HomeMy WebLinkAboutComcast Auburn Franchise Administration Report 2009
2009 Cable Franchise Administration Report City of Auburn, Washington Prepared By: Michael R. Bradley (253) 931-4753 January 14, 2010
Page 2 1/14/2010 2009 Cable Franchise Administration Report 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 a senior/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 a digital-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 3 1/14/2010 2009 Cable Franchise Administration Report 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 MetroPCS, 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 4 1/14/2010 2009 Cable Franchise Administration Report • 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 join 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 5 1/14/2010 2009 Cable Franchise Administration Report 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
1/14/2010 2009 Cable Franchise Administration Report ATTACHMENT 2009 Telephone Log
and certified for Comcast by email. 1-12-09 Robert Simms 253-833-6263 Mr. Robert Simms 5320 S 372 St Auburn, WA 98001 MRB: Mr. Simms called and left contact information on voice mail.
Sent discount app. via US mail. 1-13-09 Walt Lufkin 253-833-1119 Mr. Walter Lufkin 2302 R Street SE #10 Auburn, WA 98002 MRB: Daughter for Mr. Lufkin called requesting a discount app
form. Mailed to Mr. Lufkin. 1-13-09 Lorajo Sailors 253-833-3502 Ms. Lorajo Sailors 27 Pike Street NE Auburn, WA 98002 MRB: Phone call and mailed discount app. 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 42nd Place South Federal Way, WA 98001 MRB: Contacted Federal Way. 1-21-09 Joan Dwigans joandwigans@comcast. net MRB: Phone call with Ms. Dwigans. Sent discount
app via e-mail. 1-22-09 Marjorie Farney 253-833-7612 Ms. Marjorie Farney 315 J Street NE Auburn, WA 98002 MRB: Resident of Auburn for 45 years. Husband a Pearl Harbor Survivor. Sent
discount app by US Mail. MRB: 2-11-09 – 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
(cell) 253-735-4219 11804 SE 317th Place Auburn, WA 98092 Lewhumiston72@hotm ail.com MRB: Internet complaint. Needs new drop. Not getting what they paid for. Neighbor dug up yard 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 907 29th St SE Apt A Auburn, WA 98002 MRB: Referred to me via email from Comcast.
Spoke to Ms. Penn via phone and sent discount app to her via US mail. MRB: 1-30-09 – Received app via mail and certified to Comcast the same day via email. 2-4-09 Carol Belshaw 253-627-1324
253-941-8094 3814 S 306th Pl Auburn, WA 98001 MRB: Received VM from Ms. Belshaw. Returned call and left VM at her office. 2-5-09 Don Martin 253-351-6481 Mr. Don Martin 107 W Main St
#402 Auburn, WA 98001 MRB: Received VM from Mr. Martin. Returned call to answer. MRB – 2-6-09 returned call again and spoke to Mr. Martin. Mailed discount app via US mail. 2-17-09 Mary
Crosson 253-887-1109 Ms. Mary Crosson 1035 61st Street SE Unit 201 Auburn, WA 98092 MRB: Phone call with Ms. Crosson. Send discount form via US mail. 3-3-09 Richard Erickson 425-829-2234
3438 High Street NE # 2-203 Auburn, WA 98002 MRB: VM from Mr. Erickson. Send discount app to him by US Mail. 3-4-09 MRB: Answered questions about discount. 3-4-00 Alexandrea Savage 125
“A” Street NW #205 Auburn, WA 98001 MRB: E-mail from Jinelle Burt with contact information on Ms. Savage. Send form via US Mail. 3-6-09 Timothy McCoy 253-833-5900 Mr. Timothy McCoy 125
A St NW #201 Auburn, WA 98002. MRB: E-Mail from Jinelle Burt – Mr. McCoy came in and requested a form to apply for a Comcast discount as he is disabled. Send discount app via US Mail.
MRB: 4-6-09 -Certify discount
app via e-mail. 3-10-09 Marjorie Rommel 253-939-0571 253-833-4798 Marjorie.rommel@gmail.c om MRB: Phone call from Ms. Rommel. Sent discount app via e-mail. Sent e-mail to Comcast requesting
phone service. MRB: 4-6-09 – Certify discount app to Comcast via e-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 e-mail. 3-23-09 Heather Caufman 253-929-8904 Ms. Heather Caufman 32115 105th Place SE Apt. E-203 Auburn, WA 98092
ACCT # 8498340170345864 MRB: Received VM from Ms. Kaufman over the weekend. Send application to her via US Mail. MRB: 4-6-09 – Certify discount to Comcast. 3-24-09 Ione L. Hartzer 253-833-6416
Ms. Ione L. Hartzer 502 8th Street NE Apt 20 Auburn WA 98002 MRB: Phone call from son. Mailed out discount form via US Mail. 4-6-09 Shrirley R. Hart MRB: Receive and certify discount
app to Comcast via email. 4-6-09 Eugenie Guftason 253-737-4148 Ms. Eugenie Guftason 31600 126th Ave SE Space # 66 Auburn, WA 98092-3684 MRB: Return phone call to Ms. Guftason – leave
VM. 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@comcast.ne t MRB: Phone call from Mr. Manton – send
discount form by e-mail. 4-16-09 James Fuller Gregory Heisel 253-833-9939 Jwfuller65@q.com MRB: Sent discount app. via email. 4-17-09 Marilyn Hurlow 253-804-6742 mhurlow@msn.com MRB:
Send discount app via email. 4-24-09 Carol Brown 253-737-4623 Brown_cd@yahoo.com MRB: Send Discount app via email. 4-20-09 Marsha 253-939-4113 MRB: Return call on discount. 4-27-09 Sam
206-615-1183 Sammie_411@hotmail.co m MRB: Calling for parents -Send discount via e-mail. 4-29-09 Mike Chandler 253-833-4550 Mr. Mike Chandler 218 Hi Crest Drive Auburn, WA 98001-3840
Acct # 8498340210001089 MRB: Underground cable has deteriorated and signal is too weak. Cable needs to be replaced, but Comcast is claiming that customer needs to pay for the new line.
Customer very upset. Cable initially installed in 1973.
