INTRODUCTION
This action was commenced by the predecessor to plaintiff Cellco Partnership d/b/a Verizon Wireless ("VzW"), Bell Atlantic Mobile of Massachusetts Corporation Ltd., A Bermuda Corporation, d/b/a Verizon Wireless, on September 23, 2014, on appeal from a decision of the City Council of Peabody ("the Council") denying VzW's special permit application to construct a wireless communication facility ("the Proposed Facility") at 161 Lynn Street, Peabody, Massachusetts. Four and one-half years, one summary judgment denial and some six unsuccessfully proposed alternatives to the Proposed Facility later, VzW filed the instant Plaintiff's Renewed Motion For Summary Judgment ("the Renewed Motion"), arguing that the denial of its application effectively prohibits VzW from providing wireless services in contravention of the federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(i)(II) ("the TCA"), and is therefore a violation of G.L. c. 40A, § 17. This court agrees. For the reasons set forth below, the Renewed Motion is allowed.
PROCEDURAL HISTORY
In its complaint, VzW asserted four causes of action: Count I alleged a violation of the TCA's requirement that local boards support their denials of applications with substantial evidence in a written record, 47 U.S.C. § 332(c)(7)(B)(iii); Count II alleged a violation of the TCA's requirement that the denial of an application not have the effect of prohibiting personal wireless services, 47 U.S.C. § 332(c)(7)(B)(i)(II); Count III alleged a violation of G.L. c. 40A, § 17 because the denial of VzW's application was based on legally untenable grounds that were arbitrary and capricious; and Count IV alleged a violation of G.L. c. 40A, § 9 because of undue delay in holding the hearing on VzW's application.
At the first case management conference held in this matter on December 4, 2014, counsel for the parties reported that they were in discussion about the selection of an alternate site for the wireless facility and requested that this matter be stayed until March 9, 2015. At the request of the parties, the matter was thereafter stayed until June 9, 2015. It was then reported to the court (Long, J.) that the alternative solution they had been pursuing, using the sites of utility poles owned by the municipal light plant, Peabody Municipal Light Plant ("PMLP"), was not feasible because of objections by PMLP. The parties reported that they were, therefore, working on a second alternative solution. As a result, the court (Long, J.) continued the matter to December 7, 2015, later rescheduled to December 15, 2015.
At a status conference held on December 15, 2015, the parties reported that they had reached an agreement in principle to relocate the Proposed Facility to city-owned property. The parties reported that they did not foresee any difficulties obtaining the necessary approvals and expected the matter to be fully resolved within 45 days. A status conference was then scheduled for February 11, 2016, subsequently rescheduled to March 9, 2016. At that time, the parties reported that approval of the Council was required with respect to several facets of the new proposal. A status conference was then scheduled for May 3, 2016. On that date, the parties reported that they were awaiting a hearing by the Council then scheduled for May 12, 2016. A status conference was then scheduled for May 19, 2016, at which time the parties reported that the Council would not approve the alternative location and counsel for VzW indicated its intent to file a motion for summary judgment. As a result, the court (Long, J.) lifted its stay of these proceedings and indicated that it would await the filing of VzW's motion.
On October 13, 2016, the court (Long, J.) held a case management conference in Cellco Partnership d/b/a Verizon Wireless v. City of Peabody, Docket No. 16 MISC 000478, which is a separate appeal by VzW from the denial of its application for a special permit to erect a facility on the city-owned property. The court (Long, J.) denied a motion to consolidate that action with this one, but indicated that the court would coordinate the two cases. At that time, the parties expressed their varying views on the feasibility of a distributed antennae system ("DAS"). The filing of VzW's summary judgment motion was scheduled for November 4, 2016.
