Cellco Partnership et al v. Fairfax County, Virginia et al

Filing 79

MEMORANDUM OPINION: For the reasons stated above, the plaintiffs' Motion for Summary Judgment will be denied and the defendant's Motion for Summary Judgment will be granted by an appropriate Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 10/22/15. (Attachments: # 1 Memorandum Opinion Continued)(yguy)

entirely residential area surrounded by historical sites. Consequently, the decision-making

processes for both applications and the considerations relevant to each are far from identical.
Because the Dranesville Facility and proposed facility are not similarly situated, differential
treatment of the two facilities does not constitute arbitrary and capricious conduct, and plaintiffs'
claim fails in this respect.
Plaintiffs also assert that the Board acted arbitrarily and capriciously by selectively

applying the provisions of the Comprehensive Plan, disregarding plaintiffs' evidence regarding
the lack of alternative sites and technologies, and espousing an impermissible preference for
DAS technology and public lands. Pis.' Summ. J. Br. at 24. Specifically, plaintiffs argue that
they demonstrated that there were no adequate alternative sites, but that the Board arbitrarily
disregarded that information and failed to consider plaintiffs' evidence of compliance with the

Comprehensive Plan. Id. at 23; Pis.' Reply Br. at 9. Plaintiffs assert that "[w]here Applicants
demonstrate compliance" with the Comprehensive Plan "to the satisfaction of both Staff and
Planning Commission, only to have evidence of compliance ignored by the Board, the result is
arbitrary under Virginia law and thus cannot constitute substantial evidence under federal law."
Pis.' Summ. J. Br. at 24. In response, the Board correctly acknowledges that the Comprehensive
Plan does not favor DAS technology over stealth designs,

I9

but encourages applicants to consider

various types of mitigation, including use of alternative technologies. Def.'s Opp'n Br. at 8 n.6.

The Board contends that the Applicants failed to establish that other forms of mitigation,

1' Moreover, although neither party has raised this issue, it appears that the Board evaluated the
Dranesville Facility according to a different edition of the Comprehensive Plan. Portions of the
Policy Plan specific to telecommunications facilities were amended in 2013. Those amendments
led to the addition of Objective 42(c), which calls for the consideration of micro-cell
technologies like DAS. See Proposed Comprehensive Plan Amendment, available at
http://www.fairfaxcounty.gov/dpz/comprehensiveplan/amendments/sl2-cw-2cp.pdf.

12 Both this concession and the plain language of the Comprehensive Plan make plaintiffs'
preemption argument irrelevant. Pis.' Summ. J. Br. at 25.
35

including use of DAS nodes or alternative sites, would not be feasible or adequate alternatives
that would produce less of an impact. Id. at 19.
Plaintiffs misconstrue the requirements of the Comprehensive Plan by arguing that
simply designing a facility to resemble a bell tower and labeling it as "stealth" or providing
camouflage is sufficient to gain approval under the 2232 and special exception processes. This

argument ignores the clear provisions of the Comprehensive Plan, which call for co-location on
existing facilities when available, Objective 42(a); mandate consideration of feasible
"camouflage structure design and/or micro-cell technologies," Objective 42(c); express a
preference for public sites when they provide a "similar or equal opportunity to minimize
impacts," Objective 42(d); and require that an applicant show that the proposed facility will have
"the least visual impact...as compared with alternate sites." Objective 42(k). By requiring the
plaintiffs to demonstrate that the proposed facility was consistent with these provisions, the
Board did not arbitrarily or selectively apply the Plan; rather, it is plaintiffs who seek to

selectively follow the Plan's provisions and rely exclusively on stealth design.
Moreover, the Board was not required to defer to any recommendations or determinations

made by Staff or the Planning Commission and is permitted under Virginia law to overturn those

decisions. Va. Code Ann. § 15.2-2232(B); Zoning Ordinance § 9-001. The Planning Commission
and Staffs finding that the proposed facility was in compliance with the Comprehensive Plan
can serve as relevant evidence, but it can be outweighed by other evidence in the record. Va.
Beach, 155 F.3d at 430-31. Based on the Board's de novo review of the substantial evidence in

the record, the Board reasonably reached a different conclusion than those entities. The Staff and

the Planning Commission's satisfaction with plaintiffs' evidence does not demonstrate that the

36

Board's contrary decision was arbitrary and capricious or that the Board ignored relevant
evidence.

In addition to misinterpreting the Comprehensive Plan and Virginia law, plaintiffs also

misconstrue the weight of the evidence for and against their proposal in asserting that the Board
arbitrarily ignored the evidence plaintiffs presented. Plaintiffs argue that they proved that DAS
was not a feasible alternative. Plaintiffs base this argument almost entirely on Dugan's
testimony, referring to Dugan as an "expert witness" whose testimony was unrebutted and stating
that no parly objected to his expert qualifications. Pis.' Summ. J. Br. at 12. Contrary to plaintiffs'
assertion, it is unclear whether Dugan was designated as an expert witness for the administrative

proceeding; however, it is clear that Dugan was not designated as an expert for the purposes of
this litigation.

