HomeMy WebLinkAboutComcast 2009 Cable Franchise Administration Report2009 Cable Franchise Administration Report
City of Auburn, Washington
.r
.
Prepared By:
Michael R. Bradley
(253) 931-4753
January 14, 2010
INTRODUCTION
For several years, the City of Auburn (the "city") has engaged the cable franchise
administrative services of Bradley & Guzzetta, LLC ("B&G"). B&G works with many
cities across the country on cable franchising matters. For the City, B&G receives all
calls related to cable franchising, such as complaints and requests for discounts from seniors and the disabled. This report will outline some of the services we have offered
during the year and outline the major issues facing local governments on cable
franchising.
I. Customer Service.
B&G maintains a local number with the same prefix as the City's phone numbers
for all cable-related requests, questions and complaints. Many of the phone calls are
requests for a cable television discount. The City's cable franchise with Comcast
provides for low income seniors (age 62 or over) and disabled persons to receive a 30%
discount on their basic cable service. This package of cable service is known as the
"Limited Cable" package. The City is required to certify eligibility for the discount.
B&G drafted a special form that it now uses to certify eligibility. When citizens call our
phone number, we answer questions about the available discounts and then we either mail
or e-mail a discount application to complete and return to us. When we mail the
applications, we include a self addressed envelope for ease in returning the application to
us. We use City envelopes to mail out the application forms.
In 2009, we spoke with approximately 125 citizens on cable franchising issues.
Our call log is attached. The majority were residents seeking asenior/disability discount.
The certification program continues to operate very efficiently from our perspective and
Comcast has been very cooperative with our efforts. We typically are able to certify
applications on the same day that we receive them and Comcast typically grants the
discount on either the same or next day. We are also asking callers if they have e-mail
access. Most do not. However, if they do, we offer the ability for citizens to receive their
discount applications within minutes of their request through e-mail.
This year marked a change in how television programming is delivered to homes
in the area. First, we saw the over-the-air broadcasters transition their signals from
analog to digital. As a result, residents receiving over-the-air programming on older
analog televisions needed to purchase adigital-to-analog converter. There was a
government $40.00 coupon program that assisted with the purchase of these converters.
We provided the City information on this digital transition and we answered questions
from citizens. Comcast also began a "migration" of their analog signals to digital signals
this year. This was somewhat confusing for residents, since both the over-the-air and
Comcast signal delivery changes involved moving signals from analog to digital.
Comcast migrated all of their analog signals to digital with the exception of their basic
Page 2 2009 Cable Franchise Administration Report 1/14/2010
4
service tier (the Limited Cable Package). Customers impacted from this change were
given up to three digital converter boxes from Comcast at no additional cost. All things
considered, both transitions went as well as could be expected.
We addressed a number of other customer inquiries and complaints. We were
most pleased in helping a resident get upgraded facilities to his home buried after
Comcast had initially insisted of having the facilities above ground. This allowed the
customer to get clear cable service and much better Internet service. We also addressed
complaints associated with customer service, cable pricing disputes, Comcast's business
practices, signal quality, Internet service quality, and rates. We also assisted citizens with
pursuing other discounts available through the City. We believe that all questions and
complaints were completely addressed. If you would like any additional detail on our
services, please do not hesitate to call me.
II. Litigation
While not related to cable television, we advised the City that the law has been
changing over the past year on city action on Wireless Cell Tower applications. We
forwarded T-Mobile v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009), which was filed
this summer by the U.S. Court of Appeals. When facing tower application issues, the
City should also look at Sprint v. County of San Diego, 543 F.3d 571 (9th Cir. 2008),
which overruled City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001). Another
case to consider is ~VletroPCS, Inc. v. City of San Francisco, 400 F.3d 715 (9th Cir.
2005).
III. Franchise Fees
As the consideration for the privilege of occupying the public rights-of way in the
city, Comcast pays a franchise fee to the City in the amount of 5% of Comcast's gross
revenues. The City is on pace to receive approximately $750,000 in franchise fee
payments from Comcast in 2009. This represents an increase of approximately $70,000
from the $680,035.11 of franchise fees paid in 2008. This increase is due to the increase
of cable pricing and the increase of the subscriber base resulting from the city's
annexations. The franchise fee reports are attached.
IV. Performance Review
The cable franchise also requires Comcast to meet certain minimum customer
service standards and provide quarterly reports to the City. These reports provide the
following:
• Total number of calls received in a reporting period;
• Time taken to answer;
• Average talk time;
Page 3 2009 Cable Franchise Administration Report 1/14/2010
4
• Number of calls abandoned by the caller;
• Average hold time;
• Percentage of time all lines busy;
• An explanation of any abnormalities.
Comcast has submitted quarterly performance reports for the first three quarters of 2009,
copies of which are attached.
V. Renewal
The cable franchise with Comcast was extended by mutual agreement earlier in
2009.
VI. Rates
The City is a certified rate regulatory authority with the FCC. Under federal laws
and regulations, the City is limited to the review of basic cable service tier. In simplest
terms, this means the City may regulate the rates associated with the tier of service that
includes the local over-the-air channels, such as KOMO-4 and KING-5, and the City's
PEG channel, Channel 21. In terms of programming, Comcast currently sells this level
of programming service as "Limited Cable." This is somewhat confusing because
Comcast also sells a "Basic Cable" package.
Every year, the City receives a FCC Form 1205 and a FCC Form 1240 from
Comcast. The FCC Form 1205 is the form that Comcast files to justify its maximum
permitted rates for installation and equipment associated with the basic service tier.
Since it is a national filing, Comcast files the same form with certified rate authorities
across the country. This allows the City to join with a number of Cities to engage a cable
rate consultant to conduct a thorough review of the rate form. Periodically we will
recommend that the City j oin such a review.
The FCC Form 1240 is the form that Comcast files to justify the maximum
permitted rates that Comcast can charge for the programming in the basic cable service
tier. This is a local form that differs from city to city. This form should also be reviewed
periodically by a cable rate consultant.
Our rate review memorandum on the Comcast 2009 rate filing is attached.
Page 4 2009 Cable Franchise Administration Report 1/14/2010
4
CONCLUSION
It is our pleasure to serve the City in the capacity of cable franchise administrator.
Should you have any questions concerning our services or cable television, please do not
hesitate to contact me.
Mike Bradley
Cable Franchise Administrator
253-931-4753, ext 2
Page 5 2009 Cable Franchise Administration Report 1/14/2010
4
ATTACHMENT
2009 Telephone Log
2009 Cable Franchise Administration Report 1/14/2010
4
and certified for Comcast by e-
mail.
1-12-09 Robert Simms 253-833-6263 Mr. Robert Simms MRB: Mr. Simms called and left
5320 S 372 St contact information on voice
Auburn, WA 98001 mail. Sent discount app. via US
mail.
1-13-09 Walt Lufkin 253-833-1119 Mr. Walter Lufkin MRB: Daughter for Mr. Lufkin
2302 R Street SE called requesting a discount app
# 10 form. Mailed to Mr. Lufkin.
Auburn, WA 9 8 002
1-13-09 Lorajo Sailors 253-833-3502 Ms. Lorajo Sailors MRB: Phone call and mailed
27 Pike Street NE discount app.
Auburn, WA 98002 MRB: 1-19-09 phone call from
Ms. Sailors concerning blocking out her SSN. I told her that
would be fine.
MRB: 1-23-09 Received
discount app and certified for
Comcast -sent via e-mail to
Comcast.
1-16-09 Sandy Vekaert 253-288-2190 32449 42n Place South MRB: Contacted Federal Way.
Federal Way, WA
98001
1-21-09 Joan Dwigans joandwi~ans(a,comcast. MRB: Phone call with Ms.
net Dwigans. Sent discount app via
e-mail.
1-22-09 Marjorie Farney 253-833-7612 Ms. Marjorie Farney MRB: Resident of Auburn for 45
315 J Street NE years. Husband a Pearl Harbor
Auburn, WA 98002 Survivor. Sent discount app by US Mail.
MRB: 2-ll-09 -Received note
from Mrs. Farney. Requested
discount for the Farneys. I don't
they are able to complete a
discount form.