Comcast came out March 17, March 27 for first time and then again in April 425-918-1072 Nora 4-29-09 Mary Groshong 253-931-8889 marybgroshong@hotmail. com MRB: Phone call from Mary she
is a POA for an Auburn citizen and wanted the discount form. Sent via e-mail. 4-29-09 Alexandria Savage MRB: Following up on discount app. I certified it on 3-17-09 and she is getting
the discount. 5-1-09 Robert Benavidez 253-288-2030 1001 17th Ave SE Apt 601 Auburn, WA MRB: Field call. Mr. Benavidez taken off discount. Follow up with Comcast via e-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 hung up on me. 6-9-09 Reno Payne 253-333-0105 Mr. Reno Payne 125 A Street NW Unit 304 Auburn, WA 98001 MRB: Spoke to Mr. Payne
on the phone. Sent discount app via US Mail. 6-9-09 Elizabeth Cantil Ronald Cantil 253-737-5378 Ms. Elizabeth Cantil 1404 10th Street NE Auburn, WA 98002 MRB: Phone call with Ms. Cantil
and send discount app via US mail. MRB: 6-18-09 – Receive and certify discount to Comcast via email. 6-9-09 Dawn Arsenoe 253-929-6508 arsenauxatu@live.com Ms. Dawn Arsenauxatu 2436 Auburn
Way North Apt #5 Auburn, WA 98002 MRB: Return call re cable discount. Send discount app via e-mail MRB: Sent via US Mail 6-15-09 Carolyn Manley 253-941-1085 Ms. Carolyn Manley 29102
39th Avenue S Auburn, WA 98001 MRB: Send discount app via US mail. MRB: 7-10-09 Certify discount app to Comcast via e-mail. 6-16-09 Diane Ehle 253-833-0394 Ms. Diane Ehle 1516 G Street
SE Auburn, WA 98002 MRB: Send discount app via US mail. 6-18-09 Dorothy Chambers MRB: Receive discount app from Ms. Chambers and certify it to
Comcast via e-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. Karen Spalding 802 45th St. NE Apt 7-102 Auburn,WA
98002 MRB: Return Call – leave VM. MRB: 7-3-09 – receive VM MRB: 7-8-09 – Send discount form 6-17-09 Dolph Swanson 253-351-2978 Mr. Dolph H. Swanson 111 D St SW Auburn, WA 98001-5323
MRB: Receive call from Mr. Swanson – promotional discount 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 Mr. Swanson – says Comcast has not reinstated discount. E-mail Comcast to confirm. 7-24-09 Sandra Burnsome 253-833-2938 Ms. Sandra Burnsome 308 South Division
Street Auburn, WA 98001 MRB: Return call. 7-24-09 Betty Englehardt 253-735-4263 Ms. Betty Englehardt 30926 114th Lane SE Space 17 Auburn, WA 98092 MRB: Send discount app. MRB: 8-17-09
Certify discount to Comcast via e-mail 7-24-09 Katherine Kangara 206-571-0115 MRB: Discount question. 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 email. 7-31-09 Melany
253-740-0125 MRB: discount questions 7-31-09 Cynthia Procknow 206-437-8180 MRB: discount questions 8-3-09 Charles Anderson 206-402-1280 MRB: Discount question. 8-17-09 Elizabeth Helton
253-833-5577 MRB: Sent discount app. MRB: 8-24-09 – certified app to Comcast via e-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 e-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 Buckenberger 253-839-3253 MRB: Discount question. 10-1-09 Diana Stockstill 206-772-6631 MRB: Discount question. 10-1-09 Geradine Gronewold
253-833-3401 MRB: Certified discount app to Comcast via e-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 Cocmast 10-23-09
Anna Jensen MRB: Certify discount to Comcast 10-19-09 Betty J Moss 253-288-7632 MRB: Certify discount to Comcast
1/14/2010 2009 Cable Franchise Administration Report ATTACHMENT T-Mobile v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009).
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: [*1] Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:07-cv-01644-RAJ. Richard A. Jones, District Judge, Presiding.
T-Mobile USA, Inc. v. City of Anacortes, 2008 U.S. Dist. LEXIS 37481 (W.D. Wash., May 6, 2008) COUNSEL: Dan S. Lossing of Inslee, Best, Doezie & Ryder, P.S. of Bellevue, Washington,
for the defendant-appellant. T. Scott Thompson (argued) of Davis Wright Tremaine, LLP of Washington, D.C., and Linda Atkins of Bellevue, Washington, for the plaintiffs-appellees. JUDGES:
Before: William C. Canby, Jr., David R. Thompson and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Callahan. OPINION BY: Consuelo M. Callahan OPINION CALLAHAN, Circuit Judge:
The City of Anacortes (the "City") appeals the district court's determination that the City's denial of an application by T-Mobile USA, Inc. ("T-Mobile") to erect a 116-foot monopole
antenna at a particular location violates a provision of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B). The district court found that T-Mobile's proposal was the least
intrusive means to close a significant gap in its wireless service in the City, and that the City's denial was not supported by substantial evidence. We determine that, although the
district court did not have the benefit of our opinion in Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 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 district court nevertheless properly concluded that the City's denial of the
application violated § 332(c)(7)(B) because the City failed to rebut T-Mobile's showing that the denial of the application amounted to an effective prohibition of wireless services.
I. T-Mobile offers digital wireless voice, messaging and data services. It provides its services through a cellular radio telephone network which is comprised of thousands of cell antenna
sites, switching facilities and other network elements. The federal government assigns radio frequency ("RF") channels to each wireless carrier and the RF channels are assigned to the
cell sites to enable wireless communications. The district court noted: "[t]he limited number of RF channels must be reused at different cell sites, creating potential interference between
sites. To minimize such interference, all sites transmit at very low power, resulting in limited coverage from each site. The location of antenna sites is determined by terrain, structure
blockage, call volume, and antenna height." Page 1
In September [*3] 2006, in order to close a "service gap" and to expand its coverage in the City, T-Mobile applied for a permit to construct an additional wireless telecommunications
facility ("WCF") at a particular site: 2201 "H" Avenue, which is owned by the United Methodist Church (sometimes referred to as the "Church site"). The permit application analyzed eighteen
site alternatives and proposed the construction of a 116-foot monopole with three antennas at the top. The Anacortes Municipal Code ("AMC") regulates the permitting approval process.