Therefore, as the Board argues, Dugan's statements and opinions should be

evaluated solely on the basis of what is contained in the written record. See Def.'s Opp'n Br. at
16-17. The Board contends that that record shows that Dugan's opinions and reports are

unreliable and unsupported by any data or methodology. Id. at 15-16.
Drawing all reasonable inferences in favor of the plaintiffs and even assuming that Dugan
was in fact properly qualified as an expert, the quantum of evidence Dugan provided does not
show that the Board lacked substantial evidence or acted arbitrarily and capriciously when it

denied the Applications, particularly when compared to the contradictory evidence presented by
the opposition. With regards to the use of DAS technology, Dugan opined that DAS was not a

13 Although plaintiffs' counsel stated to the Board that plaintiffs had asked the Planning
Commission to qualify Dugan as an expert witness, J.A. at 1362, the transcript of the Planning
Commission meeting does not indicate that Dugan was actually presented as an expert witness.
J.A. at 0012 (introducing Dugan to the Planning Commission only as "an engineer who is
working on behalf of Verizon Wireless"). Moreover, this Court ordered that review of the
Board's decision in the case would be based exclusively upon the Written Record and that there
would be no additional disclosure of expert testimony or expert discovery or reports. Agreed
Order Amending the Joint Report and Discovery Plan [Dkt. No. 15].
37

feasible option due to the low height of DAS nodes and the area's sloping terrain. J.A. at 136566. When testifying before the Planning Commission, Dugan slated that DAS nodes "only offer

of [sic] spot coverage or capacity relief to a very small area" due largely to their lower antenna
height, that a "substantial number of DAS nodes [would be] necessary to equate to the level of
coverage and capacity afforded by the proposed facility," and that existing poles would have to
be replaced by taller ones to make the option feasible. J.A. at 0013-14. Dugan's testimony

simply indicated that a large number of nodes and higher poles might be required, which might
make the option more expensive but not unfeasible. Moreover, Dugan's opinion that DAS nodes
would not be "less intrusive," J.A. at 0014, is irrelevant because the Fourth Circuit does not

follow the "least intrusive means" approach to wireless facility applications, and Dugan was

testifying about technological alternatives not about visual impact.
Even when applicants present the testimony of numerous experts, the views of the
community "will often trump those of.. .experts in the minds of reasonable legislators." Va.
Beach. 155 F.3d at 430-31. Numerous community members expressed their opinions and offered

specific evidence to contest Dugan's assertions. For example, opponents presented evidence that
DAS nodes are already in use at various locations in Fairfax County and that the nodes "work

very well where there's a lot of topographical challenges" because that is "what they're designed
for." J.A. at 1394. With this contradictory evidence and community opposition, and absent

additional supporting data from Dugan, the Board was justified in rejecting Dugan's conclusions.
Moreover, there is no evidence from which a reasonable juror could find that the Board actually
ignored Dugan's evidence in reaching its decision; rather, the record indicates only that it found
substantial evidence contradicting it.

Plaintiffs also argue that Dugan's testimony and reports demonstrate that there were no
existing or alternative sites that would adequately serve the Applicants' needs, and that the Board
arbitrarily disregarded that evidence. The dispute over the availability of alternative sites focused

primarily on the Providence Baptist Church Steeple ("Providence Steeple") and the Wolftrap
Fire Station #42 ("Fire Station"). The Providence Steeple is an existing structure that already
hosts wireless carriers and would have room for co-location of at least a 40-foot antenna,

and

the Fire Station is a public site owned by Fairfax County that could host a flag pole monopole.
SAACT submitted uncontradicted evidence that the Applicants had originally
characterized the Fire Station as their "ideal location," but had to choose the ACUMC site
instead because the Fire Station was deed restricted and unavailable, assertions that were found

to be incorrect. J.A. at 0876, 1373. Applicants later changed their proposal and stated that the
Fire Station would be a viable location, but only in conjunction with a site at ACUMC. J.A. at

0242. This "two-site strategy" involved a site to the east, which CWS stated had to be ACUMC,
and a site to the west, which CWS stated the Fire Station could provide. J.A. at 1236. CWS
affirmatively stated in its application materials that it had no immediate intention of developing
the site to the west. Id. Dugan represented to the Planning Commission that the Fire Station alone
was not an adequate alternative to the proposed facility because relying solely on a site at the
Fire Station would leave a .75 mile gap in coverage along Leesburg Pike. J.A. at 1316. Verizon
also sent the Planning Commission a letter stating that the Fire Station would "benefit our

14 There is dispute over the exact height at which an antenna could be placed on the Providence
Steeple. Opponents of the proposed facility stated that the antenna could be located at 55 feet,
J.A. at 0180-11-12, while Dugan testified to the Planning Commission that it could only be
located at 40 feet. J.A. at 0013. Neither side provides additional support and the Court cannot

draw reasonable inferences in either party's favor; however, the Board was presented with these
conflicting assertions regarding height, meaning that Dugan's testimony in this respect was at
least contested, if not rebutted.
39

network" but would not replace the need for the site at ACUMC. J.A. at 1243. Regarding the

Providence Steeple, Dugan represented that the site would not be a suitable alternative because it
would not be tall enough and, at a distance of .5 miles from ACUMC, would be "too for from the
heart of the target area." J.A. at 1316.

