Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`T-MOBILE NORTHEAST, LLC,
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`Plaintiff,
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`v.
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`THE CITY OF REVERE
`MASSACHUSETTS, CITY COUNCIL OF
`THE CITY OF REVERE,
`MASSACHUSETTS,
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`Defendants.
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` Civil Action No.:
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`AND EXPEDITED TREATMENT
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`For its Complaint against Defendant, City of Revere, Massachusetts, City Council for the
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`City of Revere, Massachusetts, (collectively “Defendants” or “City”), Plaintiff T-Mobile
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`Northeast, LLC (“Plaintiff” or “T-Mobile”), by and through its undersigned counsel, upon
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`knowledge as to its own actions and dealings and upon information and belief as to Defendants
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`and their actions, alleges as follows:
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`Nature of the Action
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`1.
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`This action presents the Court with a bold and brazen refusal by the City to
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`comply with federal law. T-Mobile applied to the City for approval to install a wireless
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`telecommunications facility that would include nine (9) roof-mounted antennae, concealed
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`within two stealth fiberglass enclosures, and related equipment at 385 Broadway, Revere, MA.
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`T-Mobile submitted unrefuted evidence complying with the City’s requirements, and, critically,
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`demonstrating that the proposed facilities would comply with the Federal Communications
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`Commission’s (“FCC”) regulations governing radio frequency (“RF”) emissions.
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 2 of 21
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`2.
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`Under Section 332(c)(7)(B)(iv) of the Communications Act, “[n]o . . . local
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`government . . . may regulate the placement, construction, and modification of personal wireless
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`services facilities on the basis of the environmental effects of radio frequency emissions to the
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`extent that such facilities comply with the [FCC]’s regulations concerning such emissions.” 47
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`U.S.C. § 332(c)(7)(B)(iv). Despite this clear statutory prohibition on local governments denying
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`wireless installation based on fears regarding RF emissions, the City’s denial of T-Mobile’s
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`application stated only a single basis: “Frequencies generated from 5G antennae are a potential
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`public health risk.”
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`3.
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`As a result, the City’s denial clearly violates Section 332(c)(7)(B)(iv). In
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`addition, the City’s denial is not supported by substantial evidence in the record in violation of
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`Section 332(c)(7)(B)(iii) and effectively prohibits personal wireless service in the vicinity of the
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`proposed facility in violation of Section 332(c)(7)(B)(i)(II). 47 U.S.C. § 332(c)(7)(B)(i)(II), (iii).
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`4.
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`T-Mobile therefore seeks an injunction from this Court directing the City to grant
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`T-Mobile’s application for the proposed facility in accordance with T-Mobile’s rights under the
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`Communications Act.
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`5.
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`T-Mobile requests expedited treatment of this Complaint pursuant to 47 U.S.C.
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`§ 332(c)(7)(b)(v).
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`Parties
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`6.
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`Plaintiff, T-Mobile Northeast LLC, is a Delaware limited liability company and a
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`wholly owned subsidiary of T-Mobile USA, Inc., a Delaware corporation with its principal place
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`of business in Bellevue, Washington. T-Mobile Northeast LLC is registered to do business in the
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`Commonwealth of Massachusetts and maintains an office at 15 Commerce Way, Suite B,
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`Norton, Massachusetts. T-Mobile Northeast LLC is the operating entity for T-Mobile USA in the
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`2
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 3 of 21
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`Northeast Region, including the Commonwealth of Massachusetts. T-Mobile Northeast LLC
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`owns and operates assets including cell sites used to provide Personal Communications Services
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`(PCS) and Advanced Wireless Services (AWS), as defined by federal law. T-Mobile Northeast
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`LLC operates its wireless network using licenses issued by the Federal Communications
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`Commission (“FCC”) to T-Mobile USA and held by related entities. T-Mobile Northeast LLC
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`provides wireless communications services including voice, data and wireless broadband internet
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`services throughout the New England states as part of T-Mobile USA’s national wireless
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`network.
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`7.
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`Defendant City of Revere, is a duly authorized municipality constituted and
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`existing under the law of the Commonwealth of Massachusetts in the County of Suffolk.
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`8.