1-22-09 Lew Humiston 253-218-5771 11804 SE 3171 Place MRB: Internet complaint. Needs
(cell) Auburn, WA 98092 new drop. Not getting what they 253-735-4219 Lewhumiston72 hotm paid for. Neighbor dug up yard
ail.com and dug out cable pedestal -filled with water. Box is 25 years old.
Problems for a month.
E-mailed Terry Davis and asked
him to escalate the complaint and
give a refund due to the length of
time customer was without
service.
MRB: 1-28-09 - Notified by
Comcast that the item was
resolved. MRB: 2-11-09 - Mr. Humiston
left VM that problem returned.
Contacted Comcast to escalate
complaint. Comcast responded
within the hour to send two
technicians to work the problem.
MRB: 4-8-09 - Spoke to Terry
Davis customer receiving good
service as of 3-25-09.
1-23-09 Elizabeth Penn 253-833-5108 Ms. Elizabeth Penn MRB: Referred to me via e-
907 29th St SE mail from Comcast. Spoke to
Apt A Ms. Penn via phone and sent
Auburn, VVA 98002 discount app to her via US
mal .
MRB: 1-30-09 -Received app
via mail and certified to
Comcast the same day via e-
mal .
2-4-09 Carol Belshaw 253-627-1324 3814 S 306th Pl MRB: Received VM from Ms.
253-941-8094 Auburn, WA 98001 Belshaw. Returned call and
left VM at her office.
2-5-09 Don Martin 253-351-6481 Mr. Don Martin MRB: Received VM from Mr.
107 VV Main St #402 Martin. Returned call to
Auburn, VVA 98001 answer.
MRB - 2-6-09 returned call
again and spoke to Mr. Martin.
Mailed discount app via US
mal .
2-17-09 Mary Crosson 253-887-1109 Ms. Mary Crosson MRB: Phone call with Ms.
103 5 61St Street SE Crosson. Send discount form
Unit 201 via US mail.
Auburn, VVA 9 8 092
3-3-09 Richard 425-829-2234 3438 High Street NE MRB: VM from Mr. Erickson.
Erickson # 2-203 Send discount app to him by
Auburn, VVA 98002 US Mail.
3-4-09 MRB: Answered questions
about discount.
3-4-00 Alexandrea Savage MRB: E-mail from Jinelle 125 "A" Street NW #205 Burt with contact information
Auburn, WA 98001 on Ms. Sava e. Send form via
g US Mail.
3-6-09 Timothy McCoy 253-833-5900 Mr. Timothy McCoy MRB: E-Mail from Jinelle Burt - 125 A St NW Mr. McCoy came in and
#201 requested a form to apply for a
Auburn, WA 98002. Comcast discount as he is
disabled. Send discount app via
US Mail.
MRB: 4-6-09 - Certif discount
app via a-mail.
3-10-09 Marjorie Rommel 253-939-0571 Mar_iorie.rommel an_,gmail.c MRB: Phone call from Ms.
253-833-4798 om Rommel. Sent discount app via
e-mail. Sent a-mail to Comcast
requesting phone service.
MRB: 4-6-09 -Certify discount
app to Comcast via a-mail.
3-13-09 Jim Jackson 253-929-8701 Crmaduell2~aol.com MRB: Received VM from Mr.
Jackson. Returned call and left
VM. Mr. Jackson returned call and I sent him a discount
application via a-mail.
3-23-09 Heather Caufman 253-929-8904 Ms. Heather Caufman MRB: Received VM from Ms.
32115105t" Place SE Kaufman over the weekend.
Apt. E-203 Send application to her via US
Auburn, WA 98092 Mail.
ACCT # MRB: 4-6-09 -Certify discount to
8498340170345864 Comcast.
3-24-09 lone L. Hartzer 253-833-6416 Ms. lone L. Hartzer MRB: Phone call from son.
502 8t" Street NE Mailed out discount form via US
Apt 20 Mail. Auburn WA 98002
4-6-09 Shrirley R. Hart MRB: Receive and certify
discount app to Comcast via e-
mail.
4-6-09 Eugenie 253-737-4148 Ms. Eugenie Guftason MRB: Return phone call to Ms.
Guftason 31600126t" Ave SE Guftason -leave VM. Space # 66
Auburn, WA 98092-3684 MRB: 4-7-09 -Receive phone
call from Ms. Guftason -send
discount app via US Mail.
4-15-09 Michael Manton 253-876-0485 mmanton61(a)comcast.ne MRB: Phone call from Mr.
t Manton -send discount form by e-mail.
4-16-09 James Fuller 253-833-9939 Jwfuller65 an_,q.com MRB: Sent discount app. via e-
Gre or Heisel mail.
4-17-09 Marilyn Hurlow 253-804-6742 mhurlow anmsn.com MRB: Send discount app via e-
mail. 4-24-09 Carol Brown 253-737-4623 Brown cd anyahoo.com MRB: Send Discount app via e-
mail.
4-20-09 Marsha 253-939-4113 MRB: Return call on discount.
4-27-09 Sam 206-615-1183 Sammie 411(a~hotmail.co MRB: Calling for parents -Send
m discount via a-mail.
4-29-09 Mike Chandler 253-833-4550 Mr. Mike Chandler MRB: Underground cable has 218 Hi Crest Drive deteriorated and signal is too
Auburn, WA 98001-3840 weak. Cable needs to be
replaced, but Comcast is claiming
Acct # that customer needs to pay for
8498340210001089 the new line. Customer very upset. Cable initially installed in
1973.
Comcast came out March 17,
March 27 for first time and then
a ain in April 425-918-1072 Nora
4-29-09 Mary Groshong 253-931-8889 marybgroshonq anhotmail. MRB: Phone call from Mary she com is a POA for an Auburn citizen
and wanted the discount form.
Sent via a-mail.
4-29-09 Alexandria MRB: Following up on discount
Savage app. I certified it on 3-17-09 and
she is ettin the discount.
5-1-09 Robert 253-288-2030 1001 17 Ave SE MRB: Field call. Mr. Benavidez Benavidez Apt 601 taken off discount. Follow up with
Auburn, WA Comcast via a-mail.
MRB: Comcast provided $15
credit and put the discount back on.
5-20-09 Ms. Witenzer 253-833-1028 Kewinsor5(~comcast.net MRB: Return VM call -discuss
Internet pricing that Ms. Winsor
believes is too high. Told her the
city cannot control their internet
pricing presently, but that we could send her a discount form for
cable. Sent discount app via US
Mail.
6-4-09 Elizabeth Camtel 253-737-5378 MRB: Received VM. Returned
call. Male voice hun upon me.
6-9-09 Reno Payne 253-333-0105 Mr. Reno Payne MRB: Spoke to Mr. Payne on the 125 A Street NW phone. Sent discount app via US
Unit 304 Mail.
Auburn, WA 98001
6-9-09 Elizabeth Cantil 253-737-5378 Ms. Elizabeth Cantil MRB: Phone call with Ms. Cantil
Ronald Cantil 140410t" Street NE and send discount app via US
Auburn, WA 98002 mail.
MRB: 6-18-09 -Receive and
certify discount to Comcast via e-
mail.
6-9-09 Dawn Arsenoe 253-929-6508 arsenauxatu anlive.com MRB: Return call re cable Ms. Dawn Arsenauxatu discount. Send discount app via
2436 Auburn Way e-mail
North
Apt # 5 MRB: Sent via US Mail
Auburn, WA 98002
6-15-09 Carolyn Manley 253-941-1085 Ms. Carot~n Manley MRB: Send discount app via US
29102 39 Avenue S mail. Auburn, WA 98001
MRB: 7-10-09 Certify discount
app to Comcast via a-mail.
6-16-09 Diane Ehle 253-833-0394 Ms. Diane Ehle MRB: Send discount app via US
1516 G Street SE mail.
Auburn, WA 98002
6-18-09 Dorothy MRB: Receive discount app from Chambers Ms. Chambers and certify it to
Comcast via a-mail.
6-30-09 Jasmine Luna 253-351-8452 Ms. Jasmine Luna MRB: Return call -leave VM.
6-30-09 Karen Spalding 253-854-0483 Ms. Ka hen Spalding MRB: Return Call -leave VM.