Plaintiffs' arguments are unconvincing on their face, especially in light of CWS's earlier
position that the Fire Station was the "ideal location" and the short distance between the
Providence Steeple and ACUMC. Moreover, these arguments do not adequately address other
options raised by opponents. For instance, the applicants did not address the feasibility of
alternative arrangements such as a monopole at the Fire Station in combination with DAS nodes
to cover the purported .75 mile gap on Leesburg Pike; a lower tower at the proposed site in
conjunction with a monopole at the Fire Station; expansion of an existing tower; or co-location
on the Providence Steeple in combination with an additional monopole at the Fire Station or

DAS nodes. See Def.'s Summ. J. Br. at 27-28. Opponents presented maps, charts, testimony, and
other evidence supporting such alternative solutions that provided the Board with enough

conflicting evidence that, in combination with the evidence of adverse impact and inconsistency
with the Comprehensive Plan, provided the Board with substantial evidence on which to base its
denial. See, e.g., J.A. at 0336, 0659-64, 1391-94.

Plaintiffs contend that the Board's reliance on community input violated the substantial
evidence standard, and contrast Dugan's expert testimony with the testimony and evidence

presented by opponents, describing the latter as "unsubstantiated claims" based on conjecture
and speculation. Pis.' Summ. J. Br. at 28-29. Plaintiffs also argue that the "number of persons
expressing concerns, standing alone, does not make evidence substantial," and that it is irrelevant

that almost all of the proposal's supporters were also members of ACUMC. Id. at 29 (quoting
40

Petersburg Cellular P'ship v. Bd. of Supervisors of Nottoway Cnty., 205 F.3d 688, 695 (4th Cir.

2000) ("Petersburg Cellular")); Pis.' Opp'n Br. at 15 (citing T-Mobile Ne. LLC v. City Council
of Newport News. Va., 674 F.3d 380, 389 (4th Cir. 2012) ("Newport News")).

Plaintiffs' attempt to minimize the weight of the community opposition is misplaced. The

opposition to this proposal far outweighed the community opposition in Newport News, where
the court "note[d] the absence of repeated and widespread opposition" and described the turnout
as "anemic" when just one person sent an email and three people spoke at a hearing in

opposition. Newport News, 674 F.3d at 390 (internal quotation marks omitted). To the contrary,

the community opposition here was consistent and widespread, far exceeding one email and
three speakers. A survey of residents who lived within .75 miles of the proposed site showed that
over 200 of those local residents or 91% of those surveyed opposed the facility. J.A. at 0637,
1380-81. In addition, a total of 750 individuals signed petitions opposing the site, J.A. at 0637,

62 citizens sent Supervisor Foust emails expressing their opposition, J.A. at 1419, and 17 citizens
spoke before the Board on behalf of SACCT and local residents. Def.'s Summ. J. Br. at 3.
This opposition was not only consistent and widespread but was also "specific,
organized, and grounded in valid concerns." New Cingular Wireless PCS, LLC v. Fairfax Cnty.
Bd. of Supervisors. No. I:10cv283, 2010 WL 4702370, at *5 (E.D. Va. Nov. 10, 2010) affd, 674
F.3d 270 (4th Cir. 2012). The residents conducted field tests regarding coverage, J.A. at 0654,

sent dozens of emails, responded to surveys and petitions, J.A. at 1380-82, met with CWS and
Staff, and gave detailed presentations to the Planning Commission and the Board. See, e.g., J.A.
at 0636-65. The community's concerns were not "irrational," contra Pis.' Opp'n Br. at 15, but

instead focused on the proposed facility's compliance with the Comprehensive Plan. For
instance, residents pointed out that the proposal lacked harmony and consistency with the
41

surrounding neighborhoods and structures, J.A. at 1385, failed to consider locating the facility on

a pre-existing structure, ignored the impact on historical vistas, J.A. at 1374, and lacked adequate
screening to mitigate visual impact. J.A. at 1382-84.

Similarly, many of the emails sent by opponents to Supervisor Foust and the Planning
Commission listed eight specific objections, including that the proposed facility was "contrary to

the spirit and language of the Fairfax County Comprehensive Plan," that the facility's proposed
height was "inappropriate for the neighborhood" because it would "tower over the buildings,
homes and trees in the area" and would lack adequate screening, that the scale of the facility was

not consistent with existing local bell towers, that the proposed facility would impair vistas of
and from historical sites, that alternative sites and technologies should be considered first, that
the proposed facility would increase traffic issues, and that the community opposed the tower.
See, e.g., J.A. at 0457-0511.

The opposition did raise concerns that have previously been deemed unreasonable or
impermissible under the Act, including health concerns, the danger of children climbing on the
tower, and the potential for the tower to collapse, see, e.g.. J.A. at 0044, but the overall weight of
the community concerns was "objectively reasonable because they were based on known

experience about the effects that commercial uses can have on a residential neighborhood" and
particularly on this specific neighborhood. See Petersburg Cellular, 205 F.3d at 695. In contrast,
the citizens who emailed and spoke in favor of the facility were smaller in number and were

almost exclusively members and trustees of ACUMC, many of whom wrote that the proposed
facility would financially benefit the church to enable it to continue with its ministries. See, e.g.,
J.A. at 0180-60. Financial benefit to a private entity has never been deemed a valid concern

under the Act or Comprehensive Plan, and even without this vested financial interest, the citizens
42

in favor of the proposed facility were outnumbered by the opposition and did not present
anywhere close to the number of specific arguments raised by opposition. Therefore, because the
Board based its denial of the Applications in part on "the reasonably-founded concerns of the

community... undoubtedly there is substantial evidence to support the body's decision."
Petersburg Cellular, 205 F.3d at 695. (internal quotation marks and emphasis omitted).