After briefing and hearing, this court (Long, J.) issued an order on September 8, 2017 denying VzW's motion for summary judgment. The court dismissed without prejudice Counts 1 and 2, asserting claims under the TCA, on the grounds that the court lacked subject matter jurisdiction over those claims. The court did, however, consider the TCA claims in the context of the G.L. c. 40A counts, noting that a denial of the application by the Council that violated the TCA would be unlawful, even if otherwise permissible under G.L. c. 40A. In denying VzW's motion, the court found (1) that there were genuine issues of material fact as to whether the Proposed Facility was injurious to the neighborhood and whether there was an alternative to the Proposed Facility in the form of a DAS, (2) that the Council had issued its decision in writing with substantial evidence to support its determination, and (3) that, while it was undisputed that there was a gap in VzW's coverage, there was a dispute of material fact as to whether DAS was an alternative to the Proposed Facility.
At a status conference held on February 12, 2018, the parties reported that they were discussing an alternative antennae system that, if implemented, would likely resolve the issues presented by the two pending cases. At a subsequent status conference on July 17, 2018, the parties reported that VzW had presented a new proposal consisting of 14 small cell towers throughout the City of Peabody, which the Council was then considering. The proposal would also require the approval of PMLP. At status conferences held on April 19, 2018 and August 30, 2018 the parties reported on their progress. At a status conference on September 17, 2018, the parties reported that the Council had rejected the most recent alternative. At that time, VzW informed the court (Long, J.) that it had now explored all feasible alternatives to the Proposed Facility and that it intended to renew its motion for summary judgment.
VzW filed the Renewed Motion on November 9, 2018. Briefing was complete by December 20, 2019. This case was reassigned to the undersigned on January 28, 2019 and a hearing on the Renewed Motion was held on March 12, 2019.
UNDISPUTED FACTS
The statement of facts set forth in this court's (Long, J.) Memorandum And Order On The Plaintiff's Motion For Summary Judgment dated September 8, 2017 ("Order") is incorporated herein.
The following additional facts established in the record and pertinent to the Renewed Motion are undisputed or are deemed admitted:
1. Soon after the Council denied VzW's application for a special permit to construct the Proposed Facility, [Note 1] VzW proposed that it would instead install a limited number of small cell antennae on poles owned by PMLP, either by itself or jointly with VzW's wireless affiliate. Land Court Rule 4 Supplemental Statement Of Uncontested Facts In Support Of Plaintiff's Renewed Motion For Summary Judgment ("PSOF") ¶ 82. [Note 2]
2. PMLP rejected that proposal. PSOF ¶ 83.
3. Defendants City of Peabody, Massachusetts, the City Council of the City of Peabody, Massachusetts, and the individual members of the City Council of Peabody, Massachusetts (collectively, "Peabody") [Note 3] then offered to have VzW construct its facility on property owned by Peabody at 38 Coolidge Avenue. PSOF ¶ 84.
4. Peabody issued a Request For Proposals in November, 2015, entitled "Lease of City Owned Site For Wireless Communication Facility," requesting proposals for the construction of a cell tower at 38 Coolidge Avenue ("the Coolidge Ave. RFP"). PSOF ¶ 89.
5. VzW submitted a proposal for the Coolidge Ave. RFP prior to the submission deadline of December 7, 2015. PSOF ¶ 90.
6. Peabody issued an undated Statement on Decision of Award, whereby Mayor Edward A. Bettencourt, Jr. awarded the Coolidge Ave. RFP to VzW based on VzW's proposal. PSOF ¶ 92.
7. On March 23, 2016, VzW filed a special permit application with Peabody for the proposal referenced in the Coolidge Ave. RFP. PSOF ¶ 94.
8. That special permit application was scheduled for hearing on May 12, and subsequently continued to May 26, June 14, and July 14, 2016. PSOF ¶¶ 95-6.
9. Peabody denied the special permit application on July 14, 2016. PSOF ¶ 97.
10. As a result, VzW requested that the instant action be reactivated. PSOF ¶ 99.
11. After this action was reactivated, Peabody conceived another alternative to the Proposed Facility involving what Peabody described as PMLP's plan to construct a municipality-wide DAS covering all of Peabody. PSOF ¶ 102.
