Category: Legal

In T-Mobile South LLC v. City of Margate (Florida) decided on April 4, 2011 (SD FL Case No. 10–cv–60029), District Judge Alan Gold discussed the topic of substantial evidence in several interesting lights.

d. “Substantial Evidence”Looking beyond the text of the written Resolution to the transcript of the December 9 Hearing, T–Mobile argues that the City Commissioners’ ultimate decision denying its Application was not supported by “substantial evidence” as required by 47 U.S.C. § 332(c)(7)(B)(iii). T–Mobile asserts that the only opposition voiced against its Application was “purely generalized objection, with no specific evidence or support” and “unqualified, unscientific opinion of the City Commissioners and lay members of the public.” [ECF No. 24, p. 13]. T–Mobile concludes that such generalized opposition may not qualify as “substantial evidence” under the TCA.

*10 The City responds to this argument with two short paragraphs in which it outlines the definition of “substantial evidence” and notes that T–Mobile bears the initial burden of proof on this issue. [ECF No. 33, p. 8]. This response raises no disputes of material fact and offers no reasons why the Commissioners denied the Application, much less any explanation as to why those justifications for denial should qualify as “substantial evidence” under the TCA. As T–Mobile notes, the City also incorrectly argues that T–Mobile must present “substantial evidence” whereas the TCA actually requires that relevant State or local governmental denial decision be supported by substantial evidence. 47 U.S.C. § 332(7)(B)(iii).

Although I could hold in T–Mobile’s favor alone on the basis of the City’s inadequate response on this point, I am also obligated to consider the record in its entirety when reviewing a dispute governed by § 332(c)(7)(B)(iii). Thus, I look once more to the transcript from the December 9 Hearing because the City’s official written decision provides no reason for the denial. As reflected in that transcript, the City Commissioners’ votes to deny the Application were not accompanied by any contemporaneous comments from the Commissioners offering reasons for their votes. [ECF No. 26–1, pp. 86:11–87:11]. Elsewhere in the transcript are certain complaints voiced by City residents against T–Mobile’s Application. Some residents indicated that they opposed the plan because they preferred that T–Mobile place the new tower in its neighboring town of Coral Springs.14 But as noted above, the City concedes that a significant coverage gap exists in the City of Margate, and it advances no arguments that the heart of that gap was in Coral Springs, or a neighboring town, or any place else other than Margate. Likewise, the City Attorney responded to these comments by informing the residents that Margate’s ordinances prohibit using residents’ preferences to place the tower in another town as a basis to deny such an application.

Another city resident cited health concerns such as radiation as a reason for his opposition to the Application. [ECF No. 26–1, pp. 64:24–65:22]. Again, the City Attorney responded that the “federal courts have specifically ruled that radiation cannot be the basis for turning this down.” [Id. at 66:2–4].16 It does not appear that the City Commissioners were concerned with the aesthetics of the proposed WCF. When T–Mobile representatives offered to show pictures or designs of their proposed “flag pole” design, at least one City Commissioner responded: “We don’t need to see it. We know what it looks like.” [ECF No. 26–1, p. 24–27]. Likewise, when the City Attorney asked the City’s independent consultant to comment on the proposed idea, a City Commissioner stated “No, I don’t want to hear anymore.” [ECF No. 26–1, pp. 71:25–72:1]. Several other aspects of the December 9 Hearing transcript provide the distinct impression that the City Commissioners denied T–Mobile’s application in order to appease a crowd of local residents who had gathered to attend the hearing and oppose the Application.

*11 Eleventh Circuit case law provides certain guidelines about the types of reasons a State or local government may rely on in order to deny an application under the TCA. For example, a “blanket aesthetic objection does not constitute substantial evidence under § 332.” See Michael Linet, Inc., 408 F.3d at 761. But aesthetic objections “coupled with evidence of an adverse impact on property values or safety concerns can constitute substantial evidence.” Id. Similarly, denial may be based on testimony of local realtors that the proposed cell tower would adversely impact home resale values or if the site may have a negative effect on nearby air traffic or to the safety of school children. Id. at 760; City of Huntsville, 295 F.3d at 1208–09. But “generalized objections with no articulated reasons” and “rationalizations constructed after the fact” do not constitute “sufficient evidence” under the TCA. Preferred Sites, 296 F.3d at 1219–20 & n. 9.

This case law provides no support for local governments that deny a provider’s Application on the basis of health effects or a preference to place the relevant cell tower in a neighboring town. Construing this evidence in the light most favorable to the City, I can only conclude that there are no disputes of material fact that the City did not provide sufficient evidence for its denial of T–Mobile’s Application, and a reasonable mind could not accept the evidence in the record as adequate to support the City’s denial.

(Emphasis added.) T-Mobile S. LLC v. City of Margate, No. 10–cv–60029, 2011 WL 1303898, 9–10–11, Slip Copy (S.D. Fla. Apr. 4, 2011). 

“YAT-MC” = “Yet another T-Mobile Case”