By Jordan Crews

Today, in T-Mobile Northeast LLC v. Loudon County Board of Supervisors, the Fourth Circuit affirmed the district court’s grant of summary judgment for T-Mobile.  The Court held that the Board, in denying T-Mobile’s application to build a tower, violated the Telecommunications Act of 1996 by impermissibly relying on the environmental effects of radio frequency.

In October 2011, the Board denied T-Mobile’s application for a permit to build a telecommunications tower in Loudon County.  T-Mobile challenged the Board’s decision.  The district court granted summary judgment for T-Mobile, concluding that the Board improperly denied the application because the Board relied on the environmental effects of radio frequency–a statutorily prohibited basis for regulation.

The Telecommunications Act of 1996 was enacted “to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunication consumers and encourage the rapid deployment of new telecommunications technologies.”  The Act provides that, in regulating the siting and construction of wireless facilities, a state or local government:

(1) may not “unreasonably discriminate among providers”; (2) may not effectively prohibit “the provision of personal wireless services”; (3) must act on a request to place, construct, or modify such facilities “within a reasonable period of time”; (4) must render its decisions “in writing” and with the support of “substantial evidence contained in a written record”; and (5) may not regulate the placement, construction or modification of such facilities “on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC’s] regulations concerning such emissions.”

On appeal, the board argued that the district court erred in ordering it to grant T-Mobile’s permit on the basis that the Board illegally relied on the environmental effects of radio frequency transmissions.  The Board acknowledged that this reason was illegal, but opined that it was given by only one Board member and therefore was not binding on the Board as a whole.  The Board argued further that even if this reason were binding on it, its decision to deny the application was also based on valid reasons that were sufficient to deny the application.  The Court addressed, and then discarded, both of these arguments.

First, the Court, when looking to the record, found that the health concerns were prevalent throughout the several hearings; the environmental concerns were not isolated to one Board member, as the Board suggested.  The Court thus concluded that it was “indisputable that the Board as a whole regulated on the basis of radio frequency emissions, a prohibited practice under the Act.”

Second, the Court held that, even if the Board relied on valid reasons to support its decision, this did not immunize its violation of the statutory limitation.  Quoting the Supreme Court, the Court stated that this statutory limitation is a “specific limitation on the traditional authority of state and local governments to regulate the placement, construction, and modification of wireless facilities.”  Thus, even if the Board gave valid reasons for its decision, which by themselves would have been sufficient, this did not immunize it from its statutory violation.

The district court’s grant of summary judgment for T-Mobile was affirmed.