12. The DAS would deploy a number of smaller canister-type antennae throughout the city, located on poles that also hosted electric wires and fiber optic cables, that would, according to Peabody, obviate the need for the Proposed Facility. PSOF ¶ 102.
13. At the May 2, 2017 hearing on VzW's original motion for summary judgment, Peabody submitted an affidavit outlining the progress being made by PMLP in awarding a bid for the construction and management of the proposed DAS, which Peabody claimed was a viable alternative to the Proposed Facility, thus defeating VzW's claim of effective prohibition under the TCA. PSOF ¶ 104.
14. By May, 2018, the DAS had proved to be unworkable. PSOF ¶ 107.
15. Having conceded that a DAS was not going to be a viable alternative, Peabody invited VzW to reconsider its earlier proposal to install small cells on a limited number of PMLP poles as an alternative to the Proposed Facility. PSOF ¶ 108.
16. In discussions with PMLP and Peabody, VzW proposed that it could meet its network objectives with small cells mounted on approximately 13-14 PMLP poles. PSOF ¶ 109.
17. VzW and PMLP could not come to terms on that proposal. See PSOF ¶¶ 110-111, DPSOF at 2.
18. VzW then proposed to Peabody that VzW would install utility poles of its own in the public right of way to support its small cells. PSOF ¶ 112.
19. In furtherance of that proposal, on or about May 10, 2018, VzW filed petitions for Grants of Location ("GOL") with Peabody in accordance with G.L. c. 166, § 22. PSOF ¶ 113.
20. At a public hearing on the GOL petitions on June 28, 2018, Peabody asked VzW to relocate seven of the fourteen small cells and poles to locations in the immediate vicinity of the initially proposed locations. PSOF ¶ 114.
21. VzW complied with Peabody's requests, and submitted revised GOL petitions for the seven relocated poles on or about August 1, 2018. PSOF ¶ 115.
22. Peabody held a hearing on the GOL petitions on August 23, 2018 and continued the hearing to September 13, 2018, at which time Peabody denied all fourteen GOL petitions. PSOF ¶¶ 116-7.
23. As a basis for the denials, Peabody stated that a new alternative was imminent as the result of an FCC regulation anticipated later in September, which would, according to Peabody, require PMLP to make its poles available to VzW on terms and conditions that the FCC deemed presumptively reasonable. PSOF ¶ 118.
24. The referenced FCC regulation 18-133 was passed in September 26, 2018 and is the subject of legal challenges by municipal and industry stakeholders. PSOF ¶ 120.
25. PMLP has not said that it will abide by the FCC's regulation pending any challenge to the regulation. PSOF ¶ 121.
26. On September 10, 2018, PMLP transmitted to VzW a form of agreement for attachment to PMLP's poles that contained no pricing proposals. PSOF ¶ 123.
27. VzW requested that PMLP provide its price proposal on September 12, September 19, September 27, October 9, October 17, October 24 and October 30, 2018. PSOF ¶ 124.
28. PMLP has failed to offer any proposal on pricing in response to VzW's inquiries. PSOF ¶ 125.
STANDARD OF REVIEW
Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission
together with the affidavits
show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
DISCUSSION
The Renewed Motion presents a single issue: whether Peabody's denial of the special permit at issue here, when considered in the context of the various subsequent alternatives that ultimately failed, effectively prohibits the provision of personal wireless services contrary to the TCA. A brief description of the TCA aids in the analysis.
The TCA was enacted to foster personal wireless service. As described by the Fourth Circuit Court of Appeals,
Congress enacted § 332 to ensure the availability of a nationwide network of wireless service coverage, more specifically, to develop the infrastructure necessary to provide wireless services. Thus, § 332 (1) provides factors that the FCC must consider in managing the spectrum used for wireless services, 47 U.S.C. § 332(a); (2) classifies wireless service providers that provide wireless service to the public for profit as "common carriers" (subjecting them to numerous duties under the FCA), 47 U.S.C. § 332(c)(1)(A); (3) prevents states from regulating "the entry of or the rates charged by" wireless service providers, 47 U.S.C. § 332(c)(3)(A); and (4) limits in certain respects the ability of states and local zoning authorities to regulate the "placement, construction, and modification" of facilities that provide wireless service, 47 U.S.C. § 332(c)(7).