802 45 St. N E MRB: 7-3-09 -receive VM
Apt 7-102 MRB: 7-8-09 -Send discount
Auburn,WA 98002 form
6-17-09 Dolph Swanson 253-351-2978 Mr. Dolph H. Swanson MRB: Receive call from Mr. 111 D St SW Swanson -promotional discount
Auburn, WA 98001-5323 ending and would like Disability
Discount put back on. E-mail
Comcast. Comcast says they will
put it on effective July 2. MRB: 7-7-09 -Receive VM from
M r. Swanson -says Comcast has
not reinstated discount. E-mail
Comcast to confirm.
7-24-09 Sandra 253-833-2938 Ms. Sandra Burnsome MRB: Return call.
Burnsome 308 South Division Street Auburn, WA 98001
7-24-09 Betty Englehardt 253-735-4263 Ms. Betty Englehardt MRB: Send discount app.
30926114 Lane SE
Space 17 MRB: 8-17-09 Certify discount to
Auburn, WA 98092 Comcast via a-mail
7-24-09 Katherine 206-571-0115 MRB: Discount question. Kan ara
7-3-09 Karen Spalding 253-854-0483 MRB: Sent discount app.
7-13-09 Lena Foree 253-359-6914 MRB: Sent discount app for
mother.
7-17-09 No Name 253-507-3530 MRB: Caretaker question on
discounts
7-28-09 Jennifer Meinert 253-737-5775 MRB: Send discount app via e- mail.
7-31-09 Melany 253-740-0125 MRB: discount questions
7-31-09 Cynthia 206-437-8180 MRB: discount questions
Procknow
8-3-09 Charles 206-402-1280 MRB: Discount question.
Anderson
8-17-09 Elizabeth Helton 253-833-5577 MRB: Sent discount app.
MRB: 8-24-09 -certified app to
Comcast via a-mail.
8-26-09 Timothy McCoy 253-833-5900 MRB: Called - no answer.
Called his mother and sent
discount app.
MRB: 12-18-09 -certify discount
to Comcast
9-1-09 Opal Eversole 253-833-3767 MRB: Sent discount app.
MRB: 10-1-09 -Certified discount to Comcast via a-mail.
9-8-09 No Name 206-676-0582 MRB: Disability Discount
question
9-9-09 Pepe Taylor 206-243-6055 MRB: Discount question
9-9-09 Cindy Bowen 253-946-9095 MRB: Discount question
9-9-09 Bernice Johnston 253-835-1362 MRB: Send Discount app.
9-13-09 Noc Dang 206-242-0971 MRB: Discount question
9-23-09 Rex Coxen 206-890-2266 MRB: Discount question.
9-23-09 Diana Taylor 253-833-8080 MRB: Trade phone calls. Send discount 10-2-09.
MRB: 10-19-09 -certify discount
to Comcast.
9-30-09 Tamara Johnson 206-769-1619 MRB: Discount question.
10-1-09 Zora 253-839-3253 MRB: Discount question. Buckenber er
10-1-09 Diana Stockstill 206-772-6631 MRB: Discount question.
10-1-09 Geradine 253-833-3401 MRB: Certified discount app to
Gronewold Comcast via a-mail.
10-3-09 Tom Jenkins 253-951-0005 MRB: Discount question.
MRB:
10-5-09 Peggy Crawford 360-825-3351 MRB: email discount form.
10-15-09 William Miller 253-333-9008 MRB: send discount app via US mail.
10-16-09 Chanay Goldsby 253-952-0502 MRB: Send discount app.
10-20-09 Vera Da Vinci 253-269-4488 MRB: Send discount app.
10-20-09 Auburn sub MRB: discuss signal quality issue
with upset subscriber. -would not
leave name and number to follow
up with Comcast.
10-22-09 Jerecine Bettes 253-804-8993 MRB: discount question.
10-22-09 Greg Heisel 253-833-9939 MRB: send discount app
11-6-09 Janet Myers 253-833-8293 MRB: send discount app
MRB: 12-16-09 -certify discount
app to Comcast
11-17-09 Susan Bates 253-939-9561 MRB: Send discount app
11-17-09 Louise Delany 206-248-2319 MRB: discount question
11-27-09 Judy Tolbert 253-770-4334 MRB: Discount inquiry
12-1-09 Glen Halverson 253-569-8701 MRB: Send discount app
12-8-09 Mary Flynn 253-288-0608 MRB: Discount inquiry
MRB: 12-9-09 send discount app
12-18-09 Ted Bachman 253-831-2511 MRB: Send discount app
12-11-09 Wendell Bricker 253-735-9524 MRB: Mr. Bricker is very upset with several different contacts that
he has had with Comcast. First,
he is upset that his pricing has
changed 2 or 3 times over the
past 18 months. When he lived in Puyallup he was promised a basic
cable rate of $8.00 and was told
that rate would continue even
when he moved to Auburn.
When he moved to Auburn his
rate went up to $12.00, then
$14.00 and later $15.00 and then
after complaining it went back to
$8.00. He is upset about being
promised one price but then being billed at another rate. This
seems as though it is increasingly
becoming a problem.
Second, on at least two
occasions a Comcast cable
technician was dispatched to the Brickers to work on the cable
facilities outside of their home.
Both times the technician arrived
unannounced. It was very
disconcerting that a Comcast Tech was outside their bedroom
window unannounced. The
technicians should announce
their presence whenever they are
working on a subscribers home or
property.
Finally, Mr. Bricker is upset with
the inconsistent messages that
he received from the Comcast
customer service representatives
concerning price and channels. He is particularly upset with one
particular CSR supervisor who he
believes has very rude.
MRB: 12-17-09 follow up on
Complaint
MRB: 12-23-09 Follow up on
complaint
MRB: 1-4-10 - follow up on
complaint 1-4-10 Gordon Fraizer 253-939-3704 MRB: email discount app
1-4-10 Emily Smith 253-333-1515 MRB: send discount app
1-7-10 Sara Oaks 253-939-4562 MRB: Send discount app
12-16-09 Cheryl Westberg MRB: Certify discount app to Comcast.
10-23-09 Astrid Lang MRB: Certify discount app to
Commast
10-23-09 Anna Jensen MRB: Certify discount to
Comcast
10-19-09 Betty J Moss 253-288-7632 MRB: Certify discount to Comcast
ATTACHMENT
T-Mobile v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009).
2009 Cable Franchise Administration Report 1/14/2010
4
Page 1
i
1 of 1 DOCUMENT
T-MOBILE USA INC., a Delaware corporation; et al.,Plaintiffs-Appellees, v. CITY
OF ANACORTES, a Washington municipal corporation, Defendant-Appellant.
No. 08-35493
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
572 F.3d 987; 2009 U.S. App. LEXIS 15924; 48 Comm. Reg. (P & F) 244
June 1, 2009, Argued and Submitted, Seattle, Washington
July 20, 2009, Filed
PRIOR HISTORY: [~l] that T-Mobile's proposal was the least intrusive means to
Appeal from the United States District Court for the close a significant gap in its wireless service in the City,
Western District of Washington. D.C. No. and that the City's denial was not supported by substantial
2:07-cv-01644-RAJ. Richard A. Jones, District Judge, evidence. We determine that, although the district court
Presiding. did not have the benefit of our opinion in Sprint
T-Mobile USA, Inc. v. City of Anacortes, 2008 U.S. Dist. Telephony PCS, L.P. v. County of San Diego, 543 F.3d
LEXIS 37481(W.D. Wash., May 6, 2008) 571 (9th Cir. 2008) [~2] (en Banc) ("Sprint II"), and
therefore failed to recognize that the City's denial of the application was supported by substantial evidence, the
COUNSEL: Dan S. Losing of Inslee, Best, Doezie & district court nevertheless properly concluded that the
Ryder, P.S. of Bellevue, Washington, for the City's denial of the application violated § 332(c)(7)(B)
defendant-appellant. because the City failed to rebut T-Mobile's showing that
the denial of the application amounted to an effective
T. Scott Thompson (argued) of Davis Wright Tremaine, prohibition of wireless services.
LLP of Washington, D.C., and Linda Atkins of Bellevue, Washington, for the plaintiffs-appellees. I.
