UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

USCOC of New Hampshire RSA #2,

Inc., a Delaware Corporation

d/b/a US Cellular

v. Civil No. 05-cv-266-JM

City of Franklin,

New Hampshire

O R D E R

This matter involves a dispute over plaintiff USCOC of New

Hampshire RSA # 2's (“US Cellular”) desire to construct a

monopole wireless telecommunication facility in Franklin, New

Hampshire in order to close a significant gap in its provision of

wireless telecommunication service there. It is before the court

on plaintiff’s second motion for summary judgment (document no.

24). Plaintiff contends defendant City of Franklin’s

(“Franklin”) denial of its application to construct a facility

has effectively prohibited it from providing service in the area

and has unreasonably discriminated against plaintiff by

preventing it from building a tower similar to that of another

wireless telecommunication provider in Franklin. Defendant

objects. I find that genuine issues of material fact are in

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 1 of 19
1For a more complete recitation of the procedural and

factual background of this case, see Order Granting in Part,

2

dispute and cannot be resolved on the record before me. 

Plaintiff’s motion, therefore, is denied.

Discussion

US Cellular is entitled to judgment as a matter of law under

Fed. R. Civ. P. 56(c) if it can establish that no genuinely

disputed issues of material fact exist, considering the facts and

all reasonable inferences drawn therefrom in the light most

favorable to defendant. See Napier v. F/V Deesie, Inc., 454 F.3d

61, 66 (1st Cir. 2006) (citing authority for standard of review).

This action is brought under The Telecommunications Act of 1996

(“TCA”), codified in several sections of the United States Code,

which provides for federal court jurisdiction over disputes

arising out of decisions by local authorities regarding the

installation or modification of wireless telecommunication

facilities. 47 U.S.C. § 332(c)(7)(B)(v). The statute also

contemplates a speedy resolution of any such matter. Id. To

that end, this court has reviewed issues on summary judgment

already, in an effort to facilitate a more expeditious resolution

of the disputes which have prevented US Cellular from building

the tower at issue, as explained briefly below.1 

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 2 of 19
Denying in Part, Mot. Summ. J., Feb. 1, 2006 (doc. no. 22) (“Sum.

J. Order”), USCOC of NH RSA # 2, Inc. v. City of Franklin, Civ.

No. 05-266-JM (D.N.H.) (“Franklin II”).

3

In a prior action brought by US Cellular involving the same

proposed wireless communication facility, the court concluded

that a height variance was justified and ordered the Zoning Board

of Adjustment (the “ZBA”) of Franklin to issue the necessary

variance. See USCOC of NH RSA #2, Inc. v. City of Franklin, Civ.

No. 04-66-JM, slip op. at 25 (D.N.H. Jan. 12, 2005) (“Franklin

I”). With that order, US Cellular sought approval of its site

plan from the Franklin Planning Board (“the Board”) in March

2005. The Board denied US Cellular’s site plan application,

which led to the instant law suit. Plaintiff moved for summary

judgment on whether the Board’s decision was supported by

substantial evidence, as required by 47 U.S.C. § 332(c)(7)(B)

(iii). I granted in part plaintiff’s motion for summary judgment

and reversed the Board’s decision on four of the stated bases for

denying approval of the site plan, finding there was not

substantial evidence to support those conclusions. I also

determined, however, that a question of fact existed regarding

the adverse visual impact of the facility, precluding summary

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 3 of 19
2Specifically, the court found that the record demonstrated

there was not substantial evidence to support the Board’s

conclusions that: (1) the proposed tower posed a safety hazard;

(2) plaintiff had not demonstrated its proposed facility could

accommodate three other wireless service providers; (3)

alternative sites exist that could accomplish plaintiff’s goals;

and (4) the chosen location constituted an over-use of the

property. Significantly, the record demonstrated that the Board

had not given plaintiff an adequate opportunity to present

evidence pertaining to either the feasibility of alternative

sites or the charged over-utilization of the chosen site. The

single issue for which a question of fact remained was whether

the Board’s conclusion that the proposed monopole would have an

adverse visual impact on the surrounding residential neighborhood

was supported by substantial evidence. There was a clear dispute

over the extent to which the facility would be visible from that

neighborhood, and some ambiguity in the Board’s interpretation of

the scope of the camouflage requirement, which precluded summary

judgment. 