Pinney v. Nokia, Inc., 402 F.3d 430, 457 (4th Cir. 2005) (emphasis added).
With respect to 47 U.S.C. § 332(c)(7), the TCA is "an exercise in cooperative federalism
[that] attempts, subject to five limitations, to preserve state and local authority over the placement and construction of [telecommunications] facilities." Green Mt. Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) quoting Nat'l Tower, LLC v. Plainville Zoning Bd. Of Appeals, 297 F.3d 14, 19 (1st Cir. 2002). Accord Town of Amherst, N.H. v. Omnipoint Communications Enters., 173 F.3d 9, 12 (1st Cir. 1999) ("Amherst"). Those limitations on State and local authorities include a prohibition against unreasonable discrimination among providers, 47 US.C. § 332(c)(7)(B)(i)(I); the requirement that any requests by carriers for authorizations related to their wireless facilities be acted on within a reasonable period of time, 47 U.S.C. § 332(c)(7)(B)(ii); the requirement that decisions by State or local authorities denying such requests be in writing and supported by substantial evidence, 47 U.S.C. § 332(c)(7)(B)(iii); a prohibition against the regulation of wireless facilities by State or local authorities based on environmental effects of radio frequency emission, so long as the facility complies with the Federal Communication Commission's regulations, 47 U.S.C. § 332(c)(7)(B)(iv); and the grant of a right of appeal to any person adversely affected by any act or failure to act by a State or local authority that is inconsistent with these provisions, 47 U.S.C. § 332(c)(7)(B)(v).
Effective Prohibition Of Wireless Services
The limitation at issue here is found at 47 U.S.C. § 332(c)(7)(B)(i)(II). In pertinent part, the statute states:
(7) Preservation of local zoning authority.
(A) General authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of any State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations.
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by a State or local government or instrumentality thereof
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
47 U.S.C. § 332 (c)(7)(B)(i)(II) (emphasis added). This limitation applies "even where a local authority's denial of an individual application pursuant to its own local ordinances is supported by substantial evidence." Green Mt. Realty Corp., 750 F.3d at 38.
"The carrier has the burden of proof to show an effective prohibition has occurred." Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir. 2009) ("Cranston"). That burden has been described as "a heavy one: to show from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time to even try." Amherst, 173 F.3d at 14 (emphasis in original).
As described in Cranston, "[w]hen a carrier claims an individual denial is an effective prohibition, virtually all circuits require courts to (1) find a 'significant gap' in coverage exists in an area and (2) consider whether alternatives to the carrier's proposed solution to that gap mean that there is no effective prohibition." 586 F.3d at 48. Here, Peabody concedes that a significant gap in coverage exists, so the issue for this court is whether there are feasible alternatives to the Proposed Facility.
"The burden is on the carrier to prove it 'investigated thoroughly the possibility of other viable alternatives' before concluding no other feasible plan was available." Cranston, 586 F.3d at 52. However, once that burden has been met, a local zoning authority cannot make unreasonable demands. "Just as carriers must present evidence of their efforts to locate alternative sites, once they have done so there are limits on town zoning boards' ability to insist that carriers keep searching regardless of prior efforts to find locations or costs and resources spent." Cranston, 586 F.3d at 51-52.
In Amherst, the court determined that the carrier, which "did not present any serious alternatives to the town," was not entitled to summary judgment because it had not shown that the local board would inevitably reject an alternative proposal. 173 F.3d at 15-16. And, in Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002), the court stated that "[n]othing in the Town's actions thus far shows an unwillingness to acknowledge a problem
. The record suggests a range of possible solutions, not yet determined to be infeasible." Id. at 635.