T-Mobile's application was for a "special use permit" ("SUP"). 1 The AMC also provides that installation of a tower or antenna without a permit is a misdemeanor. 1 The AMC sets forth
eight factors the City must consider when deciding whether to grant a SUP: 1. the height of the proposed tower, 2. the proximity of the tower to residential structures and district boundaries,
3. the nature of uses on adjacent and nearby properties, 4. the surrounding topography, 5. the surrounding tree coverage and foliage, 6. the design of the tower (with emphasis on features
that reduce or eliminate visual obtrusiveness), 7. proposed ingress and egress, and 8. the availability of alternatives [*4] not requiring a tower. The City Planning Commission eventually
denied the application, and T-Mobile appealed to the City Council. The City Council held a hearing on the matter and following the meeting, voted to deny the application. On September
19, 2007, the City Council entered written findings of fact and conclusions of law denying the application. On the basis of the testimony of witnesses and other evidence before the City
Planning Commission and City Council, the City's written findings and conclusions explained that: The proposed wireless communications facility would have a commercial appearance and
would detract from the residential character and appearance of the surrounding neighborhood. The proposed wireless communications facility would not be compatible with the character
and and appearance of the existing development in the vicinity of 2201 "H" Avenue, which is predominantly single-family residences. The proposed wireless communications facility would
negatively impact the views from single-family residences in the vicinity of the proposed site. The City further stated that the predominant land use in the vicinity of the proposed
site was residential and that the "existing [*5] vegetation would not completely screen the proposed tower and the tower would be taller than the existing trees." The City also concluded
that "T-Mobile has not established that its proposal to locate a wireless communications facility tower at the 2201 'H' Avenue site is the 'least intrusive' on the values that the denial
of the application seeks to serve." It determined: At least four alternative single sites are potentially acceptable to provide coverage as required by T-Mobile, and at least two two-site
alternatives would work from an RF coverage perspective. These alternative sites are either on commercially or industrially zoned property, or would provide a site for [a] proposed wireless
communications facility that is not in such close proximity to residences. T-Mobile also offers an in-home service technology that provides another alternative for "in-structure" cellular
telephone service. If T-Mobile constructed a wireless communications Page 2 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *2; 48 Comm. Reg. (P & F) 244
facility at one or more of the alternate single sites or two-site alternatives, a significant gap in T-Mobile's service coverage would no longer exist, even though that coverage would
not be identical to that provided by a tower at the 2201 "H" [*6] Avenue site. II. On October 10, 2007, T-Mobile filed a complaint for declaratory and injunctive relief in the District
Court for the Western District of Washington, alleging violations of sections 253 and 332 of the Telecommunications Act ("TCA"), 47 U.S.C. §§ 253 and 332(c)(7)(B). The parties filed
cross-motions for summary judgment, and at a hearing held on April 25, 2008, agreed that no material facts were in dispute that might prevent the court from ruling on the respective
motions. On May 6, 2008, the district court granted T-Mobile summary judgment on its claim that the AMC, as it 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 Telephony PCS, L.P. v. County of San Diego, 490 F.3d
700 (9th Cir. 2007) ("Sprint I"). 2 The district court ordered the City to issue a permit allowing T-Mobile to construct the monopole. It also noted that in light of its resolution of
the § 253 preemption issue, it did not need to address the parties' arguments concerning § 332(c)(7). 2 The district court reasoned: The county ordinance challenged in Sprint [I] contains
similar provisions to [*7] the AMC provisions challenged in this case. Both add voluminous submission requirements to a multi-layer permitting process, both contain criminal penalties
for non-compliance, and both include subjective aesthetic and design requirements that vest significant discretion in the decision-making body. Shortly after the district court's order,
we agreed to rehear Sprint I en banc. The City then asked the district court to reconsider its order and to grant a stay of enforcement pending the resolution of the en banc proceedings
in Sprint I. T-Mobile opposed the City's requests and and also asked the district court to rule on its claims under § 332. On July 18, 2008, the district court denied the City's requests
for relief and ruled in favor of T-Mobile on its request for relief under § 332. The district court held: T-Mobile has shown that its proposal was the "least intrusive" means to close
the significant gap, based on its good-faith effort to identify less-intrusive alternatives. The City's conclusion to the contrary was not supported by substantial evidence. Because
the City prevented T-Mobile from closing a significant service gap through the "least intrusive" means available, the City's [*8] decision has the effect of prohibiting wireless service
in violation of Section 332(c)(7). On September 11, 2008, we issued our en banc opinion in Sprint II. The en banc panel disagreed with Sprint I and with the court's prior opinion in
City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001), and joined "the Eighth Circuit in holding that 'a plaintiff suing a municipality under section 253(a) must show actual or
effective prohibition, rather than the mere possibility of prohibition.'" 543 F.3d at 578 (quoting Level 3 Commc'ns, L.L.C. v. City of St. Louis, 477 F.3d 528, 532 (8th Cir. 2007)).
The parties then stipulated that Sprint II was controlling as to T-Mobile's claim under § 253, and agreed that the portion of the appeal concerning § 253 could be remanded to the district
court to allow T-Mobile to withdraw its claim under § 253. We issued an order effectuating the parties' stipulation. Thus, only the district court's grant of relief to T-Mobile pursuant
to 47 U.S.C. § 332 remains pending before us. III. 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 amend in scattered [*9] sections of U.S.C., Tabs 15, 18, Page 3 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *5; 48 Comm. Reg. (P & F) 244
47), and our efforts to discern and effectuate those purposes. When enacting the TCA, Congress expressed two sometimes contradictory purposes. First, it expressed its intent "to promote
competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications
technologies." 110 Stat. at 56. In Sprint II, we noted that Congress chose to "end the States' longstanding practice of granting and maintaining local exchange monopolies" and that it
did so by enacting 47 U.S.C. § 253. 3 543 F.3d at 576 (internal punctuation and citations omitted). 3 Section 253 reads, in relevant part: (a) In general No State or local statute or
regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications
service. (b) State regulatory authority Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this
title, requirements necessary to preserve and advance [*10] universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and
safeguard the rights of consumers. (c) State and local government authority Nothing in this section affects the authority of a State or local government to manage the public rights-of-way
or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory
basis, if the compensation required is publicly disclosed by such government. (d) Preemption If, after notice and an opportunity for public comment, the Commission determines that a
State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt preempt
the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. (e) Commercial mobile service providers Nothing
in this section shall affect the application of section 332(c)(3) of this title to commercial mobile service providers. Second, Congress was determined "to preserve [*11] the authority
of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement." Sprint II, 543 F.3d at 576 (internal punctuation
and citations omitted). This legislative purpose was reflected in the enactment of 47 U.S.C. § 332(c)(7). 4 "Section 332(c)(7)(A) preserves the authority of local governments over zoning
decisions regarding the placement and construction of wireless service facilities, subject to enumerated limitations in § 332(c)(7)(B). One such limitation is that local regulations
"shall not prohibit or have the effect of prohibiting the provision of personal wireless services." Sprint II, 543 F.3d at 576. 4 Subsection 332(c)(7) reads: (7) Preservation of local
zoning authority Page 4 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *9; 48 Comm. Reg. (P & F) 244
(A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a 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 any State or local [*12] government or instrumentality thereof--(I) shall not unreasonably discriminate among providers of functionally equivalent
services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall
act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such
government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request
to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government
or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. (v) Any person adversely affected by any final [*13] action or failure
to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an
action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State
or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (emphasis added). In MetroPCS, Inc. v. City of San Francisco,
400 F.3d 715 (9th Cir. 2005), we considered the requirement in § 332(c) that a local zoning decision be "supported by substantial evidence." Id. at 723-26 (discussing 47 U.S.C. § 332(c)(7)(B)(iii)).
We noted that although the term "substantial evidence" was not defined in the TCA, there appeared to be "universal agreement among the circuits as to the substantive content of this
requirement" --"this language is meant to trigger 'the traditional standard used for judicial review of agency decisions.'" Id. at 723 (internal citation omitted). Furthermore, "the
substantial evidence inquiry does not require incorporation of the [*14] substantive federal standards imposed by the TCA, but instead requires a determination whether the zoning decision
at issue is supported by substantial evidence in the context of applicable state and local law." Id. at Page 5 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *11; 48 Comm. Reg. (P & F) 244
723-24. "In other words, we must take applicable state and local regulations as we find them and evaluate the City decision's evidentiary support (or lack thereof) relative to those
regulations. If the decision fails that test it, of course, is invalid even before the application of the TCA's federal standards." Id. at 724. We commented that this approach "enables
us to avoid unnecessarily reaching the federal questions of whether a zoning decision violates the substantive provisions of the TCA," and noted that "in most cases, only when a locality
applies the regulation to a particular permit application and reaches a decision --which it supports with substantial evidence --can a court determine whether the TCA has been violated."
