Background
T-Mobile applied in twenty ten to build a cell tower in Roswell, Georgia. The city denied the application. T-Mobile sued under the Telecommunications Act of nineteen ninety-six, alleging the denial prevented it from filling a service gap. The district court ruled for T-Mobile, applying a significant gap test that required the provider to prove the tower was the least intrusive means to close a coverage gap. The Eleventh Circuit previously reversed the case on different grounds, and the Supreme Court also reversed. On remand, the district court again ruled for T-Mobile after a bench trial. The city appealed, arguing the significant gap test was incorrect.
The court’s reasoning
The court analyzed the text of section three three two of title forty seven of the United States Code. It concluded that the term regulation means control by rule or restriction. The court found that a local government does not regulate by denying a single permit; it simply declines to grant permission. The court noted that Congress used the term decision when referring to individual permit denials and regulation when referring to rules. Therefore, the effective prohibition clause limits only the ability of municipalities to control facility siting by rules, not by individual zoning decisions. The court held that the significant gap test fails because it attempts to apply substantive limitations to individual decisions rather than rules.
What it means going forward
Cellular providers can no longer rely on the significant gap test to challenge individual permit denials under the effective prohibition provision. They must now challenge the underlying zoning rules or demonstrate that a pattern of denials reflects an unwritten rule that effectively prohibits service.
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