Accordingly, plaintiffs have not provided sufficient evidence from which any reasonable
juror could find that the Board's decision to deny the SE Application and reverse the Planning
Commission's acceptance of the 2232 Application was not supported by substantial evidence and
was arbitrary and capricious. Therefore, summary judgment will be granted to the Board on
Counts I and IV.
E. Count II: Prohibition of Service

In Count II, plaintiffs allege that the Board's decision prohibits or has the effect of
prohibiting the provision of "personal wireless services" by Verizon and therefore violates 47
U.S.C. § 332(c)(7)(B)(i)(II). Pis.' Summ. J. Br. at 30. The Act defines "personal wireless
services" to "mean commercial mobile services, unlicensed wireless services, and common

carrier wireless exchange access services." 47 U.S.C. § 332(c)(7)(C)(i). The Federal
Communications Commission ("FCC") ruled in 2007 that wireless broadband Internet access
services do not qualify as "personal wireless services" under that definition but are instead
treated as "information services." Appropriate Regulatory Treatment for Broadband Access to
the Internet Over Wireless Networks, 22 F.C.C.R. 5901, 5901-02 H 1 (2007). "Information
services" are nonetheless protected by the Act when "a wireless service provider use[d] the same
infrastructure to provide its 'personal wireless services' and wireless broadband Internet access

43

service." Id. at 5923-24, ^| 65. Therefore, when there is "[cjommingling" of services at a
proposed facility, the facility is deemed to be a "personal wireless facility." Id.
The Court reviews a claim of effective prohibition of service de novo. Loudoun Cnty.,
748 F.3d at 192 (citing 47 U.S.C. § 332(c)(7)(B)(v)). Although the Court has determined that
Verizon does not have standing in this litigation, in the interest of creating a complete record, the

plaintiffs' argument about this issue will be addressed. To prevail on a prohibition of service
claim, a wireless carrier must show either "that a local governing body has a general policy that
essentially guarantees rejection of all wireless facility applications," or that "denial of an

application for one particular site is 'tantamount' to a general prohibition of service." T-Mobile
Ne. LLC v. Fairfax Cnty. Bd. of Supervisors, 672 F.3d 259, 266 (4th Cir. 2012) (citations
omitted) ("Fairfax Cnty."); see also New Cingular, 674 F.3d at 275-76.
Under the latter theory, a plaintiff must demonstrate both "a legally cognizable deficit in

coverage amounting to an effective absence of coverage" and a lack of "reasonable alternative

sites to provide coverage." b Fairfax Cnty., 672 F.3d at 268. Demonstrating a lack of reasonable
alternatives requires showing that "further reasonable efforts to gain approval for alternative sites
would be fruitless." Id. (internal quotation marks omitted). A plaintiffs burden of proof on a

prohibition of service claim "is substantial and is particularly heavy when...the plaintiff already
provides some level of wireless service to the area," because "the Act cannot guarantee 100
percent coverage." Id. Therefore, a plaintiff cannot demonstrate prohibition of service in "the
ordinary situation in which a local governing body's decision simply limits the level of wireless

15 The Applicants presented evidence of "need" using letters of interest from T-Mobile and
Sprint. J.A. at 0696-97. These letters of interest are not helpful to plaintiffs because they were
non-binding expressions of interest and spoke only of improving wireless service in the area
rather than resolving an effective absence of coverage.
44

services available" or merely by showing that alternative sites would not eliminate the entire

coverage deficiency or provide the same level of coverage as the proposed facility. Id. at 268-69.
Although a denial of coverage claim is "a fact-bound inquiry," the Fourth Circuit has
found that a local county board's decision denying an application did not prohibit service where
there were "genuine factual disputes" about the absence of service in an area, and where the
board demonstrated through a record of prior approvals that it was not generally hostile to

wireless services. 360° Commc'ns Co. of Charlottesville v. Bd. of Supervisors of Albemarle
Cnty., 211 F.3d 79, 87-88 (4th Cir. 2000) ("360 Commc'ns"); see also T-Mobile Ne. LLC v.

Howard Cnty. Bd. of Appeals, No. 12-1682, 2013 WL 1849126, at *15 (4th Cir. May 3, 2013)

(stating that the Fourth Circuit "also considers] a zoning board's past decisions on applications"
in an assessment of whether future efforts would be fruitless).
Plaintiffs have not argued that the Board has a general policy guaranteeing rejection of all
applications for wireless facilities, nor is there any evidence that the Board does have such a

policy. Instead, Verizon claims that it demonstrated an effective absence of coverage through
Dugan's testimony and propagation maps, arguing that the Board and the proposal's opponents
did not present any expert testimony or professionally prepared data contradicting Dugan's
evidence. Pis.' Summ. J. Br. at 31. The Board counters that Verizon's evidence did not

demonstrate any significant gap in coverage and showed only that Verizon sought to improve

existing coverage and provide capacity relief. Def.'s Summ. J. Br. at 22-23. The parties also
dispute whether the 4G LTE service plaintiffs seek to provide is a "commercial mobile service"
covered by the Act. The Board argues that Verizon seeks only to provide wireless internet
services that are "information services" rather than a "commercial mobile service." Id. at 25-26.