JUDGES: Before: William C. Canby, Jr., David R. T-Mobile offers digital wireless voice, messaging
Thompson and Consuelo M. Callahan, Circuit Judges. and data services. It provides its services through a
Opinion by Judge Callahan. cellular radio telephone network which is comprised of
thousands of cell antenna sites, switching facilities and
OPINION BY: Consuelo M. Callahan other network elements. The federal government assigns
radio frequency ("RF") channels to each wireless carrier
OPINION and the RF channels are assigned to the cell sites to enable wireless communications. The district court noted:
CALLAHAN, Circuit Judge: "[t]he limited number of RF channels must be reused at
different cell sites, creating potential interference
The City of Anacortes (the "City") appeals the between sites. To minimize such interference, all sites
district court's determination that the City's denial of an transmit at very low power, resulting in limited coverage
application by T-Mobile USA, Inc. ("T-Mobile") to erect from each site. The location of antenna sites is a 116-foot monopole antenna at a particular location determined by terrain, structure
blockage, call volume,
violates a provision of the Telecommunications Act of and antenna height."
1996, 47 U.S.C. § 332(c)(7)(B). The district court found
Page 2 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~2;
48 Comm. Reg. (P & F) 244
In September [~3] 2006, in order to close a "service findings of fact and conclusions of law denying the gap" and to expand its coverage in the City, T-Mobile application.
applied for a permit to construct an additional wireless
telecommunications facility ("WCF") at a particular site: On the basis of the testimony of witnesses and other
2201 "H" Avenue, which is owned by the United evidence before the City Planning Commission and City
Methodist Church (sometimes referred to as the "Church Council, the City's written findings and conclusions
site"). The permit application analyzed eighteen site explained that:
alternatives and proposed the construction of a 116-foot
monopole with three antennas at the top. The proposed wireless communications facility would have a commercial
The Anacortes Municipal Code ("AMC") regulates appearance and would detract from the
the permitting approval process. T-Mobile's application residential character and appearance of the
was fora "special use permit" ("SUP"). 1 The AMC also surrounding neighborhood. The proposed
provides that installation of a tower or antenna without a wireless communications facility would
permit is a misdemeanor. not be compatible with the character and
appearance of the existing development in 1 The AMC sets forth eight factors the City must the vicinity of 2201 "H" Avenue, which is
consider when deciding whether to grant a SUP: predominantly single-family residences.
The proposed wireless communications
1, the height of the proposed facility would negatively impact the views
tower, from single-family residences in the
vicinity of the proposed site.
2, the proximity of the tower
to residential structures and district The City further stated that the predominant land use in boundaries, the vicinity of the proposed site was residential and that
3. the nature of uses on the "existing [~5] vegetation would not completely
adjacent and nearby properties, screen the proposed tower and the tower would be taller than the existing trees."
4, the surrounding topography, The City also concluded that "T-Mobile has not
5. the surrounding tree established that its proposal to locate a wireless
coverage and foliage, communications facility tower at the 2201 'H' Avenue
site is the 'least intrusive' on the values that the denial of
6. the design of the tower the application seeks to serve." It determined:
(with emphasis on features that reduce or eliminate visual At least four alternative single sites are
obtrusiveness), potentially acceptable to provide coverage
as required by T-Mobile, and at least two
proposed ingress and two-site alternatives would work from an
egress, and RF coverage perspective. These
alternative sites are either on 8. the availability of commercially or industrially zoned
alternatives [~4] not requiring a property, or would provide a site for [a]
tower. proposed wireless communications facility
that is not in such close proximity to
The City Planning Commission eventually denied residences. T-Mobile also offers an
the application, and T-Mobile appealed to the City in-home service technology that provides
Council. The City Council held a hearing on the matter another alternative for "in-structure" and following the meeting, voted to deny the application. cellular telephone service. If
T-Mobile
On September 19, 2007, the City Council entered written constructed a wireless communications
Page 3 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~5;
48 Comm. Reg. (P & F) 244
facility at one or more of the alternate rehear Sprint I en banc. The City then asked the district single sites or two-site alternatives, a court to reconsider its order and to grant
a stay of
significant gap in T-Mobile's service enforcement pending the resolution of the en banc
coverage would no longer exist, even proceedings in Sprint L T-Mobile opposed the City's
though that coverage would not be requests and also asked the district court to rule on its
identical to that provided by a tower at the claims under § 332.
2201 "H" [~6] Avenue site.
On July 18, 2008, the district court denied the City's requests for relief and ruled in favor of T-Mobile on its
II. request for relief under § 332. The district court held:
On October 10, 2007, T-Mobile filed a complaint for T-Mobile has shown that its proposal
declaratory and injunctive relief in the District Court for was the "least intrusive" means to close
the Western District of Washington, alleging violations of the significant gap, based on its good-faith
sections 253 and 332 of the Telecommunications Act effort to identify less-intrusive
("TCA"), 47 U.S.C. 253 and 332(c)(7)(B). The parties alternatives. The City's conclusion to the filed cross-motions for summary judgment, and at a contrary was not supported by substantial
hearing held on April 25, 2008, agreed that no material evidence. Because the City prevented
facts were in dispute that might prevent the court from T-Mobile from closing a significant
ruling on the respective motions. service gap through the "least intrusive"
means available, the City's [~8] decision
On May 6, 2008, the district court granted T-Mobile has the effect of prohibiting wireless
summary judgment on its claim that the AMC, as it service in violation of Section 332(c)(7).
related to T-Mobile's wireless communications facility, was preempted by 47 U.S.C. § 253. The district court
based its ruling on the Ninth Circuit's opinion in Sprint On September ll, 2008, we issued our en banc
Telephony PCS, L.P. v. County of San Diego, 490 F.3d opinion in Sprint II. The en banc panel disagreed with
700 (9th Cir. 2007) ("Sprint 1"). ~ The district court Sprint I and with the court's prior opinion in City of
ordered the City to issue a permit allowing T-Mobile to Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001),
construct the monopole. It also noted that in light of its and joined "the Eighth Circuit in holding that 'a plaintiff
resolution of the § 253 preemption issue, it did not need suing a municipality under section 253(a) must show
to address the parties' arguments concerning § 332(c)(7). actual or effective prohibition, rather than the mere
possibility of prohibition."' 543 F.3d at 578 (quoting 2 The district court reasoned: Level 3 Commc'ns, L.L.C. v. City of St. Louis, 477 F.3d
528, 532 (8th Cir. 2007)). The county ordinance challenged
in Sprint [I] contains similar The parties then stipulated that Sprint II was
provisions to the AMC controlling as to T-Mobile's claim under § 253, and
provisions challenged in this case. agreed that the portion of the appeal concerning § 253
Both add voluminous submission could be remanded to the district court to allow T-Mobile
requirements to a multi-layer to withdraw its claim under § 253. We issued an order permitting process, both contain effectuating the parties' stipulation. Thus, only the district
criminal penalties for court's grant of relief to T-Mobile pursuant to 47 U.S.C. §
non-compliance, and both include 332 remains pending before us.
subjective aesthetic and design
requirements that vest significant III.
discretion in the decision-making
body. Resolution of this appeal requires some appreciation
of the purposes behind the Telecommunications Act of 1996, Pub. L. No 104-104, 110 Stat. 56„ (codified as
Shortly after the district court's order, we agreed to amend in scattered [~9] sections of U.S.C., Tabs 15, 18,
Page 4 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~9;
48 Comm. Reg. (P & F) 244
47), and our efforts to discern and effectuate those public rights-of way on a purposes. when enacting the TCA, Congress expressed nondiscriminatory basis, if the
two sometimes contradictory purposes. First, it expressed compensation required is publicly
its intent "to promote competition and reduce regulation disclosed by such government.
in order to secure lower prices and higher quality services
for American telecommunications consumers and (d) Preemption
encourage the rapid deployment of new
telecommunications technologies." 110 Stat. at 56. In If, after notice and an
Sprint II, we noted that Congress chose to "end the States' opportunity for public comment,
longstanding practice of granting and maintaining local the Commission determines that a exchange monopolies" and that it did so by enacting 47 State or local government has
U.S.C. § 253.3 543 F.3d at 576 (internal punctuation and permitted or imposed any statute,
citations omitted). regulation, or legal requirement
that violates subsection (a) or (b)
3 Section 253 reads, in relevant part: of this section, the Commission
shall preempt the enforcement of
(a) In general such statute, regulation, or legal requirement to the extent necessary
No State or local statute or to correct such violation or
regulation, or other State or local inconsistency.
