernon argues that if this
were not so, “[i]nterpreting both § 332(c)(7)(B)(ii), which expressly authorizes claims based on a
failure to act, and § 332(c)(7)(B)(iii) to authorize a claim based on an alleged failure to act would
impermissibly read redundancy into the statute.” (Id. at 13.) Mount Vernon primarily relies
upon the District of New Hampshire’s decision in New Cingular Wireless PCS, LLC v. Town of
Stoddard, 853 F. Supp. 2d 198 (D.N.H. 2012) and this Court’s decision in Industrial Commun. &
Elec., Inc. v. Town of Falmouth, 98-397-P-H, 1999 WL 33117159 (D. Me. June 10, 1999)
(Recommended Decision) (“Industrial Commun.”), aff’d Order Affirming Recommended
Decision of Magistrate (ECF No. 24) (D. Me. July 12, 1999), in support of its argument.
The New Cingular court held that the plaintiff’s 47 U.S.C. §§ 332(c)(7)(B)(iii) claim was
premature because its application had not been denied by the local zoning board and “[t]he plain
language of the ‘substantial evidence’ provision, § 332(c)(7)(B)(iii), requires that the local
government make a ‘decision . . . to deny’ the application.” 853 F. Supp. 2d at 207. Likewise,

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the court found that “although § 332(c)(7)(B)(i)(II)’s ‘effective prohibition’ provision is not
nearly as clear on its face, the court of appeals has read it to require a showing that, inter alia, the
plaintiff’s application was denied.” Id. The court then distinguished the facts of its case, where
the board failed to resolve plaintiff’s application but indicated that further action would be taken,
from other cases where it was determined that a local government authority’s failure to act
constituted a “functional” or “de facto” denial.2 See id. at 207-08. The court cautioned that
“[t]his is not to say that a failure to act on an application cannot ever, under any set of
circumstances, amount to an effective denial of the application.” Id.; see also Wireless Income
Props. v. McDonald, 403 F.3d 392, 397 (6th Cir. 2005) (“Wireless Income”) (finding that the
defendant’s informal denial of the plaintiff’s applications during a nine month period following
the expiration of the moratorium was not simply a failure to act but rather a functional denial.)
Mount Vernon also relies on Industrial Commun. in arguing that Plaintiffs cannot bring a
section 332(c)(7)(B)(iii) claim. In that case, the defendants argued that the plaintiff’s claim was
untimely under section 332(c)(7)(B)(v) because the “final action” – when the local zoning board
voted to deny the plaintiff’s application – occurred more than 30 days prior to the plaintiff filing
suit. Indus. Communs., 1999 WL 33117159 at *2. Ultimately, the court agreed with the plaintiff
that it was only when the board issued a written notice of its decision (which was within the
limitations period) that it had committed a “final action.” Indeed, the court indicated that
allowing a TCA defendant to wait until the limitations period expired to provide reasons for its

2

The New Cingular court found that factual variations in other “de facto” denial cases made its case distinguishable.
For example, in Tennessee ex rel. Wireless Income Properties, LLC v. City of Chattanooga, 403 F.3d 392 (6th Cir.
2002), the TCA defendant informed the plaintiff that its applications, absent amendment, would not be granted. See
id. at 207. Likewise, in Sprint Spectrum L.P. v. Town of Durham, No. 97-305-JD, 1998 WL 1537756 (D.N.H. Aug.
27, 1998), the TCA defendant declared that the original application to construct a wireless communications facility
had become moot and required the plaintiff to submit a new application. Id. at **2-3.

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action would be contrary to Congressional intent and would effectively preclude judicial review
of TCA defendants’ decisions. Id. at *3.
Assuming the truth of Plaintiffs’ well-pleaded facts and drawing all reasonable inferences
in their favor, the Court finds that Plaintiffs adequately pleaded that Mount Vernon has
functionally denied its Application. Specifically, Plaintiffs allege that at its August 20, 2013
meeting the Mount Vernon Planning Board reviewed its Application, refused to finalize its
review, but instead “tabled the Application for further consideration to a date yet to be
determined.” (Compl. ¶ 46.) At that same meeting, “the Mount Vernon Planning Board verbally
stated the Application does not meet the Mount Vernon Land Use Ordinance.” (Id. ¶ 47.) Much
like the circumstances contemplated in New Cingular, Plaintiffs’ Complaint plausibly alleges
that in reviewing Plaintiffs’ Application and indicating it failed to meet its land use ordinance,
Mount Vernon effectively denied the Application absent amendment and resubmission. Similar
to Wireless Income, it was only after it amended its land use ordinance and after its moratorium
had expired that Mount Vernon verbally informed Plaintiffs that their application did not adhere
to its land use ordinance. (Compl. ¶¶ 42, 43, 46, 47.) Accordingly, on the record now before the
Court, Mount Vernon’s Motion to Dismiss Plaintiffs’ “Failure to Act/Written Decision” claim is
DENIED.
ii.

