The United States Court of Appeals for the Ninth Circuit recently issued a decision stating that T-Mobile had the right to construct a wireless antenna because the city of Anacortes did not adequately provide alternatives for where they could also construct after denying their original request.
The case, T-Mobile USA Inc. v. City of Anacortes, overturned a decision by the city denying a permit requested by T-Mobile for a 116-foot monopole antenna on the grounds that the denial violated the federal Telecommunications Act.
The court ruled that the denial by Anacortes amounted to an effective prohibition of wireless services to the general public.
Robert Jystad, with Channel Law Group and Vice President of California Wireless Association, cited that the decision provides important insight for California jurisdictions.
Jystad said California Wireless wants to alert local elected officials in the state of California that when wireless prospects come their way, they need to provide adequate alternatives if they are not pleased with the original location chosen by those carriers.
In the T-Mobile case, since the City of Anacortes made their denial without offering any adequate alternatives to the original site chosen by T-Mobile to construct their antenna, the Court found their reasoning inadequate and overturned it.
The opinion written by Judge Consuelo Maria Callahan can be read here.
“The rule that comes out of the case really is procedural but it’s important in that it’s not only the carrier’s obligation to review alternatives, but it’s the obligation of the jurisdiction if they are not happy with the site chosen,” said Jystad. “That analysis needs to be credible, relevant and supported by the facts.”
“The locality’s burden to show viable unexplored alternatives is not satisfied by merely proposing new locations. It must also provide credible and informed analysis demonstrating the alternative is both available and technically feasible,” as stated in a California Wireless Association press release.
Jonathan Kramer, a Telecommunications attorney in California who has served as a wireless advisor to hundreds of local governments around county for 17 years, furthered the sentiments that this decision is crucial to municipalities.
“Practically, what this decision means on the local government side is that our duty to collect more information and probe for more alternatives becomes that much more important,” said Kramer.
Kramer stated that the fact that the decision was made by the Ninth Circuit Court creates an even greater significance to California jurisdictions.
“Although this was a Washington decision, it was more importantly a Ninth Circuit decision that gives local governments good guidance now on the local level and relays that the expectations from the Court have gone up,” said Kramer.
Andrew Carico can be reached at acarico@publicceo.com