T-Mobile Northeast LLC v. Fairfax County Bd. of Sup’rs, No. 11-1060

Decided Mar. 1, 2012

T-Mobile sought to extend the height of its cell tower and add several antennae around the edge in an attempt to improve coverage in the area. Both Verizon and AT&T had recently made alterations to their towers (a rise in height and adding antennae respectively). However, the Fairfax Planning Commission rejected T-Mobile’s tower expansion, finding that it was not in accordance with the county’s comprehensive zoning plan. T-Mobile appealed under 47 U.S.C. §332(c)(7)(B)(v), a federal statute that restricts the ability of local zoning laws to infringe on wireless service facilities. Both T-Mobile and the local Board moved for summary judgment and the district court granted it for the Board.

T-Mobile appealed arguing that the district court had erred by finding that the Board had not violated the statute, specifically that the permit denial restricted providing personal wireless services and unlawfully discriminated against T-Mobile as against its competitors.

The Fourth Circuit, by a divided panel, affirmed the decision. In order to show a restriction of service availability, a claimant must show that either “a local governing body has a general policy that effectively guarantees the rejection of all wireless facility applications . . . [or] that the denial of an application for one particular site is ‘tantamount’ to a general prohibition of service.” T-Mobile was unable to carry the burden to show that the Board’s rejection of a tower height increase amounted to a prohibition of wireless services in the area. Also, the Board’s decisions to grant permits to Verizon and AT&T were based on proper zoning principles, evaluated independently of T-Mobile, and distinguishable from T-Mobile’s rejection. The company, then, could not show discrimination.

Judge Agee filed a concurring opinion. While he joined completely with the majority’s opinion, he wrote separately to highlight the “substantial burden” that a plaintiff must meet in order to satisfy the prohibition clause of the statute.

Judge Davis, however, filed a separate opinion concurring in part in dissenting in part. While the judge agreed with the statement of the rule regarding the “blanket ban” provision of the statute, he disagreed that T-Mobile had not met its burden at least insofar as creating a genuine dispute of fact necessary to overcome summary judgment.

Full Opinion

-C. Alexander Cable

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