Cellular Wireless Antennas: Federal Appeals Court Case Law - Citations and Excerpts

While Section 704 of the Telecommunications Act of 1996 severly restricts the powers of local
municipalities in restricting the siting of wireless antennas, the following Federal Appeals
Court decisions have interpreted this law very liberally, in favor of local control.

• Sprint Spectrum L.P. v. Willoth
  176 F.3d 360 (2nd Cir. 1999)

• "We do not read the [Telecommunications Act of 1996] to allow the goals of increased competition and
  rapid deployment of new technology to trump all other important considerations, including the preservation
  of the autonomy of states and municipalities."

  "A local government may also reject an application that seeks permission to construct more towers than
  the minimum required to provide wireless telephone services in a given area. A denial of such a request
  is not a prohibition of personal wireless services as long as fewer towers would provide users in the
  given area with some ability to reach a cell site."

  "Furthermore, once an area is sufficiently serviced by a wireless service provider, the right to deny
  applications becomes broader."

  "We hold only that the Act’s ban on prohibiting personal wireless services precludes denying an
  application for a facility that is the least intrusive means for closing a significant gap in a
  remote user’s ability to reach a cell site that provides access to land-lines."
  

• APT Pittsburgh Partnership v. Penn Township
  196 F.3d 469 (3rd Cir. 1999)

• ". . . [A]n unsuccessful provider applicant must show . . . that its facility will fill an existing
  significant gap in the ability of remote users to access the national telephone network. . . . Not
  all gaps in a particular provider’s service will involve a gap in the service available to remote
  users. The provider’s showing on this issue will thus have to include evidence that the area the new
  facility will serve is not already served by another provider."

• AT&T Wireless PCS v. City Council of City of Virginia Beach
  155 F.3d 431 (4th Cir. 1998)

• "The [Telecommunications] Act explicitly contemplates that some discrimination ‘among providers of
  functionally equivalent services’ is allowed. Any discrimination need only be reasonable."

  "It is not only proper but even expected that a legislature and its members will consider the views
  of their constituents to be particularly compelling forms of evidence, in zoning as in all other
  legislative matters. These views, if widely shared, will often trump those of bureaucrats or experts
  in the minds of reasonable legislators."

• Cellular Telephone Co. v. Zoning Board of Borough of Ho-Ho-Kus
  197 F.3d 64 (3rd Cir. 1999)

• Local governments can consider "quality of existing wireless service" in rejecting an application.