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Omnipoint Holdings, Inc. v. City of Cranston

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Before Lynch, Chief Judge, Gajarsa *fn1 and Lipez, Circuit Judges.

In this case a wireless carrier was denied a variance and special use permit by the Cranston Zoning Board of Review to build a wireless communications tower in Cranston, Rhode Island. The carrier had so applied in order to remedy a significant gap it found in coverage.

When the carrier sought federal court review of the denial, the city and zoning board countered that the zoning board’s decision was not a “final action” because limited state court review was available. The district court rejected the argument. Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, 2007 WL 2050316, at *4-5 (D.R.I. July 12, 2007) (order denying motion to dismiss) (City of Cranston I). After a two-day bench trial, the court granted judgment for the plaintiff. Omnipoint Holdings, Inc. v. City of Cranston, No. 06-531, slip op. at 8, (D.R.I. Oct. 23, 2008) (City of Cranston II). It held that the town’s denial of the permits constituted an effective prohibition of service in violation of * 332(c)(7)(B)(i)(II) of the Telecommunications Act of 1996 (“TCA”), Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.). Id. at 2, 8.

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