The Effective Prohibition Claim

As indicated above, an effective prohibition claim is not ripe until a local government
body has denied a plaintiff’s application. See New Cingular, 853 F. Supp. 2d at 207. However,
the same “functional denial” analysis outlined in New Cingular and Wireless Income applies to
the instant claim. For the same reasons outlined regarding Plaintiffs’ Failure to Act/Written

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Decision Claim, the Court finds that Plaintiffs have plausibly articulated facts suggesting a
functional denial of the Application.
Turning to the substance of the Effective Prohibition Claim, “a town may not through its
decisions have ‘the effect of prohibiting’ wireless service[,]” and this prohibition encompasses
not only a blanket ban on wireless service but may also encompass the denial of individual
applications. National Tower, 297 F.3d at 20. The First Circuit has explained that while “an
individual denial is not automatically a forbidden prohibition violating the ‘effects’ provision . . .
neither can [the court] rule out the possibility that – based on language or circumstances – some
individual decisions could be shown to reflect, or represent, an effective prohibition on personal
wireless service.” Id. (citing Town of Amherst v. Omnipoint Communs. Enters., Inc., 173 F.3d
9, 14 (1st Cir. 1999)).
Where a plaintiff alleges that the denial of a single application amounts to an effective
prohibition, the plaintiff must show that: (1) there is a significant gap in coverage, and (2) “that
further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.” Id. at
19-20; see also Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st Cir. 2009)
(“Omnipoint Holdings”).

The First Circuit has held that “[w]hether or not an effective

prohibition has occurred depends on each case’s unique facts and circumstances.”

Green

Mountain Realty Corp. v. Leonard, No. 13-2163, slip op. at 21 (1st Cir. Apr. 23, 2014). By way
of example, in National Tower, where it was undisputed that there was a significant coverage
gap, the First Circuit indicated that setting out criteria under a zoning law that no one could ever
meet was tantamount to an effective prohibition. 297 F.3d at 23.
Accordingly, Plaintiffs must first allege that there is a significant gap in coverage.
National Tower, 297 F.3d at 20; Omnipoint Holdings, 586 F.3d at 48. In assessing whether a

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coverage gap is significant, the First Circuit has instructed that courts “should consider, inter
alia, the physical size of the gap, the area in which there is a gap, the number of users the gap
affects, and whether all of the carrier’s users in that area are similarly affected by the gaps.”
Omnipoint Holdings, 586 F.3d at 49. Here, Plaintiffs allege that they have “identified a specific
geographical area in the Town of Mount Vernon” where a significant gap exists “due to lack of a
cell site in [the] area.” (See Compl. ¶¶ 14, 15.) However, Plaintiffs make no allegations beyond
that bald legal conclusion. The Complaint contains no further information concerning the factors
outlined by the First Circuit. See Omnipoint Holdings, 586 F.3d at 49. Plaintiffs assert that the
service gap is confined to a “specific geographical area,” but go no further in describing the size
or location of the area. Although Plaintiffs allege that “[t]he presence of this significant service
coverage gap poses a public safety risk for individuals and public safety organizations that rely
on wireless communications in reporting emergency situations,” (Compl. ¶ 15), they fail to state
whether and to what extent their coverage is inadequate within the service gap. To that end, the
Court finds that Plaintiffs’ description of the service gap as “significant” is conclusory language
unsupported by any plausible factual assertions. On this ground alone, Plaintiffs have failed to
state a claim for effective prohibition.
Even assuming that Plaintiffs’ allegations regarding the coverage gap were sufficient,
Plaintiffs fail to allege that further efforts would be fruitless. See National Tower, 297 F.3d at
20; Omnipoint Holdings, 586 F.3d at 48. In response to Mount Vernon’s argument that Plaintiffs
have failed to mount an effective prohibition claim, Plaintiffs argue that further efforts would be
a waste of time because Mount Vernon “is hostile to personal wireless service facilities and,
specifically, the Application.” (Pls.’ Obj. To Defs.’ Mot. To Dismiss And Incorp. Mem. Of Law
(ECF No. 16) at 16.) In support, Plaintiffs argue that the Town’s alleged enactment of the

15

moratorium shows Mount Vernon’s hostility. (Id.) Plaintiffs have offered no support for the
argument that past hostility alone equates to future reasonable efforts being fruitless and a waste
of time. Plaintiffs finally argue that the interpretation of the Ordinance adopted by the town
amounts to an “overly restrictive height standard.” (Id. at 17.) Restrictive standards are not the
same as criteria under zoning laws that are impossible to meet. See National Tower, 297 F.3d at
23. Accordingly, Plaintiffs have also failed to allege that “further reasonable efforts are so likely
to be fruitless that it is a waste of time even to try.” Id. at 20.
The Court simply cannot infer from Plaintiffs’ vague and conclusory statements that they
have adequately pleaded an effective prohibition claim. Because Plaintiffs fail to satisfy the first
and second prongs of the effective prohibition claim analysis, this claim cannot go forward.
Mount Vernon’s Motion to Dismiss is GRANTED as to the Effective Prohibition Claim only
(Compl. ¶ 53).
C.

Pendant Jurisdiction Over Plaintiffs’ Count II Claim

To the extent Mount Vernon seeks dismissal for lack of jurisdiction, its motion is
DENIED. The Court has federal question jurisdiction over Plaintiffs’ TCA claims brought
pursuant to sections 332(c)(7)(B)(ii) and 332(c)(7)(B)(iii). The Court finds Plaintiffs’ Count II
claims arise from the same “nucleus of operative facts” as their Count I claims. Accordingly, the
Court elects to exercise supplemental jurisdiction over the remaining state law claim brought
pursuant to 1 M.R.S.A. § 102.
IV.

CONCLUSION
For the aforementioned reasons, the Court GRANTS IN PART and DENIES IN PART

Mount Vernon’s Motion to Dismiss (ECF No. 11), and deems Global Tower and Northeast’s
Motion to Strike (ECF No. 15) MOOT. In accordance with this ruling, Count I is dismissed to

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the extent it states an effective prohibition claim (the relief requested in paragraph 53 of the
Complaint), but Count I shall proceed to the extent it alternatively pleads claims for
unreasonable delay and failure to act in violation of TCA.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 27th day of May, 2014

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