4

judgment on that issue. See Franklin II, Summ. J. Order at 37.2

Plaintiff then filed a second motion for summary judgment, which

is currently before the court. Plaintiff now asserts that the

City’s denial of its site plan application unreasonably

discriminates against it and effectively prohibits it from

providing wireless service to Franklin, in violation of 47 U.S.C.

§ 332(c)(7)(B)(i)(I) and (II), respectively.

Unlike the first summary judgment motion which required me

to review the administrative record for a determination of

whether the Board’s decision was supported by substantial

evidence, review of the issues presented here is de novo. See

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5

Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d

14, 22 (1st Cir. 2002) (explaining how the anti-prohibition and

anti-discrimination provisions “present questions that a federal

district court determines in the first instance without any

deference to the board”). Additional evidence may be proffered,

therefore, to supplement the administrative record in order to

resolve the dispute. See id. Under the circumstances presented

here and as explained more particularly below, I find such

additional evidence is necessary to determine whether the Board’s

denial of US Cellular’s site plan is preempted by the federal

requirements that local land use authorities not discriminate in

allowing, or effectively prohibit, the provision of wireless

communication service. See Nextel Commc’ns v. Town of Wayland,

231 F. Supp. 2d 396, 408 (D. Mass. 2002) (explaining how TCA

claims reviewed de novo are treated like all other federal claims

on summary judgment). 

1. Discrimination Claim

The TCA limits the authority of local governments to decide

where wireless communication facilities can be constructed if the

decision “unreasonably discriminate[s] among providers of

functionally equivalent services”. 47 U.S.C. § 332(c)(7)(B)(i)

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 5 of 19
6

(I); see also Sw. Bell Mobile Sys. v. Todd, 244 F.3d 51, 57-58

(1st Cir. 2001) (discussing preemptive role of TCA). This

limitation permits some discrimination, based on traditional

zoning goals, as long as the distinctions drawn between providers

are reasonable to protect legitimate zoning prerogatives. See

MetroPCS, Inc. v. City of San Francisco, 400 F.3d 715, 727 (9th

Cir. 2005) (listing cases and citing legislative history which

interpret the scope of discrimination allowed). To state a claim

for unreasonable discrimination, providers must demonstrate: 

“that they have been treated differently from other providers

whose facilities are ‘similarly situated’ in terms of the

‘structure, placement or cumulative impact’ as the facilities in

question.” Id. (explaining “almost all federal courts

considering such cases” have so ruled (emphasis added in quote

and internal citation omitted)). 

In support of its claim, US Cellular contends defendant 

unreasonably discriminated against it when its site plan approval

was denied because US Cellular’s proposed tower did not meet the

zoning ordinance’s 150 foot vegetative buffer requirement. See

Pl.’s Summ. J. Mem. at 24; see also Kozyra Aff. ¶ 18 (citing §

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 6 of 19
3The correct subsection appears to be 10, not 11, which

provides: “[a]ll ground-mounted wireless service facilities

shall be surrounded by a buffer of dense tree growth that extends

continuously for a minimum distance of one hundred and fifty

(150) feet from the mount, security barrier, or designated clear

area for access to equipment, whichever is greatest, and screens

views of the facility in all directions.” § 305-29.1(E)(10) of

the Franklin Zoning Ordinance.

4Those three site plans are the two AT&T tower plans and the

US Cellular proposed plan.

7

305-29.1(E)(11)(sic)3). In particular, US Cellular argues that

the Board waived the vegetative buffer requirement for two towers

constructed by AT&T and, therefore, should have treated US

Cellular similarly by waiving the requirement for it. For

plaintiff to prevail, it must demonstrate there is no genuine

issue of material fact regarding whether its proposed facility is

“similarly situated” to the AT&T towers in terms of “structure,

placement and cumulative impact.” MetroPCS, Inc., 400 F.3d at

727. When deciding whether or not to approve the three site

plans at issue here4, the Board could have considered, and in

fact did consider, the visual, aesthetic and safety impact of the

particular facility in the proposed location, without that

comparison constituting unreasonable discrimination. See Sprint

Spectrum, L.P. v. Willoth, 176 F.3d 630, 638-39 (2d Cir. 1999)

(finding no discrimination where the disparate treatment was

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reasonable).

