## Facts

- Omnipoint Holdings, Inc., a T-Mobile subsidiary, operated a PCS wireless network in Rhode Island and identified a significant coverage gap in Cranston, particularly near Phenix Avenue, a heavily traveled route.
- To remedy the gap, Omnipoint proposed a 90-foot monopole and related equipment on Solid Rock Church property.
- The proposed facility did not comply with local height and setback requirements, so Omnipoint applied to the Cranston Zoning Board of Review for a use variance and a special-use permit.
- Omnipoint investigated alternatives, including existing structures and other sites, but the record supported findings that alternatives were unavailable or would not feasibly remedy the gap.
- After a public hearing (and a planning commission recommendation to deny), the Zoning Board denied the application, leaving the gap unremedied.
- Omnipoint sued under the Telecommunications Act of 1996 (TCA), alleging the denial effectively prohibited personal wireless services under 47 U.S.C. § 332(c)(7)(B)(i)(II).
- After a bench trial, the federal district court found a TCA violation and ordered relief; the City and related defendants appealed.

## Issues

1. Whether the zoning board’s permit denial was a “final action” under 47 U.S.C. § 332(c)(7)(B)(v) even though limited state-court review was available.
2. Whether the denial had the effect of prohibiting personal wireless services under 47 U.S.C. § 332(c)(7)(B)(i)(II) where Omnipoint showed a significant coverage gap and asserted its proposal was the only feasible solution.

## Decision

- The First Circuit affirmed the district court’s judgment for Omnipoint.
- The zoning board’s denial was a “final action” under § 332(c)(7)(B)(v); Omnipoint did not need to pursue state-court review before filing its federal TCA claim.
- The denial effectively prohibited service under § 332(c)(7)(B)(i)(II) because Omnipoint proved a significant coverage gap and that no feasible alternative existed to close it.

## Legal Principles

- Under the TCA, local zoning authority over wireless facilities is preserved but limited; local decisions may not “prohibit or have the effect of prohibiting” personal wireless services. 47 U.S.C. § 332(c)(7)(B)(i)(II).
- A zoning denial is a “final action” for purposes of § 332(c)(7)(B)(v) when it definitively resolves the application at the local-government level; federal TCA review does not require exhaustion of state judicial remedies.
- In coverage-gap effective-prohibition claims, the carrier bears the burden to show:
  - a significant gap in service in the relevant area; and
  - the proposed facility is the only feasible or least intrusive means to remedy the gap (often tested by the feasibility of alternatives).
- “Significant gap” analysis may consider the gap’s geographic scope, the affected area and users, and service-quality evidence such as dropped calls and inadequate in-call performance.

## Conclusion

The First Circuit held that Cranston’s zoning denial was immediately reviewable under the TCA as a final local action and that the denial effectively prohibited wireless service because it blocked the only feasible means of remedying a significant coverage gap.


Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38 (1st Cir. 2009)