Plaintiffs respond that the data and voice services are commingled and thereby protected and, in
45

the alternative, that the FCC's recent reclassification of mobile broadband Internet access as a

mobile service is controlling.16 Pis.' Opp'n Br. at 28-29.
The parties raise these arguments regarding "information services" only in their summary
judgment papers, without explicit discussion of the distinction between "personal wireless
services" covered by § 332(c)(7) and any services beyond that section's purview. Had the Board
made its decision after March of 2015, the issue would be easily resolved, because the FCC's

March 2015 ruling clearly reclassifies the 4G LTE coverage Verizon seeks to provide as a
"commercial mobile service;" however, because the Board made its decision in December 2014,

the relevant inquiry is whether Verizon has demonstrated that the proposed facility would use the

same infrastructure to provide both "personal wireless services" as defined before March 2015

and 4G LTE coverage. Plaintiffs contend that the "inherently interdependent design" of "wireless
telecommunications and information networks" means it is "impossible to isolate 'data'
sites... from 'voice' sites" under the terms of the statute, Pis.' Reply Br. at 15, because "when the

Verizon Wireless network offloads data traffic to a 4G LTE site, voice communication through

other sites on the Verizon Wireless network improves." Pis.' Opp'n Br. at 28. Plaintiffs further
argue that the use of "modern voice transmission technologies such as a Voice over LTE and
High Definition Voice" show that an LTE network still carries voice communications and is
commingled with "personal wireless services." Id. at 28-29.

In March 2015, after the Board denied the Applications, the FCC reclassified mobile
broadband Internet access service as a "commercial mobile service," meaning that an effective
prohibition of wireless broadband services now violates the Act. Protecting and Promoting the

Open Internet, 30 F.C.C.R. 5601, FCC 15-24, GN Dkt. No. 14-28, 178 «|| 388 (Mar. 12,2015).
The FCC stated that the "classification decisions" made in that ruling would "apply only on a
prospective basis." Id. at 134 }\ 308 n.792. Therefore, this reclassification has no relevance to this
lawsuit. Verizon is engaged in legal efforts to overturn that classification decision. Pis.' Opp'n
Br. at 29, 29 n.8.
46

To support these assertions, plaintiffs point to Dugan's testimony before the Board

regarding these "technical realities." Id. (citing J.A. at 1363-64). During that testimony, Dugan
discussed the growth in "data uses" that require Verizon to upgrade to 4G LTE, the improved
signal levels "required to provide voice and data services" on LTE smarlphones, and Verizon's
use of "voiceover LTE," which Dugan described as "the voiceover riding over a high-speed
broadband network" and producing "[h]igh definition quality." J.A. at 1363-64. Dugan did not
refer to "voiceover LTE" in his testimony before the Planning Commission or in his report to the

Planning Commission, nor did he discuss any type of coverage other than 4G LTE in those
submissions.

Neither plaintiffs' assertions nor Dugan's testimony demonstrate that Verizon intended to
commingle "personal wireless services" and wireless broadband Internet services at the proposed
facility. Instead, the record indicates that Verizon sought to use the proposed facility to provide
wireless broadband Internet services including 4G LTE and Voiceover LTE. Few courts have
addressed this issue, but at least one court has found that a proposed site intended to provide only
4G service did not qualify as a "personal wireless facility" under the FCC's pre-2015 rulings
because it would be used "solely to provide an 'information service.'" Clear Wireless LLC v.
Bldg.Dep'tofLvnbrook. No. 10-CV-5055, 2012 WL 826749, at *6-7 (E.D.N.Y. Mar. 8,

2012).

In Clear Wireless, the wireless provider "implied that a failure to upgrade to 4G could

negatively impact...personal wireless services, leading to a deficiency in voice services;"

however, the court found that the provider had not supported this assertion "beyond an anecdote
about an increase in dropped calls." kf at *7. Plaintiffs in this case have not provided even that
This case and an additional case, Arcadia Towers LLC v. Colerain Twp. Bd. of Zoning
Appeals, No. L10-CV-00585, 2011 WL 2490047 (S.D. Ohio June 21, 2011), appear to be the
only two decisions addressing a prohibition of service claim regarding "information services,"
and they are the only two cited by the parties in their summary judgment briefs.
47

amount of evidence. At best, plaintiffs' assertions and Dugan's testimony show that the proposed

facility would improve voice coverage currently provided by other sites. Plaintiffs do not showthat the proposed facility would provide both 4G LTE coverage and "personal wireless services"
at the same site, using the same infrastructure. Plaintiffs' contentions about "Voice over LTE and

High Definition Voice" similarly fail to show that the proposed facility would commingle

"personal wireless services" and "information services," because Dugan's testimony indicates
that "Voice Over LTE" is simply another type of wireless broadband Internet service. See J.A. at
1364.