The undisputed facts relevant to the discrimination claim

establish the following: US Cellular proposes to construct a

150-foot monopole tower on the rear portion of the CN Brown

property, located at 798 Central Street (the “Central Street

property”), on U.S. Route 3 in Franklin’s business district,

where wireless telecommunications towers are a permitted use. 

The Central Street property abuts a residential zone. AT&T has a

similar 150-foot monopole tower located on Industrial Drive in an

area of Franklin designated an industrial zone (the “Industrial

Drive tower”). AT&T has a second cell tower, which is designed

as a flag pole, is 110 feet high, and is located behind a church

on South Main Street in downtown Franklin (the “South Main Street

tower”). Both AT&T towers are permitted uses in their respective

locations, and AT&T was granted waivers from the required

vegetative buffer zone for both locations. 

Plaintiff argues its proposed facility is “identical in

structure and function” to AT&T’s Industrial Park tower. See

Pl.’s Summ. J. Mem. at 10, 24 (document no. 24-2). Plaintiff

also argues its site is on a bigger lot than either AT&T tower,

is set back 100 feet from the property line, is surrounded by

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 8 of 19
9

dense vegetation on three sides, and is shielded from the street

on the fourth side by an existing gas station and proposed

additional pine trees. By comparison, the Industrial Park tower

is only 41 feet from the property line, with a minimal 

vegetative buffer; similarly, the South Main Street tower is only

55 feet from the nearest property line and has no landscaping at

its base. See id. Both the Industrial Drive tower and the South

Main Street tower are visible from the street and neighboring

residential properties. Id. Plaintiff asserts that its proposed

facility would have no greater impact on Franklin than the AT&T

towers do.

Defendant counters that AT&T’s towers are distinguishable

from plaintiff’s proposed tower. As an initial matter, both AT&T

site plan applications were unopposed and received no public

criticism when they were presented to the Board for approval. 

See Def.’s Mem. in Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Opp.

Mem.”) (document no. 26) at 15. Defendant argues that no

opposition was received because the aesthetic impact of both AT&T

towers was minimal. Defendant further argues that requiring a

vegetative buffer would have drawn attention to the AT&T towers,

which would have undermined the intended purpose of the buffer

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 9 of 19
10

requirement. Finally, defendant contends that both the

Industrial Drive tower and the South Main Street tower blend into 

their respective settings, which explains the lack of public

opposition and the waiver of the vegetative buffer requirement.

After carefully reviewing the submissions on file, I find a

material question of fact remains pertaining to the proximity of

the AT&T towers to residential neighborhoods compared to the

Central Street property. The critical issue in this dispute is

to what extent the proposed facility will impact the adjacent

neighborhood. Although plaintiff asserts the Industrial Drive

and South Main Street towers are visible from residential

neighborhoods, the record is unclear as to whether a residential

zone abuts either of those sites like it does the Central Street

property site. The record is also ambiguous as to how much of

the Central Street property is visible from the adjacent

neighborhood, and what precisely is intended to be shielded by

the vegetative buffer requirement. Because “the record contains

no systematic comparison of the sites in question,” MetroPCS,

Inc., 400 F.3d at 729, and because the TCA allows localities the

flexibility “to treat facilities that create different visual

[or] aesthetic concerns differently . . . even if those

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5The anti-prohibition provision presumes that, in a disputed

case, a gap in wireless service exists that local regulations are

11

facilities provide functionally equivalent services,” id. at 727,

I conclude that summary judgment is not appropriate on the

current record. Further evidence must be submitted to establish

the visual and aesthetic impact on the adjacent residential

neighborhoods of US Cellular’s proposed tower compared to the

Industrial Park and South Main Street towers, before I can

determine whether denying US Cellular’s site plan application

because it failed to comply with the vegetative buffer

requirement constituted “unreasonable discrimination” in

violation of 47 U.S.C. § 332(c)(v)(B)(i)(I). 