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`Defendant, City Council (“Council” or “City Council”) is comprised of members
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`Jessica A. Giannino, Arthur F. Guinasso, Patrick M. Keefe, Joanne McKenna, Steven Morabito,
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`Ira Novoselsky, John F. Powers, Richard J. Serino, George J. Rotondo, Gerry Visconti, and
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`Anthony T. Zambuto. The Council maintains administrative offices at 281 Broadway Revere,
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`MA 02151. Among other things, the Council hears, acts upon, and issues final decisions in
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`applications for use matters, including those related to wireless communications facilities.
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`Jurisdiction and Venue
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`9.
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`This Court has subject matter jurisdiction over this action pursuant to 47 U.S.C. §
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`332(c)(7)(B)(v) and 28 U.S.C. § 1331 because of the existence of federal questions arising under
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`the Communications Act of 1934, as amended by the Communications Act of 1996 (the
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`“Communications Act”). The Court has authority to issue declaratory judgment relief pursuant
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`to 28 U.S.C. § 2201(a).
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`3
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`10.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) in that a
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`substantial part of the acts, events, or omissions giving rise to this action occurred in Revere,
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`Massachusetts in Suffolk County in the District of Massachusetts.
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`Statement of Facts
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`T-Mobile’s Business Plan and National Wireless Policy Goals
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`11.
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`T-Mobile provides commercial mobile radio services, personal and advanced
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`wireless services, as well as other telecommunications services, as those terms are defined under
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`federal law, throughout the northeastern United States including the City of Revere.
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`12.
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`T-Mobile, the operating entity for T-Mobile USA, uses licenses issued by the
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`FCC, pursuant to 47 U.S.C. § 151 to provide wireless service in the City of Revere.
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`13.
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`Section 151 of the Communications Act establishes a national policy to “make
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`available, so far as possible, to all people of the United States, without discrimination … a rapid,
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`efficient, Nation-wide, and world-wide wire and radio communication service with adequate
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`facilities at reasonable charges, for the purpose of national defense, [and] for the purpose of
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`promoting safety of life and property through the use of wire and radio communications . . . .”
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`47 U.S.C. § 151.
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`14.
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`Consistent with these policy goals, T-Mobile seeks to provide a variety of
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`wireless services to consumers such as local businesses, public safety entities and the general
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`public.
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`15.
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`The provision of wireless communications services is a highly competitive
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`industry. Customers demand that providers’ networks perform reliably such that a customer’s
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`calls are not “dropped” due to poor connections.
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`16.
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`To remain competitive as well as to advance the national policies enumerated
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`under 47 U.S.C. § 151, T-Mobile constructs wireless facilities that allow T-Mobile to create and
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`maintain a network of “cell sites,” each of which consists of antennas and related electronic
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`communications equipment designed to send and receive radio signals. To provide reliable
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`service to a user, coverage must overlap in a specified pattern resembling a honeycomb.
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`17.
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`For a wireless network to perform, cell sites must be located, constructed and
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`operated so that reliable service can be achieved. If there is no functioning cell site within a
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`given area, or if the cell sites serving an area lack sufficient capacity to handle the amount of
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`customer demand for limited wireless spectrum, there will be no reliable service for customers
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`within that area, and customers who live or travel in the area will experience an unacceptable
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`level of dropped calls and call connection failures, including calls to emergency services like
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`911.
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`18.
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`If T-Mobile is unable to construct a cell site within a certain geographic area, the
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`network will fail and T-Mobile will not be able to provide reliable service to the consumers
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`within that area.
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`19.
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`To determine where a new wireless facility is required, RF engineers use various
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`techniques, such as sophisticated computer programs and field testing, to complete a study,
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`which shows where cell sites need to be located in order to provide service. The study takes into
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`account the topography of the land, the coverage boundaries of neighboring cell sites, and other
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`factors. For a wireless network to perform, cell sites must be located, constructed and operated
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`so that reliable service can be achieved. If there is no functioning cell site within a given area, or
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`if the cell sites serving an area lack sufficient capacity to handle the amount of customer demand
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`for limited wireless spectrum, there will be no reliable service for customers within that area.
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`5
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 6 of 21
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`The Proposed Facility and Application Process
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`20.
