GTE Mobilnet of California Limited Partnership v. City of Berkeley

Background

GTE Mobilnet of California Limited Partnership, which the opinion refers to as Verizon, applied to Berkeley for permits to build a wireless telecommunications facility at the East Bay Municipal Utility District’s Berryman Reservoir. The proposed facility included a 50-foot monopole disguised as an evergreen tree, six antennas, and related equipment. Berkeley’s Zoning Adjustments Board denied the application, and the City Council later affirmed that denial.

Verizon sued under the Telecommunications Act of 1996. It brought three claims: that Berkeley failed to act within a reasonable time, that the denial was not supported by substantial evidence, and that the denial unlawfully prohibited Verizon from providing wireless services. In an earlier round of this case, the court ruled for Verizon on the failure-to-act claim and on the second part of the effective-prohibition claim. The court ruled for Berkeley on the substantial-evidence claim and left the first part of the effective-prohibition claim for trial. The remaining issues were whether Verizon had shown a significant coverage gap and what remedy should follow from the failure-to-act violation.

Evidence About the Alleged Coverage Gap

Under the court’s two-part test for an effective-prohibition claim, Verizon had to prove both a significant gap in its own service coverage and a lack of available, technologically feasible alternatives. The court had already decided the alternatives issue in Verizon’s favor. The trial therefore focused on whether a significant gap existed in 2020, when Berkeley denied the application.

Verizon relied mainly on a 2019 drive test and reports from its personnel and experts. The test measured signal strength using a metric called Reference Signal Received Power, or RSRP. Verizon also relied on data concerning network capacity and on Richard Conroy’s analysis of conditions in 2023.

The court identified several weaknesses in this evidence. Verizon did not present testimony from the person who performed the 2019 drive test. The record did not establish the age or condition of the phones used in that test, and Conroy received data from only one phone even though the report stated that two phones had been used. The court found Conroy’s later suggestion that the data might have combined results from both phones speculative and gave it no weight.

The court also found that Verizon relied on RSRP alone to show inadequate coverage without establishing that this measurement, by itself, reliably demonstrated the actual user experience. Verizon used a signal-strength threshold of -85 dBm for in-building coverage, but did not provide the underlying information supporting that threshold. Conroy’s 2023 testing used different equipment and methods from the 2019 test, and Verizon did not adequately explain how the 2023 evidence showed what conditions were like in 2020. The court therefore gave the 2023 evidence little value in deciding whether a significant gap existed in 2020.

Conclusions of Law and Ruling

The court concluded