Introduction

In this Telecommunications Act dispute, Industrial Tower & Wireless, LLC (ITW) challenged the Vermont Public Utility Commission’s (PUC) denial of its application to construct a 140-foot telecommunications tower, asserting three federal claims: (1) the denial had the effect of prohibiting the provision of personal wireless services (PWS) under 47 U.S.C. § 332(c)(7)(B)(i)(II); (2) the denial was not supported by “substantial evidence” as required by § 332(c)(7)(B)(iii); and (3) Vermont’s statutory requirement that agencies afford “substantial deference” to regional planning commissions, 30 V.S.A. § 248a(c)(2), is preempted by the TCA’s “substantial evidence” standard.

The United States District Court for the District of Vermont (Crawford, J.) granted summary judgment to the PUC commissioners. On appeal, the Second Circuit affirmed in a non-precedential summary order. While not binding precedent under the Second Circuit’s rules, the order offers practical guidance on evidentiary burdens for “effective prohibition” claims, the operation of the “substantial evidence” standard in reviewing local siting decisions, and the harmony (rather than conflict) between Vermont’s “substantial deference” framework and federal law.

The decision addresses a familiar tension in siting cases: how to balance aesthetic impacts and local planning judgments against the federal policy favoring robust wireless service, and what proof is required when an applicant claims that a taller, more impactful facility is necessary to close a coverage gap.

Summary of the Opinion

• Effective Prohibition: The court held ITW failed to meet its burden to show the 140-foot tower was the “least intrusive means” to close a conceded coverage gap. The record supported that a shorter (120-foot) tower could allow at least one national carrier to provide PWS and would be less visually intrusive. Crucially, ITW’s assertions that all four national carriers would co-locate on its 140-foot tower were speculative and unsupported by record evidence.
• Unresolved “All Carriers vs. One Carrier” Question: The panel expressly declined to resolve whether § 332(c)(7)(B)(i)(II) requires accommodation of all carriers’ gaps or is satisfied if at least one carrier can provide PWS. ITW’s claim failed under either construction because it did not provide non-speculative evidence that the taller tower would be used to close the broader gaps it invoked.
• Substantial Evidence: The PUC’s denial was supported by substantial evidence. The Commission considered aesthetics, performance, and community benefits; reviewed expert reports; heard neighbors’ comments; and received regional planning commission input. This record surpassed the “more than a scintilla” threshold.
• Preemption: Vermont’s “substantial deference” to regional planning commission recommendations can be reconciled with the TCA’s “substantial evidence” requirement. There is no “repugnant” conflict; therefore, no conflict/obstacle preemption.
• Disposition: The Second Circuit affirmed summary judgment for the PUC commissioners on all claims.

Detailed Analysis

Precedents Cited and Their Influence

• Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d Cir. 1999): Established the two-part test for effective prohibition claims—(1) a significant coverage gap and (2) the proposed facility is the “least intrusive means” to close that gap. The court leaned on Willoth’s framework and emphasized that the applicant’s proposal must be “reasonably likely” to help close the gap, not merely theoretically capable.
• Omnipoint Communications, Inc. v. City of White Plains, 430 F.3d 529 (2d Cir. 2005): Noted in footnote dicta that the “all carriers vs. one carrier” question is unsettled in the Second Circuit. The panel preserved that status quo by declining to decide the issue here.
• Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002) and APT Pittsburgh Ltd. P’ship v. Penn Twp., 196 F.3d 469 (3d Cir. 1999): Illustrate the inter-circuit split. The First Circuit approach tends toward ITW’s view (accommodating multiple carriers’ needs), while the Third Circuit aligns with the view that enabling at least one carrier can suffice. The Second Circuit again did not pick a side, concluding ITW failed under either approach due to inadequate evidence.
• Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) and Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): Instruct on the “substantial evidence” standard—more than a scintilla; what a reasonable mind could accept as adequate; deferential review; assess the record as a whole. These cases underpin the appellate court’s conclusion that the PUC’s denial meets the standard.
• New York SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010) and Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021): Provide the conflict/obstacle preemption framework. The panel used these authorities to reject ITW’s argument that Vermont’s “substantial deference” requirement is preempted by the TCA.
• Davis v. New York, 316 F.3d 93 (2d Cir. 2002): Cited for the proposition that general, unsupported assertions do not create a triable issue of material fact at summary judgment—relevant to ITW’s speculative co-location claims.
• Fed. R. Evid. 602: Invoked to question the admissibility of speculative assertions not grounded in personal knowledge—reinforcing the court’s skepticism of ITW’s expert predictions about carrier co-location.

