## Facts

- A wireless carrier sought a local permit to build a 70-foot wireless antenna disguised as a flagpole on a properly zoned church property to improve service coverage in Mequon, Wisconsin.
- The proposed church location would materially improve coverage in the target area (approximately from 37% to 95%), based on the carrier’s engineering submissions.
- City officials preferred alternative locations that would provide substantially less improvement (approximately to 72% coverage).
- The planning commission denied the application, citing aesthetic concerns and a preference for alternative sites, but did not develop concrete comparative evidence that the church-site facility would create greater visual harm than alternatives.
- The board of zoning appeals affirmed without issuing a written opinion, leaving the planning commission transcript as the primary written record.
- The carrier sued under the Telecommunications Act of 1996 (TCA), alleging the denial was not supported by substantial evidence contained in a written record.
- The district court granted summary judgment for the carrier and ordered the City to issue the permit; the City appealed, and the carrier cross-appealed the denial of attorney’s fees.

## Issues

1. Whether the City’s denial was “in writing and supported by substantial evidence contained in a written record” under 47 U.S.C. § 332(c)(7)(B)(iii).
2. If the denial lacked substantial evidence, whether ordering issuance of the permit was an appropriate remedy.
3. Whether the carrier was entitled to attorney’s fees.

## Decision

- The Seventh Circuit affirmed summary judgment for the carrier.
- The court held the City’s denial was not supported by substantial evidence in the written record as required by the TCA.
- The court affirmed the injunction requiring the City to issue the permit.
- The court affirmed the denial of attorney’s fees.

## Legal Principles

- “Substantial evidence” in 47 U.S.C. § 332(c)(7)(B)(iii) carries its ordinary administrative-law meaning: the record must contain enough relevant evidence that a reasonable decisionmaker could reach the result.
- Local governments may consider aesthetics in zoning decisions affecting wireless facilities, but aesthetic objections must be supported by record evidence and reasoned explanation, not bare preference or speculation.
- When the final local decision lacks an explanatory written opinion, courts may examine the existing written record (including transcripts) to determine whether substantial evidence supports the denial.
- A locality cannot justify a denial that materially reduces service improvement where the record lacks evidence of countervailing, legally cognizable harms at the proposed site and lacks supported findings that alternatives are feasible and comparably effective.
- Injunctive relief ordering permit issuance may be appropriate where the record is complete and a remand would merely allow the locality to attempt to supply post hoc justifications.
- Absent an applicable fee-shifting basis, attorney’s fees are not awarded simply because a provider prevails on a TCA substantial-evidence claim.

## Conclusion

The Seventh Circuit held that the City’s denial of a wireless facility permit violated the TCA because the written record did not contain substantial evidence supporting the City’s asserted aesthetic objections or its preference for less effective alternative sites; the court therefore affirmed an order requiring permit issuance and affirmed the denial of attorney’s fees.


Primeco Personal Communications v. City of Mequon, 352 F.3d 1147 (7th Cir. 2003)