By Gregory D. Meese and Edward W. Purcell
Ever since the erection of the first cell towers in the 1980s, the public has asked the wireless industry why antennas could not be placed on utility poles, rather than the taller, more obtrusive monopoles. Technology has finally answered that request and the Federal Communications Commission (FCC) has enacted regulations to encourage the placement of antennas on poles in the public rights-of-way. Many communities have embraced the deployment of these facilities which will form the backbone of new 5G services. Others have taken the opposite approach. Two recently decided cases shed light on these FCC regulations, and provide a summary of the new rules of the road for the siting of Small Wireless Facilities (SWF) in the public rights-of-way.
In ExteNet Systems v. The City of East Orange, federal court Judge William J. Martini, reviewed the federal Telecommunications Act (TCA) requirements that state and local governments must “act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed,” and that any “denial must be in writing and supported by substantial evidence contained in a written record.” Docket No. 19-21291, 2020 WL 7238154 (D.N.J. Dec. 9, 2020), see also 47 U.S.C. §332(c)(7)(B)(ii)&(iii). In another case brought by ExteNet, federal court Judge Madeline Cox Arleo found that the Township of North Bergen improperly denied SWF siting applications based on unsubstantiated health concerns and unsupported aesthetic issues, contrary to the requirements of the TCA. ExteNet Systems v. Township of North Bergen, Docket No. No. 20-15098 (MCA-JRA) (D.N.J. May 19, 2022)
ExteNet is a neutral host infrastructure provider for FCC-licensed wireless communication carriers. In other words, ExteNet builds, owns and operates facilities it leases to companies that provide wireless services. In East Orange, ExteNet filed two sets of applications for SWFs on existing, albeit modified, utility poles, triggering a 60-day shot clock under the applicable FCC rules. See In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv. (“2018 Third Report and Order”), 33 F.C.C. Rcd. 9088, ¶104 (2018), see also 47 C.F.R. §1.6003. The City Council voted to deny the applications, but did not issue a written denial. Relying upon T-Mobile Ne. v. City of Wilmington, De., 913 F.3d 311, 323 (3d Cir. 2019), the court held that “a denial must be in writing to be a final action, the issuance of [which] is the government ‘act’ ruled by the shot clock.” As a result, the City’s vote to deny was not an official action because no written reasons were adopted. This holding led to a finding that the first set of applications were ripe for review because the City had missed the 60-day shot clock and that same represented a “failure to act within a reasonable timeframe” as required by 47 U.S.C. §332(c)(7)(B)(v). With respect to the second set of applications, the court held that same was not ripe for challenge as of the date of the filing of the complaint because the City had some additional time to “act.”
The City’s failure to act on the first set of applications was also found to be a “presumptive prohibition of service” pursuant to 47 U.S.C. §332(c)(7)(3)(ii). The court held that “[t]he FCC has declared that a state or local government’s failure to act within “the Small Wireless Facility shot clock … function[s] not only as a Section 332(c)(7)(B)(v) failure to act but also amount[s] to a presumptive prohibition on the provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II).”
In North Bergen, ExteNet made an application to install 40 SWFs that were mostly “strand mounted,” i.e., the antennas mounted on a line extending between existing poles. The FCC’s radio frequency (RF) exposure guidelines require the posting of signs to alert utility workers where applicable RF exposure levels may be exceeded near antennas. Office of Engineering and Technology Bulletin 65, at 52-55. ExteNet had submitted a report that demonstrated that RF exposure would be well below the FCC limits at ground level, but that some areas very near the antennas would experience RF emissions exceeding FCC “general population” and “occupational” limits. With the appropriate signage in place, the report concluded that the facilities would be in compliance with federal standards.
Notwithstanding the demonstration of compliance with the FCC’s standards, the Township denied the application “for four reasons: (1) ‘the antennas pose a danger to the public, regardless of whether the radio frequency emitted from the antennas is within that required by FCC’; (2) the Warning Signs ‘will, at minimum, cause public alarm and will negatively impact property values’; (3) Plaintiff did not submit copies of its agreements with the owners of the relevant utility poles permitting the installations; and (4) the appearance of certain equipment to be utilized ‘d[id] not match or conform to existing’ equipment.” Seven months after its initial denial letter, the Township transmitted a supplemental statement of reasons for denial: “(1) Plaintiff did not provide a ‘propagation plot’; (2) the Application failed to demonstrate that the RF emissions from the proposed antennas would comply with FCC regulations; and (3) no Right of Way Occupancy Agreement had been executed.”