Id. Sprint II concerned a facial challenge to a local zoning ordinance under § 253 of the TCA. 543 F.3d at 574. The en banc court generally agreed with the standards set forth in MetroPCS,
and in doing so moved away from the more "procedural" [*15] standard we had endorsed in Sprint I and Auburn. 5 It overruled Auburn and joined "the Eighth Circuit in holding that 'a plaintiff
suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.'" Sprint II, 543 F.3d at 578 (quoting Level 3 Commc'ns,
477 F.3d at 532). 5 In Auburn, we held that the municipal regulations at issue "were preempted because they imposed procedural requirements, charged fees, authorized civil and criminal
penalties, and --'the ultimate cudgel' --reserved discretion to the city to grant, deny, or revoke the telecommunications franchises." 543 F.3d at 577 (internal citation omitted). The
en banc court noted that its approach to § 253 was "buttressed" by our interpretation of § 332(c). Id. It explained that in "MetroPCS, to construe § 332(c)(7)(B)(i)(II), we focused on
the actual effects of the city's ordinance, not on what effects the ordinance might possibly allow." Id. The en banc court concluded: Our holding today therefore harmonizes our interpretations
of the identical relevant text in §§ 253(a) and 332(c)(7)(B)(i)(II). Under both, a plaintiff must establish either an outright prohibition [*16] or an effective prohibition on the provision
of telecommunications services; a plaintiff 's showing that a locality could potentially prohibit the provision of telecommunications services is insufficient. Id. at 579 (footnote omitted)
(emphasis added). Although Sprint II concerned a facial challenge to a local ordinance pursuant to § 253, its statements as to what a plaintiff service provider had to show provide guidance
for our resolution of this as-applied challenge to the City's denial of a permit pursuant to § 332. For instance, we noted: A certain level of discretion is involved in evaluating any
application for a zoning permit. It is certainly true that a zoning board could exercise its discretion to effectively prohibit the provision of wireless services, but it is equally
true (and more likely) that a zoning board would exercise its discretion only to balance the competing goals of an ordinance --the provision of wireless services and other valid public
goals such as safety and aesthetics. 543 F.3d at 580. We also noted that the plaintiff had "not identified a single requirement that effectively prohibits it from providing wireless
services," commenting that "[o]n the face of [*17] the Ordinance, requiring a certain amount of camouflage, modest setbacks, and maintenance of the facility are reasonable and responsible
conditions for the construction of wireless facilities, not an effective prohibition." 6 Id. 6 We also gave several examples of what restrictions could be facially challenged. If an
ordinance required, for instance, that all facilities be underground and the plaintiff introduced evidence that, to operate, wireless facilities must be above ground, the ordinance would
effectively prohibit it from providing services. Or, if an ordinance mandated that no wireless facilities be located within one mile of a road, a plaintiff could Page 6 572 F.F.3d 987;
2009 U.S. App. LEXIS 15924, *14; 48 Comm. Reg. (P & F) 244
show that, because of the number and location of roads, the rule constituted an effective prohibition. 543 F.3d at 580. IV. With the benefit of our en banc opinion in Sprint II, we review
the district court's order holding that the City's denial of the permit violates § 332(c). We review the district court's grant of summary judgment de novo. MetroPCS, 400 F.3d at 720.
Moreover, as suggested in MetroPCS, we first consider whether the City's denial under the AMC is supported by substantial evidence. Id. at 724. Determining that the denial [*18] is supported
by substantial evidence under the applicable local laws, we then consider whether the denial violates § 332(c). We conclude that because the City failed to adequately rebut T-Mobile's
prima facie showing that no other location was available and feasible, the district court properly found that the denial of the permit constituted an effective prohibition of coverage.
A. The City's denial of the application was supported by substantial evidence. The AMC provides that when considering a special use permit, the City may consider a number of factors
including the height of the proposed tower, the proximity of the tower to residential structures, the nature of uses on adjacent and nearby properties, the surrounding topography, and
the surrounding tree coverage and foliage. 7 We, and other courts, have held that these are legitimate concerns for a locality. Sprint II, 543 F.3d at 580 (stating that the zoning board
may consider "other valid public goals such as safety and aesthetics"); see also T-Mobile Cent., LLC v. Unified Gov't of Wyandotte County, Kan., 546 F.3d 1299, 1312 (10th Cir. 2008)
(noting that "aesthetics can be a valid ground for local zoning decisions"); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) [*19] (recognizing that "aesthetic
concerns can be a valid basis for zoning decisions"); Voice Stream PCS I, LLC v. City of Hillsboro, 301 F. Supp. 2d 1251, 1255 (D. Or. 2004). 8 7 The AMC also provides for consideration
of "the the availability of alternatives not requiring a tower." The record does not indicate that any such alternatives existed. 8 In Voice Stream, the district court observed: [u]nder
the TCA, the board is entitled to make an aesthetic judgment as long as the judgment is "grounded in the specifics of the case," and does not evince merely an aesthetic opposition to
cellphone towers in general. . . . Accordingly, when the evidence specifically focuses on the adverse visual impact of the tower at the particular location at issue more than a mere
scintilla of evidence generally will exist. 301 F. Supp. 2d at 1258 (internal citations omitted). There was substantial evidence concerning these factors. A number of residents claimed
that the monopole would have a detrimental impact on the surrounding residential property, that the pole would not be completely screened, and that it would interfere with residents'
views of the Cascade Mountains and other scenic views. This evidence is "more [*20] than a scintilla of evidence," and accordingly the district court should have deferred to the City's
determination that the evidence was adequate to support its denial of the application under the AMC. See MetroPCS, 400 F.3d at 725 (stating that "this Court may not overturn the Board's
decision on 'substantial evidence' grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence"). B. The City did not rebut
T-Mobile's showing that the denial of the application constituted an effective prohibition of services. 1. Under the least intrusive means standard, the provider has the burden of showing
the lack of available and technologically feasible alternatives. In MetroPCS, we recognized that a locality could violate the TCA's effective prohibition clause if it prevented a wireless
provider from closing a "significant gap" in service coverage. 400 F.3d at 731. Such a claim generally "involves a two-pronged analysis requiring (1) the showing of a "significant gap"
in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations." Id. Here, the City concedes Page 7 572 F.3d 987; 2009 U.S. App. LEXIS 15924,
*17; 48 Comm. Reg. (P & F) 244
that there is a "significant gap" in [*21] T-Mobile's services in Anacortes. 9 Once the provider has demonstrated the requisite gap, the issue becomes what showing a provider must make
in support of its proposed means of closing the gap. Id. at 734. 9 In MetroPCS, we "formally adopt[ed] the First Circuit's rule that a significant gap in service (and thus an effective
prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage." 400 F.3d at 733. In MetroPCS, we adopted the "least intrusive
means" standard used by the Second and Third Circuit. 400 F.3d at 734 (citing ATP Pittsburgh, L.P. v. Penn Twp., 196 F.3d 469, 480 (3d Cir. 1999); Omnipoint Commc'ns Enters., L.P. v.
Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 398 (3d Cir. 2003); Nextel West Corp. v. Unity Twp., 282 F.3d 257, 266 (3d Cir. 2002); and Sprint Spectrum L.P. v. Willoth, 176 F.3d
630, 642 (2d Cir. 1999)). This standard requires that the provider "show that the manner in which it proposes to fill the significant gap in services is the least intrusive on the values
that the denial sought to serve." MetroPCS, 400 F.3d at 734 [*22] (internal quotation marks and citation omitted). We noted that this standard: allows for a meaningful comparison of
alternative sites before the siting application process is needlessly repeated. It also gives providers an incentive to choose the least intrusive site in their first siting applications,
and it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials. Id. at 734-35. Our opinion in MetroPCS
concluded by instructing the district court to apply the "least intrusive means" standard "in its consideration of the prohibition issue on remand." Id. Here, T-Mobile, cognizant of
the "least intrusive means" standard, submitted a detailed permit application that included an analysis of eighteen alternative sites. The City nonetheless denied the permit, concluding
that the the Church site was not the least intrusive means of closing the gap. Where, as here, there is more than a scintilla of evidence to support a locality's disapproval of a particular
site for a WCF, a court's determination of whether the denial violates the TCA turns on an evaluation of the availability and technological feasibility of the [*23] alternatives. We
read MetroPCS and Sprint II as holding that the provider has the burden of showing the lack of available and technologically feasible alternatives. 10 See Sprint II, 543 F.3d at 579;
MetroPCS, 400 F.3d at 734. 10 The Third Circuit appears to agree. It noted: the provider applicant must also show that the manner in which it proposes to fill the significant gap in
service is the least intrusive on the values that the denial sought to serve. This will require a showing that a good faith effort has been made to identify and evaluate less intrusive
alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennae on existing structures, etc. Penn
Twp., 196 F.3d at 480. 2. The City failed to rebut T-Mobile's showing of a lack of available and feasible alternative sites. In determining whether T-Mobile met its burden of demonstrating
that the Church site was the "least intrusive means," we examine the City's stated ground for concluding otherwise. The City's findings and conclusions stated: At least four alternative
single sites are potentially acceptable to provide coverage as required by T-Mobile, [*24] and at least two two-site alternatives would work from an RF coverage perspective. These alternative
sites are either on commercially or industrially zoned property, or would provide a site for proposed wireless communications facility that is not in such close proximity to residences.
T-Mobile also offers an in-home service technology that provides Page 8 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *20; 48 Comm. Reg. (P & F) 244
another alternative for "in-structure" cellular telephoneservice. If T-Mobile constructed a wireless communications facility at one or more of the alternate single sites or two-site
alternatives, a significant gap in T-Mobile's service coverage would no longer exist, even though that coverage would not be identical to that provided by a tower at the 2201 "H" Avenue
site. Initially, we agree with the district court that T-Mobile's in-home service technology (HotSpot@Home) is not relevant to a determination of the least intrusive means. This service
is not a global system for mobile communications ("GSM"), must be separately purchased by individual customers, requires a broadband Internet connection, and only works within the homes
of subscribing customers. Accordingly, the availability of HotSpot@Home has no effect on the significant gap [*25] in T-Mobile's cell phone coverage of Anacortes, which it offers in
competition with other cell phone service providers. We next consider the adequacy and technological technological feasibility of the six alternatives advanced by the City. The City's
consultant noted four single antenna alternatives: (1) Anacortes Middle School, (2) Anacortes Police Headquarters, (3) Washington National Guard Building, and (4) Island View Elementary
School. However, the consultant noted that these alternatives "are all lower in ground elevation, would require at least the same antenna height and would have somewhat lower signal
levels in the resident areas that are at the northern and western portions of T-Mobile's coverage area of interest." The consultant also found two two-site combinations that "could work
from an RF coverage perspective . . . a combination of the city water tank at the end of 29th St . . . with either the Whitney Elementary School (12th St & M Ave) or the Guemes Island
communications tower." He noted that use of the Guemes Island communications tower "would have the advantage of improving T-Mobile's coverage along Oakes Avenue and the San Juan Islands
ferry docking." docking." However, he also commented [*26] that a "two-site solution may not be feasible because it would require two sites be constructed instead of one, which would
raise both the impact of the WCF's on the community as well as the construction and operational costs that T-Mobile would have to bear." 11 The consultant concluded that "T-Mobile has
chosen the best possible location . . . to improve the radio coverage of their PCS GSM network and that few, if any, viable alternative locations exist for T-Mobile in vicinity of their
proposed location." 11 The consultant further noted that "[e]ach site would have to have a sufficiently large coverage footprint to generate enough traffic to pay back the wireless carrier's
investment in the site as well as to defray the ongoing expenses to operate the site." T-Mobile did not rest on the consultant's equivocal report, but presented the City with evidence
showing that most, if not all, of the possible alternative sites were not available. T-Mobile told the Planning Commission that the Police Chief had said that an antenna adjacent to
the police headquarters would never be approved "due to the proximity to the hospital across the street and the flight patterns of emergency helicopters," [*27] and because a tall antenna
"would meet with great resistence due to the views from the west looking east and the lack of trees in the area to screen a taller pole." T-Mobile also asserts that because the National
Guard site is next to the police station, these concerns preclude the placement of an antenna there. Moreover, it is questionable whether any public school site was available. T-Mobile's
first choice for the location of a WCF was Anacortes High School. It entered into negotiations with the school district, but the school district declined its proposal. The City argues,
however, that during the application process, the school district indicated that it would consider allowing T-Mobile's facility at the high school, and that T-Mobile improperly declined
to pursue this option asserting that it came too late in the process. T-Mobile responds that because the school district had multiple grounds for declining its initial offer, further
negotiations with the school district were not likely to be fruitful. Finally, T-Mobile asserts that the two-site combinations are not feasible because "there is no evidence on the record
indicating that T-Mobile would have access to or be approved [*28] to use the 'Guemes Island' site." It further asserts that Guemes Island "is within the jurisdiction of Skagit County,
and the City has no jurisdiction to determine whether a facility there would be permitted." Page 9 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *24; 48 Comm. Reg. (P & F) 244
The issue then is whether the City's claim that school sites and Guemes Island are available is sufficient to allow it to decline T-Mobile's proposal. We approach this issue by applying
the standard set forth in Sprint II. We must determine whether T-Mobile has shown "an effective prohibition on the provision of telecommunications services," or only that the denial
of its application "could potentially prohibit the provision of telecommunications services." Sprint II, 543 F.3d at 579. Furthermore, the determination should be made in a manner that
allows "for a meaningful comparison of alternative sites before the siting application is needlessly repeated," and "gives providers an incentive to choose the least intrusive site in
their first siting applications." MetroPCS, 400 F.3d at 735. As we have previously indicated, the provider has the burden of showing that the denial of its proposal will effectively
prohibit the provision of services. Sprint II, 543 F.3d at 579. A provider [*29] makes a prima facie showing of effective prohibition by submitting a comprehensive application, which
includes consideration of alternatives, showing that the proposed WCF is the least intrusive means of filing a significant gap. A locality is not compelled to accept the provider's representations.
However, when a locality rejects a prima facie showing, it must show that there are some potentially available and technologically feasible alternatives. The provider should then have
an opportunity to dispute the availability and feasibility of the alternatives favored by the locality. Here, the City has failed to show that there are any available alternatives. The
possibility of locating a WCF at the high school or any other public school in Anacortes is too speculative to be considered a viable alternative. In declining to entertain T-Mobile's
proposal to locate the WCF at the high school, the school district cited three reasons: "upsetting our neighbors, allowing T-Mobile total 24/7 access to our high school site, [and] committing
the property to this particular 'long term' project."