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`Pursuant to a lease dated April 14, 2009 between T-Mobile’s predecessor-in-
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`interest and the City, T-Mobile had maintained a wireless facility at the fire department property
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`at 400 Broadway in Revere (“Prior Facility”). For ten (10) years, T-Mobile operated the Prior
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`Facility and built its wireless network coverage with sites around the Prior Facility. However, in
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`October 2019, T-Mobile was required to decommission the Prior Facility and remove T-
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`Mobile’s equipment because the City declined to extend the lease for the fire department
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`property.
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`21.
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`Based upon research and analysis by its RF engineers, T-Mobile determined that
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`without the decommissioned Prior Facility, it has a significant gap in its ability to provide its
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`service at levels T-Mobile has established are necessary in the City of Revere area in the vicinity
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`of and surrounding 400 Broadway and in the vicinity of surrounding residential homes,
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`commercial establishments, and Revere beach.
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`22.
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`This gap is significant based on a number of factors, such as population and
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`traffic, and must be remedied for T-Mobile to provide reliable and high quality service to the
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`targeted area.
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`23.
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`T-Mobile’s RF engineers identified a search area within which a new facility
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`would need to be constructed to remedy the significant gap in service. T-Mobile then
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`investigated suitable properties within the area that were appropriate for a wireless
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`communications facility. An appropriate candidate would have to fill the gap in service, comply
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`with the local zoning requirements, be leasable, and be capable of having a facility constructed.
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`6
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`24.
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`T-Mobile determined that there are no existing communications towers or tall
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`structures in the search area that can accommodate co-location and remedy T-Mobile’s
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`significant gap in service.
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`25.
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`T-Mobile investigated viable alternatives before concluding that installing the
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`Proposed Facility on the roof of the building at 385 Broadway, a building located on a .689 acre
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`lot at the intersection of Broadway and Central Avenue (the “Subject Property”) would resolve
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`the significant gap in service left by termination of the Prior Facility at the fire station.
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`T-Mobile’s Special Use Application And The City’s Denial
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`26.
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`Section 17.16.110.E of the Revised Ordinances of the City of Revere,
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`Massachusetts (“Ordinance”) sets forth the requirements for all telecommunications facilities in
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`the City.
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`27.
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`On October 22, 2021, T-Mobile filed an Application for a Special Permit From
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`the City of Revere City Council For a Wireless Telecommunications Facility at the Subject
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`Property.
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`28.
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`The Application contained seven (7) sections including the Council application
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`forms, an analysis of the applicable zoning ordinances, radio frequency information including
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`propagation maps showing signal coverage, FCC licenses, the architectural plans and design of
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`the proposed facility, photograph simulations of the proposed facilities, and the initial site plan
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`denial.
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`29.
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`On November 12, 2021, T-Mobile filed a Supplemental Filing containing
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`additional materials in support of its Application. Hereinafter, the “Application” shall refer to
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`the October 22, 2021 Application as supplemented by the November 12, 2021 Supplemental
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`Filing and any other submissions by T-Mobile in support.
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`7
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`30.
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`The Supplemental Filing submitted additional radio frequency information
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`showing the need for the proposed facilities, updated architectural plans, an affidavit from a site
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`acquisition specialist describing the evaluation of potential alternatives and the ultimate choice of
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`the Subject Property, and Revere zoning map showing existing T-Mobile sites.
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`31.
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`The Application proposed to install facilities to include nine panel antennas that
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`would be fully hidden within two faux structures on the roof designed to resemble chimneys or
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`penthouses. Each penthouse would be designed and finished to conform to the existing visual
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`characteristics of the building. All equipment supporting T-Mobile’s antennas would be
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`installed inside and out of view. An emergency backup generator would be installed at the base
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`of the building also out of view. All other cabling will be concealed or pained to match the color
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`and texture of the brick face of the building. (As a whole, the antennas and equipment
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`“Proposed Facilities” or “Proposed Facility”).
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`32.
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`T-Mobile’s Application included evidence that:
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`a. T-Mobile would conduct periodic inspections of its facilities to using a qualified
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`independent engineer licensed to practice in the Commonwealth of Massachusetts.