Judge Arleo noted that under the TCA, a municipality’s denial of an application must be “supported by substantial evidence contained in a written record,” 47 U.S.C. §332(c)(7)(B)(iii), and its “statement of reasoning must be provided ‘essentially contemporaneously’ with a written notice of denial.” Citing T-Mobile S. v. City of Roswell, 574 U.S. 293, 307-08 (2015). Judge Arleo also recited the TCA’s prohibition against a municipality considering the environmental effects of a SWF in making its siting decision:
Among other substantive restrictions in the TCA, “[n]o … local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of [RF] emissions to the extent that such facilities comply with [FCC] regulations concerning such emissions.” 47 U.S.C. §332(c)(7)(B)(iv). “Environmental effects” include the effect of RF emissions on human health. [citations omitted] …. Thus, so long as a proposed facility would comply with FCC regulations, a town may not deny an application based on a perceived threat to human safety arising from RF emissions.
In applying these rules, Judge Arleo found that the Township improperly based its denial on unsubstantiated environmental concerns because the Township did not raise any issue with respect to FCC compliance, but rather stated that its concerns existed “regardless of whether the [RF] emitted from the antennas is within that required by the FCC.” The judge also held that concerns related to FCC mandated signage were also impermissible on this basis.
Significantly, Judge Arleo observed that this statutory violation was enough for the plaintiff to prevail, even if there were other legitimate reasons for the denial. “Courts have held, however, that the fact that [a locality] relied on valid reasons to support its decision does not immunize its violation of a statutory limitation” and that “the fact that [a locality] gave valid reasons for its decision, which by themselves would be sufficient is irrelevant.” Loudoun County Board of Supervisors, 748 F.3d at 195; see also Town of Ramapo, 701 F. Supp. 2d at 460 (“[A]ny decision actually based on environmental effects is a violation, whether other legitimate reasons factored into the decision or not.”)
Irrespective of the impermissible environmental concerns, the court held that the Township’s aesthetics rationale was impermissible because it could not meet the TCA’s “substantial evidence” requirement. 47 U.S.C. §332(c)(7)(B)(iii). With respect to aesthetics, “[a] few generalized expressions of concern with ‘aesthetics’ cannot serve as substantial evidence.” New Cingular Wireless PCS v. Zoning Board of Adjustment of Borough of N. Haledon, 469 F. Supp. 3d 262, 276 (D.N.J. 2020). Judge Arleo found that the defendants’ denial did not detail how the proposed equipment “failed to conform with existing equipment or otherwise violated the Township’s standing Regulations.” “Even if the Township had not cited safety concerns as a basis for denial, its bare assertion of nonconformance with existing equipment, without more, fails to clear this modest hurdle.”
The court also held that it could not consider any of the reasons given in the Township’s supplemental statement of reasons because they were not provided “essentially contemporaneously” with the Township’s written denial. Thus, the additional bases for denial, provided seven months after the initial denial, were not considered by the court.
With respect to a remedy, Judge Arleo noted that the TCA does not contain an express remedy for violations of Section 332(c)(7), but citing to Judge Martini’s decision in East Orange, held that “courts have concluded that the most appropriate remedy is typically ‘the award of injunctive relief in the form of an order to issue all necessary authorizations.’” This was found to be the appropriate remedy here because “the clear evidence that unlawful considerations regarding the safety of RF emissions infected the Township’s decision-making process.”
These decisions provide important guidelines for municipalities reviewing SWF siting requests. First, the applications must be acted upon within a reasonable period of time, consistent with the FCC’s shot clocks. Second, the decision must be in writing and issued contemporaneously with the action. Third, concerns regarding environmental effects, including health effects, even if “packaged” as apprehension regarding FCC required signage, cannot be a basis for a denial. Moreover, even raising environmental effects as a reason for denial will taint any other valid basis for same. Fourth, blanket statements regarding aesthetics do not meet the “substantial evidence” standard for denial. Modern utility poles are covered with various equipment cabinets and boxes, so any denial based on aesthetics would be rare given the small size of SWFs. Merely citing “aesthetics” without explaining how a SWF is different and more impactful than other existing infrastructure, won’t be sufficient.
The East Orange and North Bergen decisions provide an initial summary of the “rules of the road” laid out by the TCA and FCC when it comes to reviewing and acting on SWF siting applications within public rights-of-way. These decisions will no doubt be expanded upon as more and more SWFs are proposed in the public rights-of-way to meet the burgeoning demand for wireless services.
Gregory D. Meese is a principal and Edward W. Purcell an associate at Price Meese Shulman & D’Arminio, P.C., in Woodcliff Lake. They represented ExteNet Systems, Inc. in the East Orange and North Bergen litigations.