In contrast, in Cranston, the city argued that the carrier should be required to go back to a local land owner a fourth time to attempt to negotiate an easement and lease. The Cranston court rejected that suggestion as "pure speculation." 586 F.3d at 53. In Nt'l Tower, LLC, supra, where the carrier tried its application both as a radio tower and as a public utility and was blocked both times, the court stated that "this is exactly the sort of behavior by a board that demonstrates that it would effectively prohibit the provision of gap-covering wireless services." 297 F.3d at 23.
Here, VzW's application for a special permit for the Proposed Facility was denied on September 4, 2014 and VzW's appeal from that decision to this court was filed on September 23, 2014. Shortly thereafter, VzW proposed, as an alternative, the construction of a limited number of small cell antennae installed on poles owned by PMLP. PMLP rejected that proposal. Next, as reported to the court in December, 2014, the parties turned their sights on property owned by Peabody as an alternative to the Proposed Facility. In pursuing that alternative, VzW submitted a response to the Coolidge Ave. RFP prior to the December 7, 2015 submission deadline, was awarded the lease for the alternative site, and then submitted a special permit application to construct its facility on the city-owned site on March 23, 2016. The hearing on that application was continued three times. When the application was heard on July 14, 2016, it was denied.
Thereafter, and leading up to the May 2, 2017 hearing on VzW's motion for summary judgment, Peabody suggested, as yet another alternative, that PMLP planned to construct a DAS covering all of Peabody, which would obviate the need for VzW's Proposed Facility. At the May 2 hearing, Peabody submitted an affidavit outlining the progress of PMLP's construction of the DAS and argued that the proposed DAS was a viable alternative to the Proposed Facility, thereby foreclosing VzW's claim of effective prohibition under 47 U.S.C. § 332(c)(7)(B)(i)(II). This court (Long, J.) concluded that Peabody's evidence regarding the proposed DAS warranted a trial, such that summary judgment was inappropriate on that issue. However, by May, 2018, PMLP's proposed DAS had proved to be unworkable.
Having conceded that a DAS was not going to be a viable alternative, Peabody invited VzW to reconsider its earlier proposal to install small cells on a limited number of PMLP poles as an alternative to the Proposed Facility. In discussions with PMLP and Peabody, VzW proposed that it could meet its network objectives with small cells mounted on approximately 13-14 PMLP poles. VzW and PMLP could not come to terms on this proposal.
VzW then proposed to Peabody that VzW would install utility poles of its own in the public right of way to support its small cells, filed petitions for GOL with Peabody in accordance with G.L. c. 166, § 22, and responded to Peabody's request at a public hearing on those petitions by submitting revised GOL petitions for seven relocated poles. Peabody held a hearing on the GOL petitions on August 23, 2018 and continued the hearing to September 13, 2018, at which time Peabody denied all fourteen GOL petitions. As a basis for the denials, Peabody stated that a new alternative was imminent as the result of an FCC regulation anticipated later in September, which would, according to Peabody, require PMLP to make its poles available to VzW on terms and conditions that the FCC deemed presumptively reasonable.
While the FCC regulation was passed in September 26, 2018, it is the subject of legal challenges by municipal and industry stakeholders. Moreover, PMLP has not said that it will abide by the FCC's regulation pending any challenge to the regulation. While PMLP transmitted to VzW a form of agreement for attachment to PMLP's poles in September, 2018, that form contained no pricing proposals. Despite numerous requests by VzW since then, PMLP has failed to offer any proposal on pricing in response to VzW's inquiries.
Notwithstanding Peabody's arguments to the contrary, [Note 4] on this record, VzW has carried its heavy burden of establishing that it has "investigated thoroughly the possibility of other viable alternatives," Cranston, 586 F.3d at 52, quoting VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 834-835 (7th Cir. 2003); and that "not just this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try." Amherst, 173 F.3d at 14 (emphasis in original). It has established that Peabody's actions have effectively prohibited the provision of personal wireless services.