Even if Verizon could show that 4G LTE and "personal wireless services" would be

sufficiently commingled at the proposed site to qualify the site as a "personal wireless facility,"
Verizon still cannot make out a prohibition of service claim because it has not proven that there
is an effective absence of coverage. Instead, "Verizon Wireless freely concedes that it is trying to

enhance its network and provide better service to its customers." Pis.'Opp'n Br. at 25. Verizon
represented to the Planning Commission and Board that it sought to "improve its wireless
telecommunications network" in the area, thereby acknowledging an existing level of service.

J.A. at 0767. Plaintiffs also stated in their Amended Complaint that Verizon "is in the process of
transitioning its technology to 4G or Long Term Evolution ("LTE") service. LTE offers not only
higher capacity (call volume) per site, but also makes possible additional wireless services such

as mobile data and location-based services, thus expanding the utility and reliability of wireless
services." Am. Compl. ^| 17. Verizon also claimed that without a sufficient number of cell sites in
any one area, Verizon would "not be able to provide uninterrupted service." Id ^ 19. These

representations reflect Verizon's desire to provide 100% coverage and to improve and expand its

48

services, not to resolve a legally cognizable gap in those services. Such goals are not protected
by the Act.

Similarly, Dugan represented to the Planning Commission and Board that Verizon had to
"build ahead of the curve in order to meet the demand for service," J.A. at 0079, and needed to

"upgrade their networks;" that the proposed facility would "provide coverage benefits as well as
capacity off-loading benefits," J.A. at 1364; that it was "critical for Verizon Wireless to relieve
traffic" from nearby sites, J.A. at 0013; and that the proposed facility would "[i]ncrease
capacity," J.A. at 0016, "improve service and provide better handoff between the existing sites
serving the heavily traveled Leesburg Pike," and provide "0.5-1.0 mile of enhanced new 4G LTE
service to the area." J.A. at 0723. Dugan's statements before the Planning Commission and the

Board consequently referred only to improving existing coverage and increasing capacity for
offloading from existing sites in the area, rather than to remedying any effective absence of

coverage in the area. See J.A. at 0012-14, 1363-64. In fact, Dugan stated that "LTE service is
currently available in the area," but that the latest form of technology required better signal levels
because it does not work "in all areas at all times." J.A. at 1363-64. Therefore, plaintiffs'
evidence demonstrates that there are existing Verizon sites in the area providing coverage, that
there is at most a one-mile gap in 4G LTE coverage but not in 3G or traditional voice coverage,
and that Verizon wishes to improve 4G LTE coverage rather than resolve an absence of

coverage. Such improvements may be desirable, but they are not protected from local decision
making under 47 U.S.C. § 332(c)(7)(B)(i)(II).
Despite Verizon and Dugan's characterization of the issue, Verizon persists in arguing

that there is in fact evidence of an effective gap in coverage, relying primarily on the propagation
maps produced by Dugan. These maps were based on a target signal level of-95 dBm RSRP
49

(reference signal received power) and showed an area of white space denoting in-building
coverage that fell below that level. J.A. at 0724, 730-32. According to Dugan's testimony and the

maps, the proposed facility would resolve this gap, id.; however, these maps, like Dugan's
testimony, are focused exclusively on a particular level of 4G LTE service, rather than 3G or
traditional voice coverage. Dugan stated that RSRP "is generally the preferred signal
measurement used for LTE networks" and acknowledged that the maps contained a margin of

safety (fade margin)18 because below this threshold "the connection and download speed of
broadband wireless internet services degrades dramatically." J.A. at 0724. Dugan's testimony

shows that the white space on the maps does not correspond to an effective absence of overall
coverage but rather to a diminished level of wireless internet services. Although these maps
demonstrate that the Board's decision may have the effect of limiting the level of data or wireless

internet services Verizon can provide, they do not prove that there is an effective absence of
coverage that the Board's decision would prohibit Verizon from resolving.
Moreover, Dugan's propagation maps conflict with marketing maps available on
Verizon's website, which show full 4G LTE coverage where Dugan's show white space, and

which state that even when 4G LTE is not available customers may connect to 3G service
instead. J.A. at 0824. Although Dugan and Verizon argue that these marketing maps "are not an
exact representation of coverage," J.A. at 0724, they serve both to cast doubt on the reliability of
Dugan's testimony and to provide relevant evidence that Verizon has significant existing

coverage in the area, even if it is not full 4G LTE coverage at all times in all places. Therefore,
even if Dugan's maps demonstrate some gap in 4G LTE wireless and data coverage, they do not

meet Verizon's heavy burden of demonstrating an effective absence of all forms of coverage.
The extent of this fade margin was not identified by either Dugan or Verizon. Def.'s Summ. J.
Br. at 25.

