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Why is DeKalb County making access to wireline broadband harder?

DeKalb County, Georgia is facing a lawsuit from T-Mobile over the county’s revocation of a land development permit months after the permit was apparently approved.  T-Mobile’s intent was to build a stand alone telecommunications tower for use in providing mobile service.

T-Mobile alleges that DeKalb County’s primary reason for doing a 180-degree turn on the permit was based on a policy by DeKalb’s interim chief executive officer and that the County’s actions were a violation of the Communications Act of 1934.

The complaint is filed in the United States District Court-District of Northern Georgia, Atlanta Division.  The case number is 1:13-cv-03447-TWT.

The county’s response to T-Mobile’s complaint was not what I would call responsive.  Spending 24 pages basically saying that we have no information upon which to base a response was disconcerting to say the least.  More important is what appears to be a total disregard for the impact the County’s revocation of a land development permit would mean for delivery of wireless voice and broadband services.

While acknowledging T-Mobile’s statutory authority under the Communications Act for filing the complaint, DeKalb County didn’t take the opportunity to rebut T-Mobile’s assertions that deploying this tower was part of the overall statutory mandate under Section 151 of the Act to provide a nationwide communications network providing universal access by all Americans.

As T-Mobile rightfully points out in its complaint, the penetration by wireless subscribers to our nationwide, private sector provided network is over 312 million subscribers, basically every man woman, and child in America.  These subscribers are accessing knowledge and information markets for a myriad of reasons including accessing basic news, learning about current events, purchasing educational services, , conducting commercial transactions, engaging in financial transactions, and transmitting health related data.

DeKalb County’s revocation of the land development permit means less access to increasingly scarce spectrum necessary for accessing and using broadband technology.

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Sixth Circuit Sends Message to Localities on Wireless

The United States Court of Appeals for the Sixth Circuit yesterday gave wireless broadband deployment a boost when it upheld a lower court ruling that overturned a locality’s decision to deny a wireless carrier’s petition to deploy a wireless facility.

The Township of West Bloomfield, Michigan denied a request by T-Mobile to deploy a seventy-foot tower for the purpose of housing the carrier’s cellular antenna. The court of appeals held that the Township violated the Telecommunications Act by failing to provide substantial evidence in writing upon which to base its denial. The standard the court settled on was a reasonableness standard: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The court opined that aesthetics, claims of health risks posed by emissions, and generalized arguments amounting to “not in my backyard”, did not reach the level of substantial evidence.

The court also addressed whether the Township’s decision prohibited or had the effect of prohibiting the provision of personal wireless services. The court of appeals settled on a two-prong test (The MetroPCS standard) upon which to answer the question. The first part of the test requires that a wireless carrier show significant gaps in service coverage. The second prong of the test requires that there be some inquiry into the feasibility of alternative facilities or site locations.

The court of appeals held that T-Mobile met the requirements of the test and that the Township’s action in face of the carrier passing the test amounted to prohibiting the provision of wireless services.

This case shows the federal law’s preference for deployment of wireless facilities. It also shows how poor interpretation of it can hinder deployment of facilities particularly in rural areas where wireless facilities may be the most feasible mode of access to broadband services available to rural residents.

Not only did the court properly interpret the statutes, its ruling led to the promotion of good social and commercial policy: ensuring the deployment of universal communications infrastructure.