Verizon Alleges Miss. County Unlawfully Denied Its Cell Tower Application

Verizon Wireless sued Rankin County, Mississippi, to require the county to approve construction of a wireless telecommunications tower to “fill a significant gap in wireless coverage and capacity,” said a Wednesday complaint (docket 3:23-cv-00381) in U.S. District Court for Southern Mississippi in Northern Jackson.

Rankin County’s denial of Verizon’s Dec. 12 application to build a tower in the county “was not supported by substantial evidence contained in a written record, discriminates among functionally equivalent wireless providers and effectively prohibits the provision of personal wireless service in the vicinity of the proposed facility,” in violation of the Telecommunications Act, said the complaint.

Opposition to the tower location came from the mayor of Richland, who was concerned how the tower would affect that city's future growth and comprehensive use plan, and from a neighboring property owner who said the proposed tower wasn’t compatible with his potential use of his property, said the complaint. “None of the public comments were supported by any evidence,” Verizon said.

Verizon requests expedited treatment of the complaint under U.S.C. Section 332(c)(7)(B)(v). The TCA prohibits state and local agencies from taking actions that prohibit personal wireless services, the complaint said. Verizon cited a 2018 FCC ruling that “an effective prohibition occurs where a state or local legal requirement materially inhibits a provider’s ability to engage” in activities that provide service.

It noted the FCC rejected “alternative readings” of prohibition language that were adopted by some courts and used to defend local requirements attempting to prohibit “densification of networks.” Before the FCC established the “materially inhibit standard,” most courts ruled that proving an effective prohibition requires showing a significant gap in service and “some inquiry into potential alternatives to the proposed site.” The carrier cited decisions in the 2nd, 3rd and 9th circuit courts involving a determination of whether a “good faith effort” was made to evaluate “less intrusive alternatives.”

The TCA requires a denial to be in writing, supported by “substantial evidence,” said the complaint. General concerns about “aesthetics or property values do not constitute substantial evidence,” it said, citing U.S. Cellular v. Wichita Falls, Texas.

Verizon determined it has a “significant gap” in coverage in a portion of Rankin County, and a new tower is needed to offload wireless traffic currently served by existing sites and a network that serves a surrounding area, said the complaint. It cited “heavy usage” due to a “massive expansion of usage and demand for wireless communications” that “exhausted” the existing sites and network in the Old Pearson Road area, plus a gap in coverage in the Monterey Road area. The carrier also said it needs to boost the capacity of its network to allow existing sites to operate more reliably and efficiently.

To avoid having to build a new site, Verizon upgraded existing sites to keep up with capacity but determined it needed to build another tower to fill the coverage and capacity needs of the Old Pearson Road area, it said. An appropriate location candidate would have to be located within a “search ring,” comply with county zoning requirements, and be leasable and buildable, the complaint said. No existing towers or structures were close enough to the targeted areas to remedy the coverage gap, and the Old Pearson Road site was the only viable location for the proposed 200-foot monopole tower, it said.

Rankin County’s written denial of Verizon’s application isn't supported by substantial evidence contained in a written record, the injury to Verizon is “continuing and irreparable,” and the application denial can’t be quantified or remedied with monetary damages, said the complaint. The public interest, supported by the TCA, warrants a “declaration and equitable relief” compelling the county to approve the application, it said.

Verizon asserts three TCA violations: failure to comply with the TCA’s supported by substantial evidence requirement, unreasonable discrimination among providers of functionally equivalent services, and unlawful prohibition of the provision of personal wireless services. It seeks an expedited hearing, a declaration that the county violated federal law in denying the application, a mandate that the county issue all necessary permits to allow construction and operation of the proposed tower, and an order stopping the county from imposing penalties or impeding construction of the tower.