It is by no means clear that an increase in compensation by T-Mobile would overcome any of these concerns. [*30] In light of the opposition to the Church site, and T-Mobile's experience
in other localities, 12 no school site appeared to be sufficiently available to support the denial of T-Mobile's Church site application in favor of forcing T-Mobile to pursue a new
application with the school district in order to close the significant gap in its coverage. 12 T-Mobile presented testimony to the Planning Commission that it had approached thousands
of school boards about locating WCFs on their properties, and that where there is opposition in the community to the construction of a WCF, such opposition is likely to be intensified
if the proposed location of the WCF is on school property. The alternative of the combination of the city water tank and the Guemes Island communication tower presents a closer question.
The City offered to allow T-Mobile access to the water tank free of charge, and T-Mobile did not really deny that it could use the Guemes Island communications tower. 13 Accordingly,
unlike the other alternatives, this combination may have been viable. However, in light of the environmental impact and additional costs identified by the City's own consultant as being
inherent in the two-site [*31] combination, as well as the City's failure to present any evidence concerning the availability of the Guemes Island communications tower, we do not think
that the possible viability of this combination defeats T-Mobile's showing that the Church site is the least intrusive means of closing its significant gap. 14 We conclude that T-Mobile
made a prima facie showing that placing its WCF on the Church site was the least intrusive means of closing its significant gap in service coverage and that the City's denial of the
application without showing the existence of some potentially available and technically feasible alternative constituted an effective prohibition of service, which the district court
properly enjoined. 13 The fact that the communications tower is not within the City of Anacortes does not appear to be relevant to the question of whether the site is available. 14 Because
of our determination that the City failed to show that the Guemes Island communications tower was available, we need not consider T-Mobile's claim that the two-site combination would
not close the significant gap in its service. Because we conclude that the City failed to show that there were any available alternative [*32] sites, we need not determine whether the
proposed alternative sites would have provided sufficient coverage to close the gap in T-Mobile's coverage. We would address this issue in the same manner as we addressed the availability
of Page 10 572 F.3d 987; 2009 U.S. App. LEXIS 15924, *28; 48 Comm. Reg. (P & F) 244
alternative sites. The provider's application would have to show how the proposed site would close the gap, supported by data showing the coverage afforded by other sites. The locality
could then investigate and determine whether the provider's representations were sound and persuasive. The provider would then have an opportunity to reply to the locality's challenges.
Indeed, this is how T-Mobile and the City proceeded in this case. T-Mobile supported its application with considerable data showing the coverage of the Church site and the other alternatives.
The City responded by questioning some of T-Mobile's data and arguing that T-Mobile's propagation maps did not delineate the coverages offered by the alternatives when combined with
T-Mobile's existing WCFs. The resolution of this disagreement over the adequacy of the propagation maps and the potential coverage of alternative sites is not necessary because we have
determined that the City failed to show [*33] that any alternative sites were available. In sum, applying our statement in Sprint II that a plaintiff must establish "an effective prohibition
on the provision of telecommunications services," 543 F.3d at 579, we conclude that T-Mobile's application made a prima facie showing of effective prohibition, and that the City in denying
the application failed to show that there were any potentially available and feasible alternatives to the Church site. Accordingly, the City's denial of T-Mobile's application violates
47 U.S.C. § 332(c)(7)(B)(i)(II). V. The TCA requires that courts, when reviewing a locality's denial of an application to a wireless communications facility, balance local concerns over
the specific locations of such facilities with the national purpose of providing telecommunication services to all consumers. Following the procedure we set out in MetroPCS, 400 F.3d
at 724, we first considered whether there was substantial evidence to support the City's denial of the special use permit under the applicable state and local laws. Because we concluded
that there was substantial evidence to support the denial under the AMC, we then considered whether the denial violates 47 U.S.C. § 332(c)(7)(B)(i)(II) [*34] by prohibiting or having
the effect of prohibiting the provision of personal wireless services. See Sprint II, 543 F.3d at 579. T-Mobile made a prima facie showing that its proposed location was the least intrusive
means to close the admitted significant gap in coverage by including in its application an analysis of eighteen alternative sites. Although the City was not required to accept the provider's
representations, in order to avoid violating § 332(c)(7)(B), the City was required to show the existence of some potentially available and technologically feasible alternative to the
proposed location. Because the City has failed to do so, the district court's grant of summary judgment in favor of T-Mobile is AFFIRMED. Page 11 572 F.3d 987; 2009 U.S. App. LEXIS 15924,
*32; 48 Comm. Reg. (P & F) 244
1/14/2010 2009 Cable Franchise Administration Report ATTACHMENT Comcast – 2009 Reports and Notices
1/14/2010 2009 Cable Franchise Administration Report ATTACHMENT Rate Regulation Memo
55 East Fifth Street Suite 1220 Saint Paul, MN 55101 P/(651) 379-0900 F/(651) 379-0999 Attorneys at Law Michael R. Bradley† Stephen J. Guzzetta* Joy Gullikson Gregory S. Uhl Telecommunications
Consultant Jon W. Koebrick Legal Assistant Thomas R. Colaizy www.bradleyguzzetta.com †Also admitted in Wisconsin *Also admitted in Massachusetts and the District of Columbia PRIVILEGED
AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE MEMORANDUM TO: City of Auburn FROM: Bradley & Guzzetta, LLC SUBJECT: Review of FCC Forms 1240 & 1205 (Basic Service,
Equipment and Installation Rates) Filed by Comcast on April, 1 2009. DATE: August 11, 2009 On or about April 1, 2009, Comcast Cable Communications, LLC (“Comcast”) filed FCC Forms 1240
and 1205 with the City, the designated rate regulation authority for your franchise area. Comcast uses FCC Rate Forms 1240 and 1205 to justify its proposed rates for basic service, installation
charges and associated equipment. The current forms establish proposed rates for the period from July 1, 2009, through June 30, 2010, although Comcast may choose a slightly different
start date for the new rates. On July 1, 2009, the rates became effective, however, the City has 12 months from the date Comcast filed its Forms 1240 and 1205, in which to review and
act on those forms (e.g., by issuing a rate order that requires a refund and/or a prospective rate reduction). If the City takes no action within the 12-month review period, the City
cannot at a later date order a refund or a prospective rate reduction with respect to the current rate filing. The 12-month period ends on March 31, 2010. Thus, if the City wishes to
take action on the April 1, 2009 rate filings, it must do so by March 31, 2010. We emphasize that the Forms incorporate precise calculation formulas and specific inflation factors and
depreciation schedules. Consequently, a detailed review is necessary to determine complete compliance with FCC Rules and Regulations and the impact of any errors on Maximum Permitted
Rates on the Basic Under this filing, Comcast has claimed a maximum permitted rate of $14.77. The maximum permitted rate has increased only slightly from last year. Comcast is currently
below the maximum permitted rate for its basic service tier programming (Limited Cable Package). The City has not reviewed the Comcast 1205 filings in recent years. At times municipalities
will for a consortium to undertake such reviews. We are not aware of any such consortium this year. Without such a consortium, the cost to conduct an exhaustive review would likely be
prohibitively expensive. We have attached a listing of Comcast’s 2009 Equipment and Installation Rates.
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE The City’s primary options for addressing Comcast’s April 2009 Forms 1240 and 1205 are as follows: A. Take
No Action. The City could elect to perform no review of the Forms 1240 and 1205, and allow Comcast’s proposed basic service and equipment rates and installation charges to become final
upon the expiration of the 12-month review period. 1. Potential Benefits “Doing nothing” is contemplated by and permissible under the FCC’s rules. See, e.g., 47 C.F.R. § 76.933(g)(2).
