On July 14, 2023, the U.S. Court of Appeals for the Third Circuit issued a precedential decision that expands the scope of the type of "need" a carrier can use to challenge a land use denial under the Federal Telecommunications Act (TCA). In Cellco Partnership v. White Deer Township Zoning Hearing Board, Docket No. 22-2392 (3d Cir. 2023), the court affirmatively adopted the Federal Communications Commission's (FCC) "material inhibit" standard for violations of the TCA and replaced the existing "effective prohibition standard." As will be discussed in this article, this standard is a lower threshold that can be met not only with respect to the filling of significant gaps in a carrier's coverage, but also when a carrier is densifying a wireless network, introducing new services or otherwise improving service capabilities. The new standard of review also contemplates the totality of inhibiting factors, including costs, and not just those created by a municipal zoning ordinance. This is a sea change in the standard of review that will apply to local decisions impacting wireless services in New Jersey.

The old Third Circuit "effective prohibition" standard required a two-part test for whether a denial of a wireless service application constituted an unlawful prohibition of service in violation of 47 U.S.C. Section 332(c)(7)(B)(i)(II). The first step was to determine whether there was a significant gap in wireless service and the second step required the provider to demonstrate that it proposed to fill the coverage gap in the manner "least intrusive on the values that the denial sought to serve." APT Pittsburgh v. Penn Township, 196 F.3d 469, 479, 480 (3d Cir. 1999). See also, T-Mobile Northeast v. Borough of Leonia Zoning Board of Adjustment, 942 F. Supp. 2d 474, 482 (D.N.J. 2013).