Indus. Commc'n & Elecs., Inc. v. Town of Alton

Industrial Communications and Electronics, Inc. et al.

v.Town of Alton, David Slade, and Marilyn Slade

Civil No. 07-cv-082-JL

Opinion No. 2012 DNH 168

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Dated: September 21, 2012

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

This is a challenge to the Town of Alton's decision, in December 2006, to deny the plaintiffs the variance necessary to construct a 120-foot cell tower there. The plaintiffs, who are Industrial Communications and Electronics, Inc. ("ICE"), RCC Atlantic, Inc., d/b/a Unicel ("Unicel") and U.S.C.O.C. of New Hampshire RSA #2, Inc., d/b/a U.S. Cellular ("U.S. Cellular"), claim that this decision effectively prohibits the provision of personal wireless services in violation of § 704(a) of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c)(7)(B)(i)(II). This court has subject-matter jurisdiction under 28 U.S.C. § 1331 (federal question).

The plaintiffs commenced this action in March 2007. About four months later, David and Marilyn Slade, who own property abutting the site of the proposed tower, were granted leave to intervene in the case. See Fed. R. Civ. P. 24. While the Slades' motion to intervene asserted that their "claims/defensesshare commonality with the main action," they never filed a complaint, answer, or other pleading setting forth any claims or defenses, even though they were represented by counsel at all times. In fact, they filed nothing of substance in the case until late August 2009, when they purported to "oppose the tentative settlement" between the plaintiffs and the Town which, at that point, had been recently reported to the court. Nor, so far as the record indicates, did the Slades engage in discovery, designate experts, or otherwise participate in the litigation.

Eventually, in March 2010, the plaintiffs and the Town filed an agreement for judgment embodying a settlement of the plaintiffs' claims, under which, inter alia, a variance would be allowed for a tower 100 feet, as opposed to 120 feet, high. The Slades objected to the entry of judgment, arguing that, despite the settlement between the plaintiffs and the Town, the Slades "retain[ed] the right to press their claims that the proposed telecommunications tower violates local zoning ordinances and that the ZBA's decision does not contravene the" TCA. In rejecting this argument, the court ruled that, among other things, the Slades had never previously made any such claims (again, they had never filed any pleading) and "[t]his unexplained delay is reason enough to conclude that the Slades cannot now start pursuing a claim that Alton's decision todisallow the proposed tower complied with the TCA." Indus. Commc'ns & Elecs. v. Town of Alton, 710 F. Supp. 2d 189, 193 (D.N.H. 2010). So the court approved the agreement for judgment, with one modification, and directed the Clerk to close the case.

The Slades, however, appealed this decision to the court of appeals, which vacated the judgment and remanded for further proceedings. Indus. Commc'ns & Elecs., Inc. v. Town of Alton, 646 F.3d 76 (1st Cir. 2011). The court of appeals ruled that "the Slades are entitled to resist the entry of a decree that terminates their protectable rights unless a violation of the [TCA] is proven," observing that this court "ha[d] not yet so found" because "it deemed itself no longer entitled to decide that question because the original defendant," i.e., the Town, "no longer chooses to defend the [denial of the] variance." Id. at 80. "But the Slades are prepared to do so," the court of appeals observed. Id. The court of appeals did not address this court's ruling that, because the Slades had not announced that they were "prepared to do so"--or taken any action in the case at all--until nearly three years after they had intervened, they had waived any argument that the Town's denial of the variance did not violate the TCA. See Indus. Commc'ns & Elecs., 2010 DNH 081, 4-6 (discussing Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29 (1986)).

In any event, following remand, the court conducted a bench trial on the plaintiffs' claim over the course of three days in November 2011. Before trial, the plaintiffs and the Slades each submitted a trial memorandum and a set of proposed findings and rulings, see L.R. 16.2(b)(2), and jointly filed a timeline and statement of agreed-upon facts as directed by the court, see Order of Sept. 28, 2011. The parties agreed to submit the direct testimony of their witnesses by affidavit, and to produce the affiants for cross-examination at trial.¹ Id. They further agreed that the records of the proceedings before Town authorities on the plaintiffs' applications for the variance and related relief, which were on file with the court--and spanned nearly 2,300 pages--would be part of the record at trial.² Id.