The Remedy
In its complaint, VzW requests that this court issue an injunction directing Peabody "to issue, without delay, the special permit sought in the Special Permit Application [which is the subject of this appeal], a building permit and any and all other relief that may be required for the Plaintiff's proposed Facility, including without limitation any variance alleged by the City of Peabody to be needed for the Facility, and directing the City of Peabody through its other boards and agencies to grant any further approvals required to construct the facility." The requested relief will be granted. Massachusetts and Peabody law are preempted by the provisions of 47 U.S.C. § 332(c)(7)(B) if they are read and applied in a way that precludes personal wireless service. Amherst, 173 F.3d at 16 ("the strictures of New Hampshire and Amherst law are preempted, under the Supremacy Clause of the Constitution, if they are read and applied so as to effectively preclude personal wireless service."); Am. Towers, LLC v. Town of Shrewsbury, No. 17-10642-FDS, 2018 U.S. Dist. LEXIS 104541 (D. Mass. June 22, 2018) (discussing 47 U.S.C. § 332(c)(7)(B)(i) and (iii), "[t]hose federal provisions preempt state and local laws to the extent they conflict."). Where the record compels the conclusion that Peabody has effectively prohibited the provision of wireless services in violation of the TCA, a broad remedial order is justified. See Nt'l Tower, LLC, 297 F.3d at 25 and n. 7 (upholding district court order to local board "to issue within thirty (30) days of this Order the dimensional and use variances and special permit necessary for the construction of plaintiffs' 170 foot lattice tower and maintenance facility on the locus."). See also Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2nd Cir. 1999) and cases cited ("the majority of district courts that have heard these cases have held that the appropriate remedy is injunctive relief in the form of an order to issue the relevant permits."); Omnipoint Communs. MB Operations, LLC v. Town of Lincoln, 107 F. Supp. 2d 108, 120 (D. Mass. Aug. 2, 2000) (allowing plaintiff's requested relief: "an injunction and order of mandamus annulling the April 20, 1999 decision of the Board of Appeals and directing the Town, through its agents and/or officers, to take all necessary actions to remove any further impediments to Omnipoint's constructing the proposed WCF at Tracey's Towing."); Cellco Pshp. v. Town of Douglas, 81 F. Supp. 2d 170, 175 (D. Mass. Dec. 28, 1999) ("The ZBA is ORDERED to issue the necessary variances and permits to allow construction of the BAM tower on the Chesbrough hill site.").
CONCLUSION
Based on the undisputed facts and for the foregoing reasons, Plaintiff's Renewed Motion for Summary Judgment is ALLOWED as to Count 3 of the complaint. Judgment shall enter on Count 3 (1) declaring that the Council's denial of the special permit application to construct the Proposed Facility constitutes an effective prohibition of personal wireless service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), (2) annulling the Council's decision, and (3) remanding this matter to the Council with instructions, on its own authority or through its boards, agents and/or officers, (a) to grant the special permit application, and (b) to take all necessary actions to remove any further impediments to the construction of the Proposed Facility, including the issuance of variances, other special permits, and a building permit, if required. Count 4 [Note 5] of the complaint is dismissed without prejudice.
CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS, v. THE CITY OF PEABODY, MASSACHUSETTS, THE CITY COUNCIL OF PEABODY, MASSACHUSETTS, and BARRY P. OSBORNE, PETER M. MCGINN, JAMES MOUTSOULAS, ROBERT E. DRISCOLL, JOEL D. SASLAW, BARRY C. SINEWITZ, MICHAEL V. GARABEDIAN, THOMAS L. GOULD, DAVID C. GRAVEL, ANNE M. MANNING-MARTIN AND THOMAS P. WALSH, in their capacities as members of the CITY COUNCIL OF THE CITY OF PEABODY, MASSACHUSETTS.