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Verizon Wireless Tennessee Partnership v. Desoto County

United States District Court, N.D. Mississippi, Oxford Division

December 16, 2019



          Michael P. Mills United States District Judge.

         On December 2, 2019, this court held a hearing in the above-entitled action to consider plaintiff Verizon Wireless' (“Verizon”) motion for a permanent injunction ordering defendant Desoto County to approve its application for a conditional use permit to build a cell-phone tower at a location known as the Proposed Sugarcoated Site. This court, having considered the parties' briefing, the administrative record, and the arguments at the hearing, is prepared to rule.

         Verizon filed the instant action under the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), (the "TCA" or “the Act”), alleging that defendant Desoto County, acting through its Board of Supervisors, violated federal law by denying it permission to construct the wireless telecommunications tower at issue in this case. Verizon alleges (and the County denies) that a gap exists in its cell phone coverage in the area which requires the building of an additional wireless tower. Verizon accordingly filed, on or about October 4, 2017, a conditional use application to build a one hundred and ninety (190) foot monopole wireless communications tower in western Desoto County. The Desoto County Board of Supervisors (“the Board”) held a public hearing on Verizon's application on December 18, 2018, following which it unanimously voted to deny the application.

         In its January 22, 2018 resolution denying the Application, the Board gave five grounds for its decision:

1. There is insubstantial proof as to whether there exists a gap in coverage for the area to be serviced by the proposed cell tower;
2. There is insubstantial proof as to whether existing towers could or could not be enhanced so as to provide improved service to the area;
3. There is not sufficient evidence, there will be significant aesthetic effects to the community. [sic][1]
4. The no build zone of 142.5 feet, set forth in the DeSoto County Zoning Ordinance, has not been met, as the distance to property line of the James' property is 137 feet, and the first outbuilding is 178 feet away and tower is 190 feet.
5. The construction of the tower will adversely affect the drainage in this area.

[Joint Exhibit 5]. In seeking a permanent injunction, Verizon argues that there was insubstantial evidence to support any of these findings and that this court should effectively vacate the Board's decision through its injunctive powers.

         As the Fifth Circuit has noted, “substantial evidence' is ‘such reasonable evidence that a reasonable mind would accept to support a conclusion.'” Poly-America, Inc. v. NLRB, 260 F.3d 465, 476 (5th Cir. 2001). A finding of substantial evidence requires “more than a mere scintilla and less than a preponderance.” Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir.2002) (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). … However, the reviewing court may not “re-weigh the evidence or substitute [its] judgment” for the judgment of the local government. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). Substantial evidence review is therefore “highly deferential.” VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003) (quoting Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 627 (1st Cir. 2002)). The plaintiff carries the burden of proving that no substantial evidence supports the local government's decision. VoiceStream, 342 F.3d 818, 830-31 & n. 5; Am. Tower LP v. City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002). Having noted the applicable standard of review, this court now turns to a discussion of the Board's five findings in this case.

         1. There is insubstantial proof as to whether there exists a gap in coverage for the area to be serviced by the proposed cell tower;

         2. There is insubstantial proof as to whether existing towers could or could not be enhanced so as to provide improved service to the area.

         This court first considers Verizon's objections to the Board's initial finding, namely that “[t]here is insubstantial proof as to whether there exists a gap in coverage for the area to be serviced by the proposed cell tower.” Closely related is the Board's second finding, which stated that “[t]here is insubstantial proof as to whether existing towers could or could not be enhanced so as to provide improved service to the area.” Each of these findings relates to the basic need for the project, which this court regards as the most consequential one in this case. The issue of need goes to the heart of the TCA's basic approach, which is to show deference to the right of local governments to make land use decisions, but only to the extent that those decisions do not prevent providers from addressing “substantial gaps” in coverage.

         Federal law aside, it strikes this court that the basic burden of any company or individual seeking to proceed with a land use project in the face of public opposition is to demonstrate that it is needed. In deciding whether Verizon demonstrated that the project in this case was needed, it is first necessary to determine under what standards that need is to be assessed. As to this issue, Verizon asserts that “numerous decisions” have held that “a lack of ‘in-building' coverage is the standard for establishing [a] substantial gap in coverage.” [Brief at 6, citing Branch Towers, LLC v. City of Knoxville, No. 3:15-CV-00487, 2016 WL 3747600, at *6 (E.D. Tenn. July 11, 2016).

         This court's reading of federal authority in this context is that in-building coverage has been deemed one part of the required showing, along with in-vehicle and outdoor coverage. See T-Mobile Cent., LLC v. Wyandotte County, Kansas, 528 F.Supp.2d 1128, 1169 (D. Kan. 2007). However, the district court in Wyandotte County made it clear that isolated “dead spots” in coverage do not necessarily indicate a “substantial” gap in coverage, writing that:

In so holding, the Court is mindful that the TCA does not guarantee T-Mobile seamless coverage in every location within the targeted area. Indeed, courts have expressly recognized that the presence of “dead zones, ” or pockets in which coverage does not exist, are not actionable for purposes of arguing effective prohibition claims under the TCA. Here, however, T-Mobile has proven that its lack of in-building coverage within the area to be served by the new tower is widespread, and qualifies as more than mere “dead spots.”