legal requirement, may prohibit or
have the effect of prohibiting the (e) Commercial mobile service
ability of any entity to provide any providers
interstate or intrastate
telecommunications service. Nothing in this section shall affect the application of section
(b) State regulatory authority 332(c)(3) of this title to
commercial mobile service
Nothing in this section shall providers.
affect the ability of a State to
impose, on a competitively neutral
basis and consistent with section Second, Congress was determined "to preserve 254 of this title, requirements 11 ] the authority of State and local governments over
necessary to preserve and advance zoning and land use matters except in the limited
10] universal service, protect the circumstances set forth in the conference agreement."
public safety and welfare, ensure Sprint II, 543 F.3d at 576 (internal punctuation and
the continued quality of citations omitted). This legislative purpose was reflected
telecommunications services, and in the enactment of 47 U.S.C. § 332(c)(7). 4 "Section
safeguard the rights of consumers. 332(c)(7)(A) preserves the authority of local governments over zoning decisions regarding the placement and
(c) State and local government construction of wireless service facilities, subject to
authority enumerated limitations in § 332(c)(7)(B). One such
limitation is that local regulations "shall not prohibit or
Nothing in this section affects have the effect of prohibiting the provision of personal
the authority of a State or local wireless services." Sprint II, 543 F.3d at 576.
government to manage the public
rights-of way or to require fair and 4 Subsection 332(c)(7) reads: reasonable compensation from
telecommunications providers, on Preservation of local zoning
a competitively neutral and authority
nondiscriminatory basis, for use of
Page 5 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~ 1 l;
48 Comm. Reg. (P & F) 244
(A) General authority record.
Except as provided in this (iv) No State or local
paragraph, nothing in this chapter government or instrumentality
shall limit or affect the authority thereof may regulate the
of a State or local government or placement, construction, and
instrumentality thereof over modification of personal wireless
decisions regarding the service facilities on the basis of the placement, construction, and environmental effects of radio
modification of personal wireless frequency emissions to the extent
service facilities. that such facilities comply with the
Commission's regulations
(B) Limitations concerning such emissions.
(i) The regulation of the (v) Any person adversely
placement, construction, and affected by any final 13] action
modification of personal wireless or failure to act by a State or local
service facilities by any State or government or any instrumentality
local 12] government or thereof that is inconsistent with
instrumentality thereof - this subparagraph may, within 30
days after such action or failure to
(I) shall not unreasonably act, commence an action in any discriminate among providers of court of competent jurisdiction.
functionally equivalent services; The court shall hear and decide
and such action on an expedited basis.
(II) shall not prohibit or have Any person adversely affected by
the effect of prohibiting the an act or failure to act by a State or
provision of personal wireless local government or any
services. instrumentality thereof that is inconsistent with clause (iv) may
(ii) A State or local petition the Commission for relief.
government or instrumentality
thereof shall act on any request for (emphasis added).
authorization to place, construct, or
modify personal wireless service In MetroPCS, Inc. v. City of San Francisco, 400 F.3d
facilities within a reasonable 715 (9th Cir. 2005), we considered the requirement in §
period of time after the request is 332(c) that a local zoning decision be "supported by duly filed with such government or substantial evidence." Id. at 723-26 (discussing 47 U.S.C.
instrumentality, taking into § 332(c)(7)(B)(iii)). We noted that although the term
account the nature and scope of "substantial evidence" was not defined in the TCA, there
such request. appeared to be "universal agreement among the circuits
as to the substantive content of this requirement" "this
(iii) Any decision by a State language is meant to trigger 'the traditional standard used
or local government or for judicial review of agency decisions."' Id. at 723 instrumentality thereof to deny a (internal citation omitted). Furthermore, "the substantial
request to place, construct, or evidence inquiry does not require incorporation of the
modify personal wireless service 14] substantive federal standards imposed by the TCA,
facilities shall be in writing and but instead requires a determination whether the zoning
supported by substantial decision at issue is supported by substantial evidence in
evidence contained in a written the context of applicable state and local law." Id. at
Page 6 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~ 14;
48 Comm. Reg. (P & F) 244
723-24. "In other words, we must take applicable state 's showing that a locality could potentially and local regulations as we find them and evaluate the prohibit the provision of
City decision's evidentiary support (or lack thereon telecommunications services is
relative to those regulations. If the decision fails that test insufficient.
it, of course, is invalid even before the application of the
TCA's federal standards." Id. at 724. We commented that Id. at 579 (footnote omitted) (emphasis added).
this approach "enables us to avoid unnecessarily reaching
the federal questions of whether a zoning decision Although Sprint II concerned a facial challenge to a
violates the substantive provisions of the TCA," and local ordinance pursuant to § 253, its statements as to
noted that "inmost cases, only when a locality applies the what a plaintiff service provider had to show provide regulation to a particular permit application and reaches a guidance
for our resolution of this as-applied challenge to
decision which it supports with substantial evidence the City's denial of a permit pursuant to § 332. For
can a court determine whether the TCA has been instance, we noted:
violated." Id.
A certain level of discretion is involved
Sprint II concerned a facial challenge to a local in evaluating any application for a zoning
zoning ordinance under § 253 of the TCA. 543 F.3d at permit. It is certainly true that a zoning
574. The en banc court generally agreed with the board could exercise its discretion to standards set forth in MetroPCS, and in doing so moved effectively prohibit the provision of
away from the more "procedural" 15] standard we had wireless services, but it is equally true
endorsed in Sprint I and Auburn. 5 It overruled Auburn (and more likely) that a zoning board
and joined "the Eighth Circuit in holding that 'a plaintiff would exercise its discretion only to
suing a municipality under section 253(a) must show balance the competing goals of an
actual or effective prohibition, rather than the mere ordinance the provision of wireless
possibility of prohibition."' Sprint II, 543 F.3d at 578 services and other valid public goals such
(quoting Level 3 Commc'ns, 477 F.3d at 532). as safety and aesthetics.
5 In Auburn, we held that the municipal 543 F.3d at 580. We also noted that the plaintiff had "not
regulations at issue "were preempted because they identified a single requirement that effectively prohibits it
imposed procedural requirements, charged fees, from providing wireless services," commenting that "[o]n
authorized civil and criminal penalties, and 'the the face of 17] the Ordinance, requiring a certain
ultimate cudgel' reserved discretion to the city amount of camouflage, modest setbacks, and
to grant, deny, or revoke the telecommunications maintenance of the facility are reasonable and responsible
franchises." 543 F.3d at 577 (internal citation conditions for the construction of wireless facilities, not
omitted). an effective prohibition." 6 Id.
The en banc court noted that its approach to § 253 6 We also gave several examples of what
was "buttressed" by our interpretation of § 332(c). Id. It restrictions could be facially challenged.
explained that in "1VletroPCS, to construe §
332(c)(7)(B)(i)(II), we focused on the actual effects of If an ordinance required, for
the city's ordinance, not on what effects the ordinance instance, that all facilities be
might possibly allow." Id. The en banc court concluded: underground and the plaintiff
introduced evidence that, to Our holding today therefore harmonizes operate, wireless facilities must be
our interpretations of the identical relevant above ground, the ordinance would
text in 253(a) and 332(c)(7)(B)(i)(II), effectively prohibit it from
Under both, a plaintiff must establish providing services. Or, if an
either an outright prohibition 16] or an ordinance mandated that no
effective prohibition on the provision of wireless facilities be located within
telecommunications services; a plaintiff one mile of a road, a plaintiff could
Page 7 572 F.3d 987; 2009 U.S. App. LEXIS 15924, ~ 17;
48 Comm. Reg. (P & F) 244
show that, because of the number 8 In Voice Stream, the district court observed: and location of roads, the rule
constituted an effective [u]nder the TCA, the board is
prohibition. entitled to make an aesthetic
judgment as long as the judgment
543 F.3d at 580. is "grounded in the specifics of the
case," and does not evince merely
IV. an aesthetic opposition to
cellphone towers in general... . With the benefit of our en banc opinion in Sprint II, Accordingly, when the evidence
we review the district court's order holding that the City's specifically focuses on the adverse
denial of the permit violates § 332(c). We review the visual impact of the tower at the
district court's grant of summary judgment de novo. particular location at issue more
MetroPCS, 400 F.3d at 720. Moreover, as suggested in than a mere scintilla of evidence
MetroPCS, we first consider whether the City's denial generally will exist.