Based on these materials, the court makes the following findings of fact and rulings of law, see Fed. R. Civ. P. 52(a), which result in the entry of judgment for the plaintiffs on their claim that the Town's denial of their application for a variance amounts to an effective prohibition on the provision of wireless services in violation of the TCA. The plaintiffs have shown, by a preponderance of the evidence, that both Unicel and U.S. Cellular have significant coverage gaps in the area and that, despite their thorough investigation of viable alternatives, the proposed tower is the only feasible way to close those gaps. By and large, the Slades have failed to come forward with any evidence contesting the existence of the gaps or the feasibility of any alternative plan, arguing instead that (1) the fact that an entity controlled by another wireless carrier, Verizon, acquired Unicel in August 2008 (several months after the permitting decision at issue here) means that Unicel cannot show a coverage gap without accounting for Verizon's coverage in the area, and (2) the plaintiffs' failures to investigate constructing two new towers, as well as a third set of new antennas on an existing tower, as an alternative to the single tower they proposed, and to propose a tower lower than 120 feet, are fatal to their effective prohibition claim.

As more fully explained below, the court rejects these arguments. First, they rely largely on proffered expert opinion testimony that the Slades did not disclose until the week before trial and, as a result, is inadmissible. Second, the mere fact that Verizon acquired control of Unicel, even if Verizon did so in order to get control of Unicel's network, does not mean that the two networks should be treated as one for purposes of the substantial gap analysis, and the Slades adduced no other admissible evidence on this point. Third, there is no credible evidence (properly disclosed or otherwise) that the proposed three-tower solution would fill the coverage gaps, and the significantly greater visual impacts and financial costs of such a solution mean that it was never a feasible alternative in any event--and readily explain the plaintiffs' claimed "failure" to investigate such a plan. Fourth, and finally, the evidence overwhelmingly shows that lowering the tower height is also not a feasible alternative such that the plaintiffs' "failure" to offer that to the Town during its review of their variance applications would defeat their effective prohibition claim.

Findings of Fact

Unicel and U.S. Cellular coverage gaps in Alton

1. In 2004, plaintiffs Unicel and U.S. Cellular, holding federal licenses to provide personal wireless services in areasincluding the Town, determined that they had gaps in their wireless networks there. In Belknap County, where Alton is located, U.S. Cellular holds a federal license to provide personal wireless services in the 800 megahertz or "cellular" band, while Unicel holds a federal license to provide those services in the higher-frequency "PCS" band. Because signals at the higher frequency do not propagate as well as those at the lower frequency, PCS networks generally require a greater number of antenna sites to serve a given area than cellular networks.

2. Unicel engaged plaintiff ICE, a company that deploys infrastructure for wireless networks, to locate sites in the Town where Unicel could potentially locate antennas to close those gaps. ICE assigned this task to Kevin Delaney, its regulatory and compliance manager. For its part, U.S. Cellular retained both Kenneth Kozyra and Daniel Goulet, who work as consultants to wireless companies, to assist it in closing, in particular, one of the same gaps in the Town.

3. That coverage gap is located largely within an area surrounding the southern tip of Alton Bay, which is itself the southern tip of Lake Winnipesaukee, and located just to the northwest of the town of Alton proper. This area includes portions of Routes 11 and 28A, which run from the town proper, past the tip of Alton Bay, and alongside the eastern and westernshores of the bay, respectively. The area also includes a portion of Route 28, which, beginning just to the southeast of the town proper, runs to the east of, and at a higher elevation than, Route 28A. Route 28 continues on the path for roughly three miles until it intersects with Route 28A again at a point about one mile east of Alton Bay, then heads in a northeasterly direction for several miles before reaching the town line between Alton and Wolfeboro.

5. U.S. Cellular's gaps in the vicinity of Alton Bay included: a small area along the eastern edge of Route 11, just south of the tip of the bay; several stretches of Route 28A between its intersections with Route 11 and Route 28; and nearly all of Route 28A as it runs parallel to Route 28 along that same stretch. Unicel also had gaps in its coverage in the vicinity of Alton Bay, including, inter alia, portions of Routes 11, 28, 28A, and 140 (which intersects with Route 11 south of Alton Bay).

Plaintiffs' search for wireless antenna locations

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