50

Furthermore, Dugan did not provide any data or other evidentiary basis for his maps and
conclusions, and Verizon did not provide any additional data beyond Dugan's maps and
testimony to demonstrate an effective absence of coverage. In particular, the Board highlights
Verizon's failure to submit field test data, complaint logs, dropped or lost call data, maps for
projected DAS coverage on Route 7, or a propagation map for voice only service rather than data

service. Def.'s Summ. J. Br. at 24.19 Dugan stated that Verizon uses "a wide variety of
propagation models, drive tests, customer complaints, and other things" to determine where
facilities are needed, J.A. at 0079; however, neither Dugan nor Verizon presented evidence of, or

data from, these models or tests beyond the propagation maps. Dugan stated that his analysis was
based on drive test data, J.A. at 0724-25, but he never provided that data or any other data
supporting the maps or his testimony, even though he has done so in other cases where he served
as an expert witness. See Omnipoint Commc'ns Enters., L.P. v. Zoning FIr'g Bd. of Easttown

Twp., 331 F.3d 386, 392 (3d Cir. 2003) (Dugan oversaw "drive tests in which approximately six
hundred forty actual calls were made using eight cell phones of various providers" to track the
number of dropped calls and instances of no service.); see also New Cingular Wireless PCS v.
Zoning Hr'g Bd. of Weisenberg Twp., No. 06-2932, 2009 WL 3127756, at *4 (E.D. Pa. Sept. 29,

2009) (defendants' expert conducted drive tests and reviewed the drive tests conducted by Dugan
and another expert). If Dugan collected any such data in this case he did not present it to the
Planning Commission or the Board.

19 SACCT presented an email chain showing that Staff requested such additional information
from Verizon before issuing its report, J.A. at 1098-1101, and Staff later told the Planning
Commission that the Applicants did not provide everything suggested but did submit an amount
of information consistent with other 2232 applications. J.A. at 0081, 0613. Verizon emphasizes
Staff's statement that the additional requested information was not required or essential and
argues that dropped call logs are an antiquated metric not required to demonstrate an absence of
coverage. Pis.' Reply Br. at 15 (citing J.A. at 0613).
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Instead, it was the opponents of the proposed facility who crowd-sourced data, J.A. at
0654, and conducted multiple field tests which demonstrated that Verizon customers had strong
to adequate service in the area of the purported coverage gap. J.A. at 0180-55-59. Although the
members of SACCT are not professional engineers, that they furnished this data, and Dugan and
Verizon did not provide anything like it, further highlights the plaintiffs' overall lack of

evidence. At the very least, SACCT's evidence showed that "genuine factual disputes" exist over
the absence of coverage in the relevant area. See 360° Commc'ns. 211 F.3d at 87-88. This
showing provides a sufficient basis to find that the Board's decision did not result in a
prohibition of service.
Finding that on this record Verizon has not demonstrated an effective absence of

coverage does not mean that dropped call data or any specific forms of evidence are required to
prove a prohibition of service claim; rather, this finding is based on Verizon's failure to meet its
"particularly heavy" burden of proof by supplying sufficient evidence to demonstrate an
effective absence of coverage. At most, Verizon's evidence indicates that the Board's decision

prevents Verizon from improving existing service, particularly wireless internet and data service,

but it does not demonstrate that the decision prohibits Verizon from providing personal wireless
services under the terms of the Act.

Even if Verizon had proven that there are cognizable gaps in coverage, Verizon must also
demonstrate that no reasonable alternative sites could provide that coverage and that further

efforts to gain approval of alternate sites would be futile. In determining the availability of other
sites, the Fourth Circuit has explicitly rejected the use of "any specific formula" such as the

"least intrusive means" test used by several circuits and focuses instead on "a fact-based analysis
of the record." Fairfax Cnty., 672 F.3d at 266-67; see also 360° Commc'ns, 211 F.3d at 87.
52

Plaintiffs argue that they "meticulously examined 14 alternative sites before concluding
that Andrew Chapel was the only feasible location" for the proposed facility, Pis.' Reply Br. at
17, and cite Staff and the Planning Commissions' findings that they adequately explored
alternative sites. Pis.' Opp'n Br. at 25. That these entities credited plaintiffs' assertions is
irrelevant to the prohibition of service claim and does not compensate for plaintiffs' lack of
additional evidence on the issue, because, as stated before, neither the Court nor the Board owes

deference to Staff or the Planning Commission's determinations.
Moreover, simply "examining" alternative sites does not suffice; Verizon must also show
that those sites are not reasonable alternatives that would resolve at least some of Verizon's

purported coverage gap. The parties' debate over alternatives focused in particular on the
availability of the Fire Station, the Providence Steeple, DAS nodes, or some combination

thereof. Verizon again relies almost exclusively on Dugan's testimony and propagation maps to
support its claim that it adequately examined and eliminated those options. Dugan stated that he
made a site visit to the Fire Station and Providence Steeple, and that those sites did not "fulfill

the objectives" of the proposed facility. J.A. at 0724. Regarding the Fire Station, CWS stated that
the site was "too far west," J.A. at 1290, and Dugan stated that the site would leave a "0.75 mile

coverage gap" and would "not provide enough coverage overlap" with the existing facilities in
the area to allow for capacity relief. J.A. at 0724. Plaintiffs assert that these conclusions were
"carefully documented with scientific evidence," Pis.' Opp'n Br. at 26, but that evidence consists

only of Dugan's propagation maps, which are not only unsupported by data or methodology but
also demonstrate a large overlap between the coverage the Fire Station and the proposed facilitywould respectively provide. J.A. at 1310-12. Beyond this evidence, plaintiffs' main additional
argument is that a 2232 review and other steps would be required to build a facility at the Fire
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Station, but there is no indication that meeting these requirements would be difficult given the
Board's interest in that site being considered, see J.A. at 1426, and it is well established that "the

difficulties in meeting such restrictions are insufficient to establish that a provider lacks
reasonable alternatives." Fairfax Cnty., 672 F.3d at 269; see also New Cingular, 674 F.3d at 276.

