Merger Leads to Cell Tower Denial

October 29, 2013

The merger of T-Mobile and Metro PCS in May of this year has had at least one unforeseen consequence. In the Town of Milton, Mass., Green Mountain Realty applied for a tower in the fall of 2009 to place a MetroPCS antenna at the top (140 feet) and a T-Mobile antenna at 120 feet.

The U.S. District Court of Massachusetts has denied Green Mountain Realty’s appeal of the local rejection of the tower, saying the now-combined carriers only need the lower tower.

“Green Mountain has failed to rule out the feasible alternative of locating a shorter tower at the site,” wrote Rya Zobel, U.S. District Judge. “The record evidence indicates that a 140-foot tower was only required in the fall of 2009 because MetroPCS needed its antenna placed at 140 feet.” The court added that T-Mobile US has confirmed that its coverage needs could be met with a tower only 117 feet tall.

The judge noted that the evidence supports Green Mountain’s good faith effort to search for solutions to the coverage gap, and he did not let the Town of Milton completely off the hook, leaving the door open for Green Mountain to make the case for “effective prohibition of personal wireless service” if the municipality does not act appropriately.

“Fairly read, the record indicates that both the BOA and the MCC showed some hostility to the idea of any tower at the site,” Judge Zobel wrote. “In particular, there is no evidence that the [local municipality] would not look more favorably on a shorter tower.”

The local municipality must also act in good faith in evaluating the company’s siting efforts or “Green Mountain might well be able to demonstrate that the boards are so fixedly hostile to any new tower that they have effectively prohibited the provision of wireless services in the area,” Judge Zobel said.