Id. at 1169-70. This court notes that the proof of coverage gaps presented by the provider in Wyandotte County was vastly greater than that presented by Verizon in this case. For example, the district court noted in that case that:

In conjunction with re-submission of the propagation maps, T-Mobile also submitted results of a drive-test conducted at City Staff's request, which confirms the propagation prediction analysis establishing a significant in-building service coverage gap. T- Mobile's radio frequency engineer explained the propagation maps and the drive tests at the April 10 Planning Commission hearing. … In addition to the propagation maps and drive-test, T-Mobile also presented evidence of dropped calls. This evidence certifies that in one week, customers “dropped” 1, 812 calls in the targeted area and that in another week, T-Mobile customers “dropped” over 2, 700 calls in the targeted area. … Finally, T-Mobile's coverage gap consists of a sizeable area in which approximately 600 households have no in-building coverage.

Id. at 1166-67. As discussed below, Verizon did not present evidence of need even remotely comparable to this evidence in Wyandotte County.

         This court recognizes that the issue of whether a “significant gap in coverage” exists is separate and distinct from that of whether the county had substantial evidence in support of its conclusion that a gap existed at all. Nevertheless, it seems quite significant that, in addressing the issue of whether gaps in coverage exist, federal courts have considered the coverage experienced by actual residents. This court can discern no reason why this approach would not also apply in deciding whether the County had substantial evidence in support of its conclusion that Verizon had failed to demonstrate any gap in coverage, substantial or not. At the December 2 hearing, counsel for Verizon did not appear to question this premise, and it would frankly strike this court as absurd to base conclusions about the level of coverage in a given area on anything other than the experiences of actual human beings.

         This court presumes that Verizon has legitimate business reasons for wanting to build the cell phone tower at issue in this case, or else it would not have taken the time and expense to litigate this matter at all. Nevertheless, not all projects which a telecommunications provider believes will benefit its bottom line provide corresponding benefits to residents, and this court regards it as significant that Verizon concedes that federal courts have found that the issue of gaps in coverage should be understood in terms of the coverage experienced by actual residents. The expert report which Verizon relies upon as its central proof in this case, prepared by its engineer Gil Tomlinson, is written in vague terms of “offloading Verizon's existing sites” as a result of “heavy usage stemming from the new Verizon Unlimited Data Plan.” [Tomlinson report at 1]. This court regards this potion of Tomlinson's report as representing, perhaps, a rare moment of candor which Verizon may now regret, as it seeks to shoehorn this case into the federal precedent dealing with the actual gaps in coverage, which have not been demonstrated in this case. Indeed, Verizon does not offer a single case suggesting that, if a provider makes a business decision to offer an Unlimited Data Plan, and suffers congestion as a result, then it may use the TCA as a means of forcing local governments to approve, over the objections from residents, new cell phone towers which accommodate that business decision.

         To the extent that Tomlinson's report paid lip service to any actual gaps in coverage, it did so through highly conclusory language lacking any specific reports from residents. Moreover, Tomlinson prepared a map depicting an alleged “low coverage” area in blue with no explanation of what “low coverage” means in terms of actual residents. [Tomlinson letter at 1-2]. Given the lack of specifics from Tomlinson's report on this issue, it strikes this court as quite significant that, at the hearing below, the only proof from actual residents regarding the coverage they experienced was that no gap in coverage existed. For example, Supervisor Bill Russell affirmed at the hearing that he had personally tested the coverage in preparation for the hearing and found it to be satisfactory. Specifically, Russell stated at the hearing that:

[T]he applicant twice has stated a definite gap in service, and I personally drove this entire area, a three mile area around this area Saturday -- this last Saturday and last night at nine o'clock with a Verizon phone and determined that to be untrue. I had at least two bars in that entire area. I had a gentleman with me, and we called each other back and forth, and there was no gap in service.

[Hearing transcript at 64]. Similarly, area resident Judy James testified that:

Our neighbors don't want this. We talked with them directly. No. one said, "Oh, yay, my cell phone hasn't been working very well." Nobody said that. They said, "No, we do not need that in this area."

[Hearing transcript at 33].

         In its brief, Verizon dismisses this testimony as that of “lay witnesses, ” [Trial brief at 7] but Supervisor Russell's account is frankly more helpful to this court in understanding the actual degree of coverage in the area in question than anything presented in Tomlinson's report. If Verizon believes that Russell's description of coverage is incorrect, then it should have presented its own testimony to the effect that residents in a particular location were unable to receive satisfactory coverage. As quoted above, the provider in Wyandotte County did just that, in great detail. In this case, Verizon's only witness at the hearing was David McGehee, an alleged real estate agent whose primary role seemed to be to present Tomlinson's expert report dealing with engineering matters which McGehee was not qualified to discuss. Perhaps there is some logic to having an expert report prepared by an engineer be presented by a real estate agent, but, if so, then ...

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