T-Mobile South, LLC filed an application in 2010 for a cell tower on 2.8 acres of vacant residential property in the City of Roswell. The City’s zoning ordinance required permits for all new wireless facilities. The City denied the permit application, and T-Mobile sued asserting violations of the Telecommunications Act of 1996.
After extensive litigation, the City was required to re-review the application. After the City denied T-Mobile’s application again in 2017, T-Mobile claimed the ruling violated the Telecommunications Act. This time, T-Mobile argued that the denial of its permit application violated the Effective Prohibition Clause based on the “significant gap test,” based on the alleged gap in service that the cell tower would remedy.
On appeal, the Eleventh Circuit considered whether the significant gap test was a proper
We conclude that the significant gap test fails at the threshold: the effective prohibition provision applies only to state and local “regulation of ” cell tower siting, not to individual siting decisions. 47 U.S.C. § 332(c)(7)(B)(i). The text, context, and structure of subsection (c)(7) each reinforce our conclusion.
Because the Act’s Effective Prohibition Clause applies to “regulations” — or ordinances or rules adopted by local governments — it does not apply to individual “decisions” denying a single permit application.
Having considered the ordinary meaning of the term “regulation,” the immediate statutory context, and the structural implications of the statute, we conclude that “regulation,” as used in subsection (c)(7)(B)(i), means control by rule. Providers mounting an effective prohibition challenge must aim at the zoning rules themselves instead of an individual denial. T-Mobile did not do so.
Because the District Court applied the wrong standards, the Eleventh Circuit vacated the ruling and remanded the case to apply the correct standard.