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`b. T-Mobile would meet all current standards and regulations set forth by the FCC,
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`FAA, and any other state or federal regulatory authority. T-Mobile will maintain its
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`compliance.
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`c. T-Mobile will maintain, and provide as requested all documentations showing
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`compliance with all federal and state requirements.
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`d. T-Mobile’s proposed facilities would be equipped with an appropriate measures to
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`prevent unauthorized access.
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`e. T-Mobile’s proposed facilities would not require any lighting.
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`f. T-Mobile’s proposed facilities would not include any advertising.
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`33.
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`In its application, T-Mobile also explained how T-Mobile and its Proposed
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`Facility would comply with all applicable regulations put forth by the Ordinance.
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`34.
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`T-Mobile’s Application demonstrated that the two faux penthouses would each
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`measure 13 feet in height above the rooftop deck and would be located 13 feet from the edge or
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`the rooftop of the building. The faux penthouses would bring the total height of the building to
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`63-feet. The Subject Property has an existing parapet that measures to the height of 54-feet above
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`ground level.
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`35.
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`Section 17.16.110A(7) of the Ordinance defines a “Macro Telecommunications
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`Facility” as one that is “ located on [an] existing building[], pole[] or other existing support
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`structure[] and which project more than three feet above the top of the structure but no more than
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`ten feet above the roof line, parapet or top of the structure.” Ordinance § 17.16.110A.7.
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`36.
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`T-Mobile’s Proposed Facilities would not exceed the height of the existing
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`parapet by more than 10 feet.
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`37.
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`The Proposed Facility would not be within the direct line of site of any historic or
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`scenic view as designated by the Council.
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`38.
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`T-Mobile’s Application includes the installation of an evergreen buffer along
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`Central Avenue to conceal the proposed backup generator.
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`39.
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`40.
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`T-Mobile’s Application does not include any vegetation removal.
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`T-Mobile’s Proposed Facility will require little maintenance. The facility itself
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`will be unmanned and require only two trips per month for routine maintenance. This facility
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`will not generate any additional traffic or require any additional roads or parking.
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`41.
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`T-Mobile’s Application does not proposed to use any accessory structures that
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`would be used to support the building or that would be stored on site.
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`42.
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`The Application also was supported by the affidavit of T-Mobile’s engineer, who
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`performed an analysis using computer predictions, engineering studies, and other reports to
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`analyze the suitability of the Subject Property to cure T-Mobile’s service needs. T-Mobile’s
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`engineer concluded, based on that analysis, that the Proposed Facility is necessary to ensure
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`wireless services coverage and capacity to the area.
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`43.
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`At the November 22, 2021, hearing of the City Council, the City Council heard
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`and considered T-Mobile’s Application. See Minutes, City Council – Regular Meeting (Nov. 22,
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`2021).
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`44.
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`As part of the City Council hearing process, T-Mobile’s Application was first
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`considered by the Zoning Sub-Committee of the City Council. During the Zoning Sub-
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`Committee hearing on T-Mobile’s Application, Councilor McKenna expressed concerns
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`regarding “the sound of the proposed backup generator,” and T-Mobile’s counsel explained how
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`potential noise concerns could be remedied. The Zoning Sub-Committee also asked T-Mobile’s
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`counsel whether the generator could be installed on the roof to abate any noise concerns. Counsel
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`was unable to answer at that time but could offer removal of the generator and installation of a
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`generator plug at a later time, which would not require Council approval.
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`45.
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`During the Sub-Committee meeting, Councilor McKenna also expressed concerns
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`about “potential harmful effect of radio frequencies generated by 5G antennae.”
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`46.
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`T-Mobile submitted an FCC frequency report showing that the frequencies that
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`would be emitted by the Proposed Facility will be within limits set in FCC regulations.
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`47.
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`Despite this showing of compliance with FCC regulations, during the Sub-
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`Committee meeting, Councilor Serino also expressed concern that “there has not been enough
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`research or data to show that 5G is a public health risk.”
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`48.
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`Chairman Keefe then requested a roll call with the condition that there shall not
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`be a generator installed.
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`49.
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`The Zoning Sub-Committee voted on the question “Shall the Zoning Sub
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`Committee Grant the Relief Requested Subject to the Condition that the Generator Will Not Be
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`Installed?” and the Application received a favorable recommendation, 4-1, to be forwarded to the
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`full Council for a vote.