under the AMC is supported by substantial evidence. Id. at 724. Determining that the denial 18] is supported by 301 F. Supp. 2d at 1258 (internal citations
substantial evidence under the applicable local laws, we omitted).
then consider whether the denial violates § 332(c). We
conclude that because the City failed to adequately rebut There was substantial evidence concerning these
T-Mobile's prima facie showing that no other location factors. A number of residents claimed that the monopole
was available and feasible, the district court properly would have a detrimental impact on the surrounding
found that the denial of the permit constituted an residential property, that the pole would not be
effective prohibition of coverage. completely screened, and that it would interfere with
residents' views of the Cascade Mountains and other A. The City's denial of the application was scenic views. This evidence is "more [~20] than a
supported by substantial evidence. scintilla of evidence," and accordingly the district court
The AMC provides that when considering a special should have deferred to the City's determination that the
use permit, the City may consider a number of factors evidence was adequate to support its denial of the
including the height of the proposed tower, the proximity application under the AMC. See MetroPCS, 400 F.3d at
of the tower to residential structures, the nature of uses on 725 (stating that "this Court may not overturn the Board's adjacent and nearby properties, the surrounding decision on'substantial
evidence' grounds if that decision
topography, and the surrounding tree coverage and is authorized by applicable local regulations and
foliage. ~ We, and other courts, have held that these are supported by a reasonable amount of evidence").
legitimate concerns for a locality. Sprint II, 543 F.3d at B. The City did not rebut T-Mobile's showing that
580 (stating that the zoning board may consider "other the denial of the application constituted an effective
valid public goals such as safety and aesthetics"); see also prohibition of services.
T-Mobile Cent., LLC v. Unified Gov't of Wyandotte
County, Kan., 546 F.3d 1299, 1312 (10th Cir. 2008) 1. Under the least intrusive means standard, the
(noting that "aesthetics can be a valid ground for local provider has the burden of showing the lack of available zoning decisions"); Cellular Tel. Co. v. Town of Oyster and technologically
feasible alternatives.
Bay, 166 F.3d 490, 494 (2d Cir. 1999) 19]
(recognizing that "aesthetic concerns can be a valid basis In MetroPCS, we recognized that a locality could
for zoning decisions"); Voice Stream PCS I, LLC v. City violate the TCA's effective prohibition clause if it
of Millsboro, 301 F. Supp. 2d 1251,1255 (D. Or. 2004). s prevented a wireless provider from closing a "significant
gap" in service coverage. 400 F.3d at 731. Such a claim
7 The AMC also provides for consideration of generally "involves atwo-pronged analysis requiring (1)
"the availability of alternatives not requiring a the showing of a "significant gap" in service coverage tower." The record does not indicate that any such and (2) some inquiry into
the feasibility of alternative
alternatives existed. facilities or site locations." Id. Here, the City concedes
Page 8 572 F.3d 987; 2009 U.S. App. LEXIS 15924, X20;
48 Comm. Reg. (P & F) 244
that there is a "significant gap" in [~21] T-Mobile's Where, as here, there is more than a scintilla of services in Anacortes. 9 Once the provider has evidence to support a locality's
disapproval of a particular
demonstrated the requisite gap, the issue becomes what site for a WCF, a court's determination of whether the
showing a provider must make in support of its proposed denial violates the TCA turns on an evaluation of the
means of closing the gap. Id. at 734, availability and technological feasibility of the [~23]
alternatives. We read MetroPCS and Sprint II as holding
9 In MetroPCS, we "formally adopt[ed] the First that the provider has the burden of showing the lack of
Circuit's rule that a significant gap in service (and available and technologically feasible alternatives. l~ See
thus an effective prohibition of service) exists Sprint II, 543 F.3d at 579; MetroPCS, 400 F.3d at 734. whenever a provider is prevented from filling a
significant gap in its own service coverage." 400 10 The Third Circuit appears to agree. It noted:
F.3d at 733.
the provider applicant must also
In MetroPCS, we adopted the "least intrusive means" show that the manner in which it
standard used by the Second and Third Circuit. 400 F.3d proposes to fill the significant gap
at 734 (citing ATP Pittsburgh, L.P. v. Penn Twp., 196 in service is the least intrusive on F.3d 469, 480 (3d Cir. 1999); Omnipoint Commc'ns the values that the denial sought to
Enters., L.P. v. Zoning Ilearing Bd. of Easttown Twp., serve. This will require a showing
331 F.3d 386, 398 (3d Cir. 2003); Nextel West Corp. v. that a good faith effort has been
Unity Twp., 282 F.3d 257, 266 (3d Cir. 2002); and Sprint made to identify and evaluate less
Spectrum L.P. v. Willoth, 176 F.3d 630, 642 (2d Cir. intrusive alternatives, e.g., that the
1999)). This standard requires that the provider "show provider has considered less
that the manner in which it proposes to fill the significant sensitive sites, alternative system
gap in services is the least intrusive on the values that the designs, alternative tower designs,
denial sought to serve." MetroPCS, 400 F.3 d at 734 placement of antennae on existing [~22] (internal quotation marks and citation omitted). We structures, etc.
noted that this standard:
Penn Twp., 196 F.3d at 480.
allows for a meaningful comparison of
alternative sites before the siting 2. The City failed to rebut T-Mobile's showing of a
application process is needlessly repeated. lack of available and feasible alternative sites.
It also gives providers an incentive to
choose the least intrusive site in their first In determining whether T-Mobile met its burden of
siting applications, and it promises to demonstrating that the Church site was the "least
ultimately identify the best solution for the intrusive means," we examine the City's stated ground for community, not merely the last one concluding otherwise. The City's findings and
remaining after a series of application conclusions stated:
denials.
At least four alternative single sites are
Id. at 734-35. Our opinion in MetroPCS concluded by potentially acceptable to provide coverage
instructing the district court to apply the "least intrusive as required by T-Mobile, [~24] and at
means" standard "in its consideration of the prohibition least two two-site alternatives would work
issue on remand." Id. from an RF coverage perspective. These alternative sites are either on
Here, T-Mobile, cognizant of the "least intrusive commercially or industrially zoned
means" standard, submitted a detailed permit application property, or would provide a site for
that included an analysis of eighteen alternative sites. The proposed wireless communications facility
City nonetheless denied the permit, concluding that the that is not in such close proximity to
Church site was not the least intrusive means of closing residences. T-Mobile also offers an
the gap. in-home service technology that provides
Page 9 572 F.3d 987; 2009 U.S. App. LEXIS 15924, X24;
48 Comm. Reg. (P & F) 244
another alternative for "in-structure" have to bear." 11 The consultant concluded that cellular telephoneservice. If T-Mobile "T-Mobile has chosen the best possible location to
constructed a wireless communications improve the radio coverage of their PCS GSM network
facility at one or more of the alternate and that few, if any, viable alternative locations exist for
single sites or two-site alternatives, a T-Mobile in vicinity of their proposed location."
significant gap in T-Mobile's service
coverage would no longer exist, even 11 The consultant further noted that "[e]ach site
though that coverage would not be would have to have a sufficiently large coverage
identical to that provided by a tower at the footprint to generate enough traffic to pay back
2201 "H" Avenue site. the wireless carrier's investment in the site as well as to defray the ongoing expenses to operate the
site."