2. Effective Prohibition Claim

As a second limitation on local control over the siting of

wireless communication facilities, the TCA preempts local zoning

regulations which either prohibit or effectively prohibit the

provision of wireless communication service. See 47 U.S.C. §

332(c)(7)(B)(i)(II). This mandate reflects a compromise in the

TCA between preserving local zoning authority and creating a

seamless national wireless communication system. See Town of

Amherst v. Omnipoint Commc’ns, 173 F.3d 9, 13 (1st Cir. 1999)

(explaining the competing goals of the TCA).5 The effective

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 11 of 19
preventing providers from filling. See Second Generation Props.

v. Town of Pelham, 313 F.3d 620, 631-35 (1st Cir. 2002)

(rejecting the “any service equals no effective prohibition” rule

to focus on the consumer’s need for service by its particular

provider); see also Nat’l Tower, 297 F.3d at 20 (holding that

decisions which prevent the closing of a significant gap in

service violate § 332(c)(7)(B)(i)(II)). 

12

prohibition provision preempts local zoning decisions which

preclude wireless service, even if those decisions correctly

applied the pertinent zoning regulations and are supported by

substantial evidence. See Second Generation, 313 F.3d at 628-29 

(reviewing denial of variance supported by substantial evidence

to determine whether it constituted an unlawful effective

prohibition); see also Town of Amherst, 173 F.3d at 14 (finding

effective prohibition if regulations set forth criteria

impossible to satisfy as written or administered). 

The anti-prohibition clause extends beyond total bans on

cell towers to reach individual denials that “effectively

prohibit” wireless service if the provider can show either (1)

that “the town sets or administers criteria which are impossible

for any applicant to meet,” or (2) that its application is the

only feasible plan to fill the gap in service. Second

Generation, 313 F.3d at 630. The burden of proof falls on the

provider and demands a showing “from language or circumstances

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13

not just that this application has been rejected but that further

reasonable efforts are so likely to be fruitless that it is a

waste of time even to try.” Town of Amherst, 173 F.3d at 14

(emphasis in original). Here, there is no dispute that US

Cellular has a significant gap in its coverage. There is also no

dispute that Franklin does not have a blanket prohibition against

cell towers. The issue is whether the denial of US Cellular’s

site plan constituted an effective ban on its service to the

presently uncovered area.

US Cellular argues that further applications before the

Board would be fruitless both because its site plan is the only

feasible option and because defendant’s regulatory requirements

set forth criteria which are impossible to meet. I address each

argument in turn. 

(a) The only feasible site plan.

US Cellular makes several arguments in support of its

contention that the Central Street Property is the only feasible

site to cover its existing gap in service. In support of this

argument, plaintiff first contends this court has already

concluded that no alternative sites exist. See Pl.’s Summ. J.

Mem. at 16. Plaintiff misunderstands the court’s prior rulings. 

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 13 of 19
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Previously the court concluded the Board had not given plaintiff

an adequate opportunity to show that no alternative sites were

feasible, including co-location on other sites, and, therefore,

could not base its denial of plaintiff’s site plan application on

that purported failure. See Summ. J. Order at 3-4, 34-36. 

Although the court decided the administrative record did not

include substantial evidence to support the Board’s decision, the

court formulated no opinion regarding the actual feasibility of

the selected site compared to other possible sites. As those

previous decisions illustrate, there is a dearth of evidence in

the record comparing the Central Street property to alternative

sites, including co-location on existing towers. Because the

feasibility of alternative sites is critical to a determination

of whether US Cellular has been effectively prohibited from

providing service in Franklin, this raises a genuine issue of

material fact.

Plaintiff next argues the Central Street property is the

only feasible site because zoning regulations, in particular the

vegetative buffer requirement and the height limitation, cannot

be satisfied in any other location. Specifically, plaintiff

contends that the business district along Route 3, where its

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15

proposed tower would be a permitted use, is no more than 300 feet

wide, which severely limits where its facility can be placed and

still satisfy the 150 foot vegetative buffer requirement. 

Plaintiff also asserts that the height limit of 150 feet further

restricts the available options. Defendant rejects plaintiff’s

assertion and offers three alternative sites in support of its

position: the McDonald’s property, see Def.’s Opp. Mem. at 8-9,

Exhibits 8 and 9, the R.D. Edmunds property, see id., and the

Franklin Shopping Plaza, see id. at 9, Exhibits 9 and 13. 