Dugan ruled out the Providence Steeple as being too short and far away from "the target
area" to meet coverage objectives, even though it is a half mile from the proposed facility. J.A. at

0724. He did not produce a propagation map or any additional data to demonstrate the coverage
that the Providence Steeple might provide or how that coverage might be inadequate. Instead, he
made additional unsupported assertions that reducing the proposed antenna height would
"compromise" and "reduce[]" service in contrast to the proposed height, which would instead

"provide service to a far wider area." Id Again, he presented no evidence demonstrating exactly
how much coverage the Providence Steeple or a lower antenna at the proposed site would
provide.

Dugan's assertions that DAS nodes are not feasible were similarly conclusory and
contradicted by evidence of existing nodes in the area. Additionally, Dugan did not present
evidence regarding how a combination of any of these options—the Fire Station, Providence
Steeple, a lower tower at ACUMC, and/or DAS nodes—might affect coverage. Therefore,
plaintiffs fail to demonstrate that alternative sites would not serve at least some of Verizon's

purported coverage needs. Dugan's testimony shows only that these alternative sites might not

serve those needs as well as the proposed facility, which is insufficient to prove that they are not
reasonable alternatives. Fairfax Cnty., 672 F.3d at 269 (affirming the denial of plaintiffs

application where its "several declarations, along with some exhibits" simply presented "very

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general conclusions regarding the feasibility of alternative locations, including repeated
assertions that the locations 'would not allow T-Mobile to meet its coverage objectives'").
Plaintiffs try to save Dugan's testimony by arguing that the Board's decision to disregard

his testimony "was based on nothing more than the unsupported opinion of a single Supervisor."
Pis.' Summ. J. Br. at 32. This argument appears to refer to Supervisor Foust's estimate that there
was a 60% overlap in coverage between the Fire Station and the proposed facility. J.A. at 1426.
Supervisor Foust appears to have based his opinion at least in part on Dugan's propagation maps,

which show a substantial overlap between the coverage that the Fire Station and the proposed
facility would each provide that opponents estimated to measure from 50 to 70%. J.A. at 011415. These maps demonstrate that the Fire Station could provide at least half of the desired

coverage. Plaintiffs' failure to provide any evidence to the contrary, other than their conclusory
statements that the Fire Station would "not provide enough coverage overlap" for capacity relief,
means they have not satisfied their heavy burden of proving that the Board has prohibited them
from providing coverage.

Moreover, plaintiffs fail to demonstrate that further efforts to obtain approval of alternate
sites or designs would be fruitless. Plaintiffs claim that the process of working with Staff to
refine the proposed facility, only to have the proposal rejected by the Board, demonstrates that
further efforts would be fruitless. Pis.' Reply Br. at 19. They also argue that the Board's refusal
to accept any structure with the height plaintiffs require and refusal to consider evidence in

support of plaintiffs' proposed structure shows an "unalterably closed mind." Id. at 20 (internal
quotation marks and citations omitted); Pis.' Summ. J. Br. at 33.

As discussed above, the Board's justification for rejecting the proposed facility was not
simply that it was "too tall," contra Pis.' Summ. J. Br. at 33; rather, the Board's rejection was
55

based on the proposal's overall visual impact and noncompliance with multiple provisions of the

Comprehensive Plan and Zoning Ordinance. Nothing in this record shows that the Board is
unwilling to accept any proposed wireless facility. In fact, although this evidence is not in the
record, the Board represented that it has approved 550 applications since 2010, 87 of which were
Verizon's applications, Def.'s Opp'n Br. at 10, and the Fourth Circuit has recognized the Board's

"strong history of approving wireless facilities." Fairfax Cnty., 672 F.3d at 269. Additionally, in
issuing its denial of the Applications, the Board expressed interest in the availability of
alternative sites and technologies, including the Fire Station and DAS, J.A. at 1461, thereby

reflecting its willingness to approve wireless structures that do comply with the Comprehensive
Plan and Zoning Ordinance. Because further efforts by plaintiffs to design such structures would
not be fruitless, Verizon cannot demonstrate a lack of reasonable alternatives.

Therefore, plaintiffs have not carried their "heavy burden" of demonstrating that this

particular denial constituted a general prohibition of service, see Fairfax Cnty., 672 F.3d at 268,
and have not provided sufficient evidence from which a reasonable juror could find that the

Board violated 47 U.S.C. § 332(c)(7)(B)(i)(II). Accordingly, summary judgment will be granted
for the Board on Count II.
III.

CONCLUSION

For the reasons stated above, the plaintiffs' Motion for Summary Judgment will be
denied and the defendant's Motion for Summary Judgment will be granted by an appropriate
Order to be issued with this Memorandum Opinion.

Entered this 33 day of October, 2015.
/s/

Leonie M. Brinkema

&

United Slates District Judge

Alexandria, Virginia
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