Initially, we agree with the district court that
T-Mobile's in-home service technology T-Mobile did not rest on the consultant's equivocal
(HotSpot@Home) is not relevant to a determination of report, but presented the City with evidence showing that
the least intrusive means. This service is not a global most, if not all, of the possible alternative sites were not
system for mobile communications ("GSM"), must be available. T-Mobile told the Planning Commission that
separately purchased by individual customers, requires a the Police Chief had said that an antenna adjacent to the broadband Internet connection, and only works within the police headquarters
would never be approved "due to the
homes of subscribing customers. Accordingly, the proximity to the hospital across the street and the flight
availability of HotSpot@Home has no effect on the patterns of emergency helicopters," [~27] and because a
significant gap [~25] in T-Mobile's cell phone coverage tall antenna "would meet with great resistence due to the
of Anacortes, which it offers in competition with other views from the west looking east and the lack of trees in
cell phone service providers. the area to screen a taller pole." T-Mobile also asserts that
because the National Guard site is next to the police
We next consider the adequacy and technological station, these concerns preclude the placement of an feasibility of the six alternatives advanced by the City. antenna there.
The City's consultant noted four single antenna
alternatives: (1) Anacortes Middle School, (2) Anacortes Moreover, it is questionable whether any public
Police Headquarters, (3) Washington National Guard school site was available. T-Mobile's first choice for the
Building, and (4) Island View Elementary School. location of a WCF was Anacortes High School. It entered
However, the consultant noted that these alternatives "are into negotiations with the school district, but the school
all lower in ground elevation, would require at least the district declined its proposal. The City argues, however,
same antenna height and would have somewhat lower that during the application process, the school district
signal levels in the resident areas that are at the northern indicated that it would consider allowing T-Mobile's and western portions of T-Mobile's coverage area of facility at the
high school, and that T-Mobile improperly
interest." The consultant also found two two-site declined to pursue this option asserting that it came too
combinations that "could work from an RF coverage late in the process. T-Mobile responds that because the
perspective a combination of the city water tank at the school district had multiple grounds for declining its
end of 29th St ...with either the Whitney Elementary initial offer, further negotiations with the school district
School (12th St & M Ave) or the Guemes Island were not likely to be fruitful.
communications tower." He noted that use of the Guemes „ Finally, T-Mobile asserts that the two-site
Island communications tower would have the advantage
of improving T-Mobile's coverage along Oakes Avenue combinations are not feasible because "there is no and the San Juan Islands ferry docking." However, he evidence on the record indicating
that T-Mobile would
also commented [~26] that a "two-site solution may not have access to or be approved [~28] to use the 'Guemes
be feasible because it would require two sites be Island' site." It further asserts that Guemes Island "is
constructed instead of one, which would raise both the within the jurisdiction of Skagit County, and the City has
impact of the WCF's on the community as well as the no jurisdiction to determine whether a facility there
construction and operational costs that T-Mobile would would be permitted."
Page 10 572 F.3d 987; 2009 U.S. App. LEXIS 15924, X28;
48 Comm. Reg. (P & F) 244
The issue then is whether the City's claim that school 12 T-Mobile presented testimony to the Planning sites and Guemes Island are available is sufficient to Commission that it had approached
thousands of
allow it to decline T-Mobile's proposal. We approach this school boards about locating WCFs on their
issue by applying the standard set forth in Sprint IL We properties, and that where there is opposition in
must determine whether T-Mobile has shown "an the community to the construction of a WCF,
effective prohibition on the provision of such opposition is likely to be intensified if the
telecommunications services," or only that the denial of proposed location of the WCF is on school
its application "could potentially prohibit the provision of property.
telecommunications services." Sprint II, 543 F.3d at 579.
Furthermore, the determination should be made in a The alternative of the combination of the city water manner that allows "for a meaningful comparison of tank and the Guemes Island
communication tower
alternative sites before the siting application is needlessly presents a closer question. The City offered to allow
repeated," and "gives providers an incentive to choose the T-Mobile access to the water tank free of charge, and
least intrusive site in their first siting applications." T-Mobile did not really deny that it could use the Guemes
MetroPCS, 400 F.3d at 735. Island communications tower. 13 Accordingly, unlike the
other alternatives, this combination may have been
As we have previously indicated, the provider has viable. However, in light of the environmental impact and
the burden of showing that the denial of its proposal will additional costs identified by the City's own consultant as effectively prohibit the provision of services. Sprint II, being
inherent in the two-site [~31] combination, as well
543 F.3d at 579. A provider [~29] makes a prima facie as the City's failure to present any evidence concerning
showing of effective prohibition by submitting a the availability of the Guemes Island communications
comprehensive application, which includes consideration tower, we do not think that the possible viability of this
of alternatives, showing that the proposed WCF is the combination defeats T-Mobile's showing that the Church
least intrusive means of filing a significant gap. A locality site is the least intrusive means of closing its significant
is not compelled to accept the provider's representations. gap. 14 We conclude that T-Mobile made a prima facie
However, when a locality rejects a prima facie showing, showing that placing its WCF on the Church site was the
it must show that there are some potentially available and least intrusive means of closing its significant gap in technologically feasible alternatives. The provider should service
coverage and that the City's denial of the
then have an opportunity to dispute the availability and application without showing the existence of some
feasibility of the alternatives favored by the locality. potentially available and technically feasible alternative
constituted an effective prohibition of service, which the
Here, the City has failed to show that there are any district court properly enjoined.
available alternatives. The possibility of locating a WCF
at the high school or any other public school in Anacortes 13 The fact that the communications tower is not
is too speculative to be considered a viable alternative. In within the City of Anacortes does not appear to be declining to entertain T-Mobile's proposal to locate the relevant to the
question of whether the site is
WCF at the high school, the school district cited three available.
reasons: "upsetting our neighbors, allowing T-Mobile 14 Because of our determination that the City
total 24/7 access to our high school site, [and] failed to show that the Guemes Island
committing the property to this particular 'long term' communications tower was available, we need not
project." It is by no means clear that an increase in consider T-Mobile's claim that the two-site
compensation by T-Mobile would overcome any of these combination would not close the significant gap
concerns. [~30] In light of the opposition to the Church in its service.
site, and T-Mobile's experience in other localities, 12 no school site appeared to be sufficiently available to Because we conclude that the City failed to show
support the denial of T-Mobile's Church site application that there were any available alternative [~32] sites, we
in favor of forcing T-Mobile to pursue a new application need not determine whether the proposed alternative sites
with the school district in order to close the significant would have provided sufficient coverage to close the gap
gap in its coverage. in T-Mobile's coverage. We would address this issue in
the same manner as we addressed the availability of
Page 11 572 F.3d 987; 2009 U.S. App. LEXIS 15924, X32;
48 Comm. Reg. (P & F) 244
alternative sites. The provider's application would have to 332(c)(7)(B)(i)(II). show how the proposed site would close the gap,
supported by data showing the coverage afforded by V•
other sites. The locality could then investigate and
determine whether the provider's representations were The TCA requires that courts, when reviewing a
sound and persuasive. The provider would then have an locality's denial of an application to a wireless
opportunity to reply to the locality's challenges. communications facility, balance local concerns over the specific locations of such facilities with the national
Indeed, this is how T-Mobile and the City proceeded purpose of providing telecommunication services to all
in this case. T-Mobile supported its application with consumers. Following the procedure we set out in
considerable data showing the coverage of the Church 1VletroPCS, 400 F.3 d at 724, we first considered whether
site and the other alternatives. The City responded by there was substantial evidence to support the City's denial
questioning some of T-Mobile's data and arguing that of the special use permit under the applicable state and
T-Mobile's propagation maps did not delineate the local laws. Because we concluded that there was
coverages offered by the alternatives when combined substantial evidence to support the denial under the
with T-Mobile's existing WCFs. The resolution of this AMC, we then considered whether the denial violates 47
disagreement over the adequacy of the propagation maps U.S.C. § 332(c)(7)(B)(i)(II) [~34] by prohibiting or
and the potential coverage of alternative sites is not having the effect of prohibiting the provision of personal necessary because we have determined that the City wireless services.
See Sprint II, 543 F.3d at 579.
failed to show [~33] that any alternative sites were T-Mobile made a prima facie showing that its proposed
available. location was the least intrusive means to close the
admitted significant gap in coverage by including in its
In sum, applying our statement in Sprint II that a application an analysis of eighteen alternative sites.
plaintiff must establish "an effective prohibition on the Although the City was not required to accept the
provision of telecommunications services," 543 F.3d at provider's representations, in order to avoid violating §
579, we conclude that T-Mobile's application made a 332(c)(7)(B), the City was required to show the existence prima facie showing of effective prohibition, and that the of some potentially
available and technologically feasible
City in denying the application failed to show that there alternative to the proposed location. Because the City has
were any potentially available and feasible alternatives to failed to do so, the district court's grant of summary
the Church site. Accordingly, the City's denial of judgment in favor of T-Mobile is AFFIRMED.