Defendant argues that the visual and aesthetic impact of the

tower in one of these other locations may cause the Board to

treat more favorably an application for site plan approval on one

of the alternate sites. Plaintiff counters by citing the

shortcomings of these properties, which plaintiff alleges would

prevent it from locating a facility on any one of them that would

be adequate to fill the coverage gap yet still conform with the

various zoning requirements of Franklin’s regulatory scheme.

This discourse illustrates a clear dispute of material fact

between the parties pertaining to the viability of alternative

sites. Plaintiff correctly argues that it is not required to

exhaust every possible alternative, especially where hostility

Case 1:05-cv-00266-JM Document 30 Filed 02/06/07 Page 15 of 19
6In fact, the town maps and photographs of the various

properties offered as exhibits indicate one of the other sites

might enable the proposed facility to have less of a visual and

aesthetic impact, which might persuade the Board to grant any

waivers or variances such an alternative location might require.

16

can be inferred from the Board’s treatment of its application.

See Nextel Commc’ns v. Town of Provincetown, slip op. No. 02-

11646-DPW, WL 21497159, *10-11 (finding regulations which made

alternative sites technically unfeasible effectively prohibiting

wireless service); see also Town of Wayland, 231 F. Supp. 2d at

408-09 (lengthy record of repeated delays and denials showed

town’s effective prohibition). Yet, while the record

demonstrates that US Cellular has had difficulty getting approval

to construct its 150-foot monopole on the Central Street

property, the denial of one site plan application does not create

a pattern of hostility towards US Cellular. Cf. id. (finding

hostility after 8 years of effort to comply with changing zoning

requirements prevented provider from getting the approval needed

to construct its facility). The record contains no evidence

systematically comparing the various properties, or demonstrating

unsuccessful efforts by US Cellular to use one of the alternate

sites, which now might substantiate plaintiff’s claim that the

Central Street property is the only feasible site.6 See Second

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17

Generation, 313 F.3d at 635 (denying effective prohibition claim

where provider failed to show efforts to build a taller tower or

to build at an alternative site had also been denied); see also

Town of Amherst, 173 F.3d at 15 (denying effective prohibition

claim where provider declined to present serious alternatives to

the town); see also Sw. Bell Mobil Systems, 244 F.3d at 63

(requiring provider to “develop a record demonstrating that it

made a full effort to evaluate the other available alternatives

and that the alternatives are not feasible to serve its

customers”). Based on the facts presently before the court, I

cannot find as a matter of law that plaintiff’s efforts to pursue

another site plan application for an alternative site would

necessarily be futile. 

(b) Impossibility of Zoning Criteria

Finally, plaintiff argues the zoning regulatory scheme sets

forth criteria which are impossible to meet, rendering further

applications fruitless. Defendant counters that plaintiff’s

ability to satisfy all but one of the criteria demonstrates they

can be met. Plaintiff replies that the newly amended fall zone

requirement of 110% of the tower’s height creates an absolute bar

to construction on any of the alternative sites located along

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18

Route 3, where a tower would need to be located in order to fill

its coverage gap. Plaintiff presents a strong argument, because

the 300-foot wide business district along Route 3, where the

proposed tower would be built, cannot accommodate a 110% fall

zone for a 150-foot tower. Again, however, nothing in the record

demonstrates whether the Board will strictly enforce that new

fall zone requirement or be willing to exempt facilities in

particular locations under special circumstances. Defendant may

very well recognize plaintiff’s right to fill its gap in coverage

and allow plaintiff to construct a tower on one of the sites

which the Board determines has a more palatable visual and

aesthetic impact. See Second Generation, 313 F.3d at 630

(recognizing how local authorities are aware of the preemptive

power of the TCA and wisely consider it when making their

decisions). Accordingly, I cannot definitively say Franklin’s

regulatory criteria are impossible to meet. 

Summary judgment on plaintiff’s effective prohibition claim,

therefore, cannot be granted.

Conclusion

For the reasons set forth above, plaintiff’s motion for

summary judgment (document no. 24) is denied. The parties shall

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19

have the opportunity to proffer evidence to resolve the questions

of fact identified here and provide the court with the necessary

information to resolve this dispute. The clerk is directed to 

schedule an evidentiary hearing on a mutually agreeable date

within the next 60 days.

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 6, 2007

cc: Paul T. Fitzgerald, Esq.

 Steven E. Grill, Esq.

 Geoffrey J. Ransom, Esq.

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