No action or expenditure of funds is required. The City would remain certified to regulate rates and could review and act on future rate filings from Comcast. 2. Potential Drawbacks
Once the 12-month review period expires, the City loses its right to order refunds or a prospective rate reduction concerning the rates and charges Comcast calculated and implemented.
This would be the case even if it is later determined that the rates and charges imposed by Comcast were were incorrect or unreasonable under FCC rules. Another potential problem is
that Comcast may claim that the City cannot properly evaluate data and calculations used in the current rate forms as part of a future rate review, since the City arguably missed the
opportunity to do so during the appropriate 12-month review period. In the future, it would be difficult to argue that Comcast committed errors or used an improper methodology in the
rate filing since (i) the City had the opportunity to undertake a review and declined to do so and (ii) the City has in the past completed a review of Comcast’s prior rate filing and
thereby established a precedent that the City understands and acknowledges the responsibilities associated with rate regulation. Further, it may be difficult to obtain some important
information for future rate proceedings if you take no action at all on the instant rate filing, since Comcast could (and likely would) argue that such information is no longer relevant
or that identified issues are moot. Lastly, subscribers could allege that the City failed to discharge its fiduciary responsibilities as a certified rate regulation authority. B. Perform
No Review and Issue a Rate Order Preserving Your Rights. The City could forego a substantive review of the Forms 1240 and 1205 filed October 1, 2008, and issue a rate order that neither
approves nor disapproves Comcast’s proposed rates, but preserves any rights you may have going forward. Such an order would have to be adopted within the 12-month review period provided
for under the FCC’s rate regulation rules. 1. Potential Benefits The City would not need to spend the time or funds needed for a substantive review of Comcast’s rate forms. At the same
time, the City may be able to preserve all of its rights for the future to look at the data and calculations in the current forms, to the extent permitted by 2
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE applicable law. Such an approach may maximize the available options as a rate regulation authority while minimizing
the financial commitment necessary to acting substantively on the Forms 1240 and 1205. 2. Potential Drawbacks This approach would not require an expenditure of funds to draft the rate
order itself, along with necessary notices, and to engage in limited discussions with Comcast on acceptable rate order language, if necessary. However, any rate order issued could be
appealed by Comcast, especially if no agreement on language can be reached. We were, however, able to reach an agreement in prior years. Consequently, we do not believe that an appeal
is likely with respect to any similar rate orders adopted this year. That said, Comcast could appeal any rate orders adopted pursuant to this option. Responding to an appeal would, of
course, require the dedication and expenditure of funds. Depending on the complexity of the issues involved, the cost of defending against an initial appeal typically runs from $5,000
to $15,000. Such an amount would be split amongst similarly situated rate regulation authorities. Please note that if the City does not specifically address Comcast’s proposed rates
before the 12-month review period expires, it is unlikely that changes could be implemented at a later time. Notwithstanding that fact, the City may be able to make corrections to the
current rate filing in the course of reviewing a subsequent filing and flow those corrections into a rate order addressing the subsequent filing. Comcast, however, would likely argue
that all problems with the April 1, 2009, Forms 1240 and 1205 are beyond the scope of a future rate proceeding. C. Perform a Detailed Rate Review. The City could perform a detailed substantive
analysis of the FCC Forms 1240 and 1205 filed by Comcast. Such a review would entail the issuance of data requests and a detailed analysis of Comcast’s rates and supporting documents.
Appropriate rate orders would be drafted and adopted within the 12-month review period, based on the findings contained in the report that would be prepared by a municipal cable financial
consultant. The City would need to act timely in selecting this option because of the significant amount of time necessary to complete a detailed rate analysis. 1. Potential Benefits
The City would be able to determine whether Comcast’s proposed calculations and rates comply with FCC rules and decisions. Refunds and prospective rate reductions could be ordered, as
necessary. Reasonable rates, that follow FCC precedent and reflect a competitive environment, could be imposed in your rate orders. In the end, subscribers would be protected against
unreasonable basic service, equipment and installation rates, and you would have fully discharged your duties as a certified rate regulation authority. This approach may be the most
popular with subscribers, since the City would be zealously advocating their interests. 3
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE 2. Potential Drawbacks It is likely that a detailed substantive review would be long, expensive and difficult.
As in previous reviews of basic service, equipment and installation rates, we anticipate that Comcast would resist providing a significant amount of necessary information, thereby compelling
us to devote significant resources to document and information production. We also anticipate that there would be legal disputes about the scope of our review, financial consultant’s
findings, and the processes we followed in conducting our review. Any detailed review of equipment rates will almost inevitably lead to intractable differences of opinion concerning
Comcast’s national aggregation of equipment costs. In the end, any basic service rate reductions imposed may be offset by corresponding increases in other service rates (e.g., expanded
basic service rates and premium service rates). As importantly, if Comcast’s filings contain a a mistake that is favorable to subscribers, that mistake would need to be fixed in the
course of any substantive review. It is highly unlikely that any errors that might be identified during a detailed review, would result in basic service rate adjustments that are more
beneficial than the adjustment resulting from Comcast’s own mistake. As indicated above, any review of Comcast’s proposed equipment and installation rates would be very difficult and
very controversial. Furthermore, it is likely that any rate orders adopted would be appealed, especially if the City decided to address any fundamental flaws in Comcast’s nationalized
equipment and installation ratemaking methodology. As previously mentioned, defending against appeals can be very expensive, depending on the complexity of the issues involved. We should
also note that the FCC would likely grant a stay of our rate orders, pending the outcome of an appeal, which means the rate orders would not be effective unless and until we prevailed
on the merits merits of the appeal. Historically, rate appeals have taken years to conclude. Further, even if we win on appeal, it is possible that Comcast could file additional appeals,
which could delay the effectiveness of our rate orders. It is therefore possible that subscribers may not enjoy the benefits of a detailed review for three to five years. We estimate
that the legal costs associated with this option would be between $5,000 and $15,000. The accounting costs associated with this option would be approximately $27,000-$30,000 (excluding
travel and travel-related costs and the costs of appeals). All costs would be split between those rate regulation authorities choosing to perform a detailed substantive review of Comcast’s
most recent Form 1240 and Form 1205. Recommendation Given that we do not believe any benefits would be derived from a substantive analysis of Comcast’s Form 1240 would be likely, we
do not recommend Option C this year. Option C would also have a significant budgetary impact. If Option C is not pursued, we recommend that the City pursue Option B (preservation of
rights order). We do not recommend inaction, since the City risks losing certain rights, and because Option B rate orders can be prepared at no additional cost to the City. An Option
B draft rate order in the form of a Resolution is attached. The City choose Option B (preservation of rights order) last year. If the City wishes to pursue this option, it should also
forward the resolution to the City Attorney for final preparations for Council action. 4
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE ATTACHMENT Comcast 2009 Equipment and Installation Rates 5
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE ATTACHMENT Proposed Option C Rate Order (Must be acted upon by March 31, 2010) RESOLUTION NO. ____ ORDER REGARDING
THE MAXIMUM PERMITTED BASIC PROGRAMMING SERVICE RATE SET FORTH IN THE FEDERAL COMMUNICATIONS COMMISSION FORM 1240 FILED BY COMCAST ON OR ABOUT APRIL 1, 2009______ WHEREAS, Section 623
of the Cable Communications Policy Act of 1984, 47 U.S.C. § 543, as amended, authorizes local franchising authorities, such as the City of Auburn, Washington (hereinafter the “City”),
to regulate rates for basic cable service; and WHEREAS, the City is certified as a rate regulation authority pursuant to rules of the Federal Communications Commission (hereinafter “FCC”);
and WHEREAS, Comcast Cable Communications LLC, (hereinafter “Comcast”), the local franchise holder, filed with the City an FCC Form 1240 “Updating Maximum Permitted Rates for Regulated
Cable Services”, on or about April 1, 2009, purporting to set forth and justify the maximum rate it could charge to subscribers for basic cable service (hereinafter the “2009 FCC Form
1240”); and WHEREAS, the rate set forth herein will govern Comcast’s basic service rate until Comcast lawfully implements a further rate change pursuant to applicable FCC regulations.