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`50.
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`Subsequently, the full City Council voted on the Application and denied the
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`Application by a vote of 6 to 5 against approval.
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`51.
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`There is no evidence on the record before the City Council showing that T-
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`Mobile’s Proposed Facilities would not comply with any regulation, particularly the FCC RF
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`emissions regulations.
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`52.
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`The record before the City Council did not contain any evidence showing that the
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`Proposed Facilities did not comply with any local, state or federal regulation.
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`53.
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`On December 1, 2021, the written decision of the City Council denying T-
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`Mobile’s Application, entitled “Notice of Decision on Special Permit,” was recorded by the City
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`Clerk (the “Denial Decision”). A copy of the Denial Decision is attached hereto as Exhibit A.
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`54.
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`The Denial Decision is the final action of the City on the Application, and it
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`became final when filed with the City Clerk on December 1, 2021.
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`55.
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`The Denial Decision stated in relevant part: “The Revere City Council at its
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`meeting on November 22, 2021, VOTED TO DENY the special permit application under Title
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 12 of 21
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`17, Chapter 17.16, Section 17.16.110 of the Revised Ordinances of the City of Revere for the
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`reasons herein described: 1. Frequencies generated from 5G antennae are a potential public
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`health risk.” (Emphasis in original).
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`Federal Regulation of Wireless Telecommunications Facilities
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`56.
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`The federal Communications Act governs federal, state and local government
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`regulation of the siting of personal wireless service facilities such as the one at issue here. 47
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`U.S.C. § 332(c)(7)(B).
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`57.
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`Section 332(c)(7)(B) sets forth multiple procedural and substantive limits on the
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`authority of local governments over applications to deploy personal wireless facilities. 47 U.S.C.
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`§ 332(c)(7)(B).
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`58.
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`Relevant to this case, Section 332(c)(7)(B) prohibits local governments from
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`denying wireless applications based on fears of RF emissions. Section 332(c)(7)(B)(iv) provides
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`“[n]o State or local government or instrumentality thereof may regulate the placement,
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`construction, and modification of personal wireless service facilities on the basis of the
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`environmental effects of radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).
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`59.
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`As the Court in T-Mobile v. Town of Ramapo explained, “a state or local
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`government cannot base a decision to regulate a wireless facility on the “environmental effects”
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`of that facility's radio frequency emissions, if the facility is in compliance with FCC standards.”
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`T-Mobile v. Town of Ramapo, 701 F.Supp.2d 446, 460 (S.D.N.Y. 2009). Further,
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`“[e]nvironmental effects within the meaning of the provision include health concerns about the
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`biological effects of RF radiation.” Id. (citing Freeman v. Burlington Broadcasters, Inc., 204
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`F.3d 311, 325 (2d Cir.2000); Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 494
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`n. 3 (2d Cir.1999)). Finally, as the Town of Ramapo court concluded, “the better and more
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 13 of 21
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`straightforward reading of the provision-which does not contain a qualifying word likes ‘solely’–
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`is that any decision actually based on environmental effects is a violation, whether other
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`legitimate reasons factored into the decision or not.” Id.
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`60.
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`In Procedures for Reviewing Requests for Relief from State and Local
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`Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, Report and
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`Order, 12 F.C.C. Rcd. 13494, 1997 WL 522796 (1997), the FCC determined that Section
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`332(c)(7)(B)(iv) “prohibited state and local governments from regulating any personal wireless
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`service facilities based upon perceived health risks posed by RF emissions as long as the
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`facilities conformed to the FCC Guidelines regarding such emissions.” Cellular Phone
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`Taskforce v. FCC, 205 F.3d 82, 88 (2nd Cir. 2000).
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`61.
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`In addition, for a local government’s denial to be lawful, it must be supported by
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`substantial evidence in the written record. Section 332(c)(7)(B)(iii) provides “[a]ny decision by
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`a State or local government or instrumentality thereof to deny a request to place, construct, or
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`modify personal wireless service facilities shall be in writing and supported by substantial
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`evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii).
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`62.