T-Mobile's application violates 47 U.S.C. §
ATTACHMENT
Comcast - 2009 Reports and Notices
2009 Cable Franchise Administration Report 1/14/2010
4
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Dear ~n~i~er:
n ~c~ar~nce i~h air fr~nc~i~ ~reen~ent v~~h ~e ofuburn, l~a~ end enc~a~~
~h~ franc~ie ~e~ repar~ ~~r ~~rc~ aver OD. Tie ire repar~ed ~~re~n ~~a~~d be
coni~ent v~i~h ~~e ranc~i~~~ ~'e peck tau rece~~~~ from o~.r ~arparat~ office in ~n~er,
o~orada.
yap have any ~uet~on a~a~.~ Maur franc~re fec check or the a~t~chc~ re~ar~, icae
fce~ ~`re~ ~a con~ac~ nee a~ X42} ~i-7~
Ann ~ensan
Frneh~e on~r~c~ ~~minitr~~ar
an~ca~ - . ~~r~e~
Encl.
cc. Dn~c~~c as~an~~ its of ~.~~~rn
.~ane~ • Toren, an~c5~
la~C~~S, an~~~~
Terry D~.~i, on~c~
r~d~ey u~~e~~a,
Q~ERATO~r City of ~l~brirn Comr~~t ~~riod From ~~~Jo9- ~J~0~~9
~~$~~.`~5t~t`~Aii
n~wr ~~.WA ~~0~7.~..: F NCH~E FEE ~~YMENT iN R#f ~E ~ r.................... - ~ Q
I~iV~f llN1T PRICiw MO[~TFIS Ii<[ CRDSS i=E ~!fl i*RAC~ISE '~T~
REVENi.JE 5aRCiY SAVE OF A~R~ EACN MO PERIQD REVENUE FEE
Instaiitior~w~Inciuding Di~i~al~ 98~ 3 47,~07.8b ~,364.8~ 7,160,3
Rate turd Px~te S13,s~,:.;:.: LIC~lited Cabie ~erv~ce'~ 17,450 $1120 3 a~86~5~.~.54 5 ~~,3~~.43 86,173.7
~::.:~~:s~~.~.:.~.'..: E~cpanded Cable Service* X34.74 3 I.,389,2~9.63 ~ 7,463,48 ~41~43b.9~
t~~s,s~ Speciai In~er~5t ~~!gita~~** 15,070 X16,40 ~ 741,46.68 5 3,072.83 1~1r350.10 s~r~s FiB~ Customers 2,98
s~~. ~howtime Customers 1,43
~~x Cinemax Customers 75b ~~z.~ TMC Customer 620
s~~, Start! Customers 2,28
stt;.ss Enc~ Customers 143 Toil Premium 7F627 X9.67 3 721,29~.8~ ~ 11,Qb4,54 33,~77.~6
~.9~S~,~s Pay-Per-View 10,981 X6.47` ~ 213x135.94 5 10,65&~8~ 3,826,18
5~,~ Standard Converters 0
~~o ~►ddressable Converters 18 s~~zot~sa.a~ I~igitai Converters 23,521
~a~ Remote units 22,963
Taal Equipment 4bx507 X0.07 3 9,1.89F73 ~ 459.49 546.57
TOTAL SE~VIC~~I~SI'A~.L INCOME ~,4~8,ib9~~0 ~ 170x4u~.46 ~~.1x4~v.98
Rdvertisinq Revenue X81,535.81 7x06, I ~ 23,510.78 Shopping Servitres 32x577.85 5 ~,626.1~ 4,836.6
guides 346 ~3~57 3 3,703~~5 5 185.16 X26.73
Late Fees 33x520.97 1,576.D5 4,773.70 iwlist:ellaneous 25,177.40 5 x,258.87 7,890,62
TOTAi. NCH-Sk~B~CRIBER If~C~3NiE 2J6x459.39 5 13,$22~9~ 36,58843
Refund5J~d ~e~}~ ~85,938~21) J ~~x2~~.~'~~ ~11~337.27}
Pius Bad D~~t Recovery 0.00 5
~A~ p~~T ~85,938~71) 5 ~4x29b.94) ~11,3~7.7~)
Tt3TA~ RE'~~~~~~ 3,5~~,b8~.88 5 X79,934.49 536,2'32.19
Franchise Fee Revenue 139x505.54 5 6,75,28 70954.53 A[~ju5tmen~~ 5 0,00
TOTAL CITY' 3,738x195F42 5 ~8~~~~9.71 55',6$6.72
E~Pb~N~T~~~ NOTE:
*A1f:~.iit~d:apd; cpar.Bas,Stsrv:,rep~ a t~ed.s Surd ~bie~Bit'I;~~e`b~oi~ u...... r~ven~e i'or:Ui~it~I diti 0i~~5:~s.~eii as t~I~Ca~tmetciai ditionai ~t3ti`::~:::::::::;.:::;:::: ~
Send to; Prepared ay: Ann ~venssan
City ~ A~~r
Title: Franchise Contrasts Rdministrator
gate: ~7-Opt-09
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Inforr~.a~~o~ erv~ce D~reetar
~t of Ar~hr~
~ ie~ airy t
A.~b, OVA ~8aa ~
iJ ~k ~.elTl~her.
are ~rr~t~n to ~n'arm tau ~ht the f~na~ tee ire a~eat' net~vark enhaneee~t in .u~~ ill
take ~~ace dram ecen~~er ~~ra~uh eeerr~ber ~ 0,
This ~an~ t~a~ cuctamer~ ~~~1 ~e~. t~ ~ at~en~~e~~~ ~ev~ce, ~uc~ a~ a di
bay, €~~~t~~ aa~er, r ~~~AD ~ta~r each e~ev~~~a~ a~ ~c~ ~~e ~vi~~ ~a aie~v ~
c~n~,el a~~~r ~h~~, eh~~el~ ~~aa~ca nano,
uto~ner phase teevi~ian da nat an a~~he~~ieat~r~ dev~ee ~eeem~er ~~0~ ~v~~l
~e Abe to view ehare ~-~9, and 99. ~ arer to vie y ehan~e~ a~~er than thane
b~-aadt in ana~a, a~ a~then~ieat~ng device ~ noted agave ~ re~n~re~.
A a~v~a~, ~f you have and ~uet~ar~~ or ea~eer~.~, ~~eae oat hesitate ~a eantact ~ at ~ ~
~S~-7~~.
~cere~y,
Ter~~r av~
~~rectar, Frar~eh~~r~ and overr~.er~t Af~'a~r~
~e.
cc: Janet . ~~en} `ar~et
den .hoads, arca~t
~e~i eley, pity a~ A~uh~rn
~r~d~e~ u~~etta, ~
.Despite the Increased eo~t of doing business, Can~east has eor~tlnr~ed to add value to our servlees. Far
e~an~p~e, in the past year vie hare:
~ Added more spars eantent including the SBA, ~ and P~ to our Digital preferred
ser~iee tier, giving customers access to tap spirts Teague pragrran~in,
~ Added up to i a channels in our all-digital markets, increasing the lineup an Digital starter service
with networks such as ~~aar~berg# ~N, A 3, praut, 4, ~allrnark avie channel and
~istary ~nternatianai.
~ Fravided nee convened ser~riees like universal faller ~D to the T ar~d the P that e deliver
across ail three p~tfarms ATV, P, and phone} at na additional charge.
~ antinuall~r enhanced the eustarner experience through better, mare integrated products and an improved customer experience at aIi ~evel~.
attached i our updated service and price fist ef~"eetive October ~a~9, ~f gnu have and questions or need
rr~are infarrnatian about these ehanes# please reel free to call zne directly at ~~3} ~$~-749~~
incerei~r,
Terry Davy
Director, Franchising and O~verr~rnent Affairs
nc.
ec: Janet . ~'urpen, an~aat
den ~haades, on~cast
Dennis eley, Oity~ of Auburn
~radle~ u~zetta, L~