NOW, THEREFORE, the following is resolved: 1. Comcast’s maximum permitted rate for basic cable service, as calculated in the 2009 FCC Form 1240, is neither approved nor denied, but may:
(i) function as a basic service rate ceiling during the relevant rate period; and (ii) be utilized in future basic service rate filings, to the extent permitted by and consistent with
FCC rules and decisions. 2. Comcast shall not charge any rate higher than the maximum permitted rate set forth in the 2009 FCC Form 1240, nor increase that rate, unless such rate is
first filed with and approved by the City, in accordance with applicable law and regulations, including but not limited to the notice requirements imposed by 47 C.F.R. § 76.1603, or
as otherwise expressly permitted under applicable law and regulations. 3. Comcast may charge rates less than the lawful maximum permitted rate for basic service, as long as such rates
are applied in a uniform and nondiscriminatory way, pursuant to applicable federal, state and local laws and regulations. The City, however, shall not be deemed to have approved such
rates. 6
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE 4. This Order is based on the representations made by Comcast in its 2009 FCC Form 1240. Should information
come to the City’s attention that these representations were inaccurate in any material way, the City reserves the right to take appropriate action. This Order is not to be construed
as a finding that the City has accepted as correct any specific entry, explanation, calculation or rate in the 2009 FCC Form 1240. 5. The City reserves all of its rights with respect
to rate regulation, including (but not limited to): (i) the right to request and review data, and documents concerning the 2009 FCC Form 1240 in order to determine the impact, if any,
such data and documents have on rates proposed in future basic service rate filings; (ii) the right to address issues raised in the 2008 FCC Form 1240 that are relevant to any City review
of subsequent basic service rate filings; and (iii) the right to request additional information concerning the 2009 FCC Form 1240 that is relevant to any City review of subsequent basic
service rate filings. 6. This Order constitutes a written decision for purposes of 47 C.F.R. § 76.936(a). 7. This Order shall be effective immediately upon its approval by the City.
8. This Order shall be released to the public and to Comcast, and a public notice shall be published stating that this Order has been issued and is available for review, pursuant to
47 C.F.R. § 76.936(b). PASSED BY THE CITY COUNCIL this _______ day of___________________, 2009. CITY OF AUBURN ___________________________________ PETER B. LEWIS MAYOR ATTEST: _______________________
_______ Danielle E. Daskam, City Clerk APPROVED AS TO FORM: _______________________________ Daniel B. Heid, City Attorney 7
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE RESOLUTION NO. ____ ORDER REGARDING THE MAXIMUM PERMITTED EQUIPMENT AND INSTALLATION RATES SET FORTH IN THE
FEDERAL COMMUNICATIONS COMMISSION FORM 1205 FILED BY COMCAST CABLE COMMUNICATIONS LLC ON OR ABOUT APRIL 1, 2009 WHEREAS, Section 623 of the Cable Communications Policy Act of 1984, 47
U.S.C. § 543, as amended, authorizes local franchising authorities, such as the City of Auburn, Washington (hereinafter the “City”), to regulate rates for equipment and installations;
and WHEREAS, the City is certified as a rate regulation authority pursuant to rules of the Federal Communications Commission (hereinafter “FCC”); and WHEREAS, Comcast Cable Communications
LLC, (hereinafter “Comcast”), parent of the local franchise holder, filed with the City an FCC Form 1205 “Determining Regulated Equipment and Installation Costs, ‘Equipment Form’”, dated
April 1, 2009, purporting to set forth and justify the rates it proposed to charge to subscribers for equipment and installations (hereinafter the “2009 FCC Form 1205”); and WHEREAS,
the City provided interested parties with an opportunity to comment on the 2009 FCC Form 1205; and WHEREAS, the rates set forth herein will govern Comcast’s equipment rates and installation
charges until Comcast lawfully implements a further rate change pursuant to applicable FCC regulations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES
AS FOLLOWS: 8
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE Section 1. Comcast’s maximum permitted rates and charges for equipment and installation, as calculated in
the 2009 FCC Form 1205, are neither approved nor denied, but may function as a rate ceiling during the relevant rate period. Section 2. Comcast shall not charge any rates higher than
the applicable maximum permitted rates set in the 2009 FCC Form 1205 nor increase those rates, unless such rates are first filed with and approved by the City, in accordance with applicable
law and regulations, including but not limited to the notice requirements imposed by 47 C.F.R. § 76.932, or as otherwise expressly permitted under applicable law and regulations. Section
3. Comcast may charge rates less than the lawful maximum permitted rates for equipment and installation, as long as such rates are applied in a uniform and nondiscriminatory way, pursuant
to applicable federal, state and local laws and regulations. The City, however, shall not be be deemed to have approved such rates. Section 4. This Order is based on the representations
made by Comcast in its 2009 FCC Form 1205. Should information come to the City’s attention that these representations were inaccurate in any material way; the City reserves the right
to take appropriate action. This Order is not to be construed as a finding that the City has accepted as correct any specific entry, explanation, calculation or rate in the 2009 FCC
Form 1205. Section 5. The City reserves all of its rights with respect to rate regulation, including (but not limited to): (i) the right to request and review data, and documents concerning
the 2009 FCC Form 1205 in order to determine the impact, if any, such data and documents have on rates proposed in future equipment and installation rate filings; (ii) the right to address
issues raised in the 2008 FCC Form 1205 that are relevant to any City review of subsequent equipment and installation rate filings; and (iii) the right to request additional information
information concerning the 2009 9
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE 10 FCC Form 1205 that is relevant to any City review of subsequent equipment and installation rate filings.
Section 6. This Order constitutes a written decision for purposes of 47 C.F.R. § 76.936(a). Section 7. This Order shall be effective immediately upon its approval by the City. Section
8. This Order shall be released to the public and to Comcast, and a public notice shall be published stating that this Order has been issued and is available for review, pursuant to
47 C.F.R. § 76.936(b). DATED and SIGNED THIS ________DAY OF ______________, 2009. CITY OF AUBURN ___________________________________ PETER B. LEWIS MAYOR ATTEST: ______________________________
Danielle E. Daskam, City Clerk APPROVED AS TO FORM: _______________________________ Daniel B. Heid, City Attorney