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`Under First Circuit precedent, once the City has settled on a reason for its denial,
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`and provides that reason to the applicant, it may not “then, in court, seek to uphold its decision
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`on different grounds.” National Tower v. Plainville Zoning Board, 297 F.3d 14, 21 (1st Cir.
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`2002); see also T-Mobile South LLC v. City of Roswell, 135 S.Ct. 808 (U.S. 2015).
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`63.
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`Finally, relevant to this case, a local government’s denial of a wireless facilities
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`application cannot have the effect of prohibiting the provision of personal wireless service.
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`Section 332(c)(7)(B)(i)(II) provides “The regulation of the placement, construction, and
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`modification of personal wireless service facilities by any State or local government of
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 14 of 21
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`instrumentality thereof ... shall not prohibit or have the effect of prohibiting the provision of
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`personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).
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`64.
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`In In the Matter of Acceleration of Broadband Deployment by Removing Barrier
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`to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088,
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`2018 WL 4678555 (2018) (Sept. 27, 2018) (the “Broadband Deployment Order”), the FCC
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`issued a declaratory ruling that definitively interpreted the “effective prohibition” language of
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`Section 332(c)(7)(B)(i)(II). The FCC declared that the standards adopted by the First Circuit and
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`other courts applying Section 332(c)(7)(B)(i)(II) were incorrect. Id. n.94. Instead, the FCC
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`declared that “an effective prohibition [of service] occurs where a state or local legal requirement
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`materially inhibits a provider’s ability to engage in any of a variety of activities related to its
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`provision of a covered service.” Id. ¶ 37 (emphasis added). The FCC made clear that a locality
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`can effectively prohibit the provision of wireless services if it inhibits or limits a provider “not
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`only when filling a coverage gap but also when densifying a wireless network, introducing new
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`services or otherwise improving service capabilities.” Id. ¶ 37 (emphasis added). The FCC also
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`made clear that an effective prohibition includes inhibiting a provider from deploying the
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`“performance characteristics” of its choosing. Id. n.86. The Broadband Deployment Order also
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`declares that local governments cannot deny an application for a wireless site based on the
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`alleged existence of alternative locations. See id. ¶¶ 34-35, 40-42.
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`65.
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`This Complaint is timely filed under 47 U.S.C. § 332(c)(7)(B)(v) because it is
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`filed within 30 days after the Denial Decision became final on December 1, 2021.
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`COUNT I
`(Violation of 47 U.S.C. § 332(c)(7)(B)(iv) – Unlawful Denial On the Basis of Environmental
`Effects of RF Emissions)
`Plaintiff incorporates by reference and realleges the foregoing factual allegations
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`66.
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`in paragraphs 1 through 65 as if fully set forth herein.
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 15 of 21
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`67.
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`Pursuant to 47 U.S.C. § 332(c)(7)(B)(iv), “[n]o State or local government or
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`instrumentality thereof may regulate the placement, construction, and modification of personal
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`wireless service facilities on the basis of the environmental effects of radio frequency emissions
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`to the extent that such facilities comply with the [Federal Communications] Commission’s
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`regulations concerning such emissions.”
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`68.
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`Evidence on the record from T-Mobile specifically demonstrated that T-Mobile’s
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`Proposed Facilities would comply with FCC RF emissions regulations.
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`69.
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`The City’s only stated reason for its decision to deny T-Mobile’s Application was
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`that “Frequencies generated from 5G antennae are a potential public health risk.” Denial
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`Decision at 2.
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`70.
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`Accordingly, the City’s denial of the Application regulates the placement and
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`construction of personal wireless services facilities based on concerns about the health and
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`environmental impacts of RF emissions.
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`71.
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`Consequently, the City’s denial of T-Mobile’s Application is in violation of, and
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`preempted by, 47 U.S.C. § 332(c)(7)(B)(iv) and should be set aside and enjoined by the Court.
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`Further, this Court should exercise its power to issue an order commanding the Defendants to
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`approve the Application and all related permits.
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`COUNT II
`(Violation of 47 U.S.C. § 332(c)(7)(B)(iii) – Lack of Substantial Evidence)
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`72.
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`Plaintiff incorporates by reference and realleges the foregoing factual allegations
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`in Paragraphs 1 through 71 as if fully set forth herein.