Legal Reasoning

I. Effective Prohibition: Least Intrusive Means Requires Non-Speculative Proof

Both sides agreed there was a significant coverage gap for ITW’s specialized mobile radio service and for national carriers’ PWS. The fight centered on “least intrusive means”: ITW insisted only a 140-foot tower could close the gap for all carriers; the PUC maintained a 120-foot alternative would be less visually intrusive and still effective in delivering PWS, at least for one national carrier.

The court emphasized that under Willoth, the applicant must show the proposed project is “reasonably likely” to close the gap. ITW’s theory depended on the assumption that all four national carriers would co-locate on the 140-foot tower. But:

• ITW offered no concrete record evidence that those carriers would in fact co-locate if the tower were built.
• The PUC hearing officer found “no evidence” that such co-location would occur, and the PUC adopted that finding.
• ITW’s expert opinions were speculative; even if admissible, they did not show that the 140-foot tower would produce more carrier commitments than a 120-foot tower.
• ITW’s own expert conceded a 120-foot tower could likely attract at least one national carrier (around the 100-foot antenna level), and ITW provided no coverage analyses at the 90-foot level to support the need for the taller structure.

The court gave a practical evidentiary roadmap: While an applicant need not secure binding carrier commitments, it must offer more than speculation—e.g., evidence of carriers’ existing facilities in adjacent areas, coverage maps grounded in current sites, or plans to expand into the gap area. ITW presented such data for Verizon and AT&T, but not for T-Mobile or Dish Wireless in the PUC proceedings; later-performed studies in the federal litigation relied on assumptions that did not necessarily reflect current facilities or actual coverage.

Because ITW failed to meet its evidentiary burden, the court affirmed summary judgment for the PUC on the effective prohibition claim without resolving the “all carriers vs. one carrier” question.

II. Substantial Evidence: Deferential Review Sustains the PUC’s Denial

Applying the traditional substantial evidence standard, the court reviewed the record as a whole and found more than a scintilla of support for the PUC’s determination. The PUC evaluated:

• Neighbor comments expressing aesthetic and community concerns;
• Expert aesthetic reports indicating that a shorter tower would be less visible;
• Regional planning commission correspondence regarding plan consistency;
• Technical testimony about how reducing height would affect performance.

Within this deferential framework, the court emphasized it could not reweigh the evidence or substitute its judgment for the PUC’s reasonable determinations. The denial of the 140-foot tower thus stood.

III. Preemption: Vermont’s “Substantial Deference” Coexists with the TCA’s “Substantial Evidence”

ITW’s preemption challenge targeted 30 V.S.A. § 248a(c)(2), which directs agencies to give “substantial deference” to regional planning commission recommendations absent good cause. ITW argued this state-law deference requirement conflicts with § 332(c)(7)(B)(iii)’s federal “substantial evidence” requirement.

The court rejected the argument under conflict/obstacle preemption principles. Two key points:

• The mere presence of “tension” between federal and state standards is insufficient; preemption requires a direct, irreconcilable conflict.
• Here, the standards are compatible. Agencies can give substantial deference to planning recommendations yet still ensure that any denial is supported by substantial evidence in the record. If a planning recommendation is unsupported, deference yields to the federal substantial evidence command.

Accordingly, Vermont’s “substantial deference” directive is not preempted by the TCA, and the district court correctly rejected ITW’s preemption claim.

Impact and Implications

For Applicants (Carriers and Tower Companies)

• Evidentiary Burden on “Least Intrusive Means”: Applicants must marshal carrier-specific, non-speculative evidence showing that their proposal is reasonably likely to close the identified gap. If the theory depends on multiple carriers co-locating, provide tangible evidence—current facility maps, coverage studies tied to existing sites, correspondence showing expansion plans—not just expert predictions.
• Consider Shorter Alternatives: Where aesthetics are a concern, be prepared to analyze and document the performance impacts of shorter towers (including multiple antenna elevations). Failure to do so invites a finding that a less intrusive option could suffice.
• Record Development Timing Matters: Evidence introduced only in later federal litigation—especially if based on assumptions not anchored in current deployments—may not cure a sparse administrative record.

For Local and State Regulators

• Balanced Decision-Making Is Defensible: Decisions that weigh aesthetics, community input, planning consistency, and technical performance—and that explain the tradeoffs—are more likely to be sustained under substantial evidence review.
• Deference to Planning Bodies Is Permissible: Affording substantial deference to regional planning recommendations does not run afoul of the TCA so long as the overall decision is grounded in substantial record evidence.
• Tailored Denials: Denying a specific configuration (e.g., 140 feet) while signaling that a less intrusive alternative may be acceptable aligns with federal policy and undermines “effective prohibition” claims.

Unresolved Legal Question Remains

The Second Circuit again left open whether § 332(c)(7)(B)(i)(II) is satisfied if one carrier can provide PWS, or whether localities must accommodate multiple carriers’ needs when a single facility is proposed. Applicants should litigate with both theories in mind and build records that would prevail under either approach.

Practical Takeaways

• “Least intrusive means” is a proof-heavy inquiry. Do the engineering, coverage, and co-location homework for each relevant carrier before the administrative record closes.
• Speculative expert assertions will not carry a summary judgment burden; courts may even question their admissibility under Fed. R. Evid. 602.
• Substantial evidence review is deferential. Agencies need not choose the applicant’s preferred option if a less intrusive alternative is reasonably effective.
• State-law deference to planning bodies can coexist with the federal substantial evidence requirement; there is no automatic TCA preemption.

Complex Concepts Simplified

• Personal Wireless Services (PWS): Commercial mobile services provided by national carriers (e.g., voice and data). The TCA limits local regulation that “prohibits or has the effect of prohibiting” PWS.
• Specialized Mobile Radio (SMR): A separate category of land mobile radio service (often for private/dispatch operations). The case recognized coverage gaps for both SMR (ITW) and PWS (national carriers).
• Significant Coverage Gap: A meaningful absence of service in an area. The parties here agreed a gap existed.
• Least Intrusive Means: The applicant must show its proposal, compared with feasible alternatives, imposes the least aesthetic/land-use burden while being reasonably likely to close the gap. Taller or more impactful structures demand stronger proof.
• Co-location: Multiple carriers installing antennas on a single tower. If an applicant’s case hinges on co-location, it must support the likelihood with evidence, not just predictions.
• Substantial Evidence: More than a mere scintilla; enough that a reasonable person could accept it as adequate. Courts defer to local fact-finding if supported by such evidence.
• Conflict/Obstacle Preemption: Federal law displaces state law only if the two are irreconcilable or state law stands as an obstacle to Congress’s objectives. Mere “tension” is not enough.
• Vermont’s “Substantial Deference” (30 V.S.A. § 248a(c)(2)): State agencies must give significant weight to regional planning commission recommendations absent good cause. This deference can be honored while still meeting the TCA’s substantial evidence requirement.
• Summary Order (FRAP 32.1; 2d Cir. Local Rule 32.1.1): May be cited but has no precedential effect. Nonetheless, it offers persuasive guidance on how the court views similar issues.

Conclusion

This Second Circuit summary order underscores that in TCA siting disputes, evidence—not assumptions—drives outcomes. An applicant claiming its design is the least intrusive means to close a coverage gap must support the claim with concrete, carrier-specific proof that the proposal is reasonably likely to be used to close the gap—especially where the theory hinges on co-location by multiple carriers. The court also reaffirmed the deferential nature of substantial evidence review and made clear that Vermont’s statutory “substantial deference” to planning bodies does not conflict with the TCA’s federal standards.

While the panel declined to resolve the continuing “all carriers vs. one carrier” debate, its analysis provides a practical blueprint: build a robust administrative record, rigorously test less intrusive alternatives, and document why the proposed configuration is necessary and likely to be utilized. Agencies that transparently weigh aesthetics, performance, and community benefits—and tie their determinations to a developed record—can expect substantial evidence deference on review. For both applicants and regulators, the message is clear: develop the facts early and thoroughly, because generalized assertions will not carry the day.