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`73.
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`Pursuant to 47 U.S.C. § 332(c)(7)(B)(iii), “[a]ny decision by a . . . local
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`government or instrumentality thereof to deny a request to place, construct, or modify personal
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 16 of 21
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`wireless service facilities shall be . . . supported by substantial evidence contained in a written
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`record.”
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`74.
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`As demonstrated above, T-Mobile’s Application satisfied all of the criteria set
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`forth in the Ordinance.
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`75.
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`Among other things, T-Mobile submitted evidence demonstrating that the
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`Proposed Facility satisfied the requirements of the Ordinance, including but not limited to
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`regulatory compliance, security of the facility, lighting, advertising concerns, visual impacts and
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`landscaping issues.
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`76.
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`There is no record evidence that approval of the Application would be
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`inconsistent with or violate the Ordinance or any other applicable law.
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`77.
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`There is no record evidence that T-Mobile’s Application fails to meet the
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`requirements of the Ordinance.
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`78.
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`There is no evidence on the record disputing any of the evidence submitted by T-
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`Mobile in support of the Application.
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`79.
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`T-Mobile has complied with all applicable procedural and substantive
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`requirements of the Ordinance and satisfied all applicable requirements and conditions precedent
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`to obtain the requested relief from the City which would allow it to install its Proposed Facilities
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`on the Subject Property.
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`80.
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`Only two potential objections to the Application were expressed during the City
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`Council’s Zoning Sub-Committee hearing. First, a concern was expressed that the proposed
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`generator would cause excessive noise. Second, a concern was expressed that the radiofrequency
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`emissions would be harmful to public health.
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`81.
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`T-Mobile offered to abate the generator issues.
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 17 of 21
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`82.
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`T-Mobile submitted unrefuted evidence that the Proposed Facilities would
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`comply with FCC RF emissions regulations.
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`83.
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`The sole reason stated for denial of the Application by the City is “Frequencies
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`generated from 5G antennae are a potential public health risk.” Denial Decision at 2.
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`84.
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`Concerns regarding potential health or environmental effects of RF emissions are
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`not lawful grounds for denying T-Mobile’s Application.
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`85.
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`Accordingly, the City’s Denial Decision was not based on substantial evidence in
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`the record.
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`86.
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`Consequently, the City’s decision is in violation of, and preempted by, 47 U.S.C.
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`§ 332(c)(7)(B)(iii) and should be set aside and enjoined by the Court on that basis. Further, this
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`Court should exercise its power to issue an order commanding the City to approve the
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`Application and issue any permits.
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`COUNT III
`(Violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) –
`Effective Prohibition of Personal Wireless Services)
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`87.
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`T-Mobile incorporates by reference and realleges the foregoing factual allegations
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`in paragraphs 1 through 86 as if fully set forth herein.
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`88.
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`Pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II), “[t]he regulation of the placement,
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`construction, and modification of personal wireless service facilities by any State or local
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`government of instrumentality thereof ... shall not prohibit or have the effect of prohibiting the
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`provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).
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`89.
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`In In the Matter of Acceleration of Broadband Deployment by Removing Barrier
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`to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088,
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`2018 WL 4678555 (2018) (Sept. 27, 2018) (the “Broadband Deployment Order”), the FCC
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`Case 1:21-cv-12147 Document 1 Filed 12/30/21 Page 18 of 21
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`issued a declaratory ruling that definitively interpreted the “effective prohibition” language of
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`Section 332(c)(7)(B)(i)(II). The FCC declared that the standards adopted by the First Circuit and
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`other courts applying Section 332(c)(7)(B)(i)(II) were incorrect. Id. n.94. Instead, the FCC
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`declared that “an effective prohibition [of service] occurs where a state or local legal requirement
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`materially inhibits a provider’s ability to engage in any of a variety of activities related to its
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`provision of a covered service.” Id. ¶ 37 (emphasis added). The FCC made clear that the City
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`effectively prohibits the provision of wireless services if it inhibits or limits T-Mobile “not only
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`when filling a coverage gap but also when densifying a wireless network, introducing new
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`services or otherwise improving service capabilities.” Id. ¶ 37 (emphasis added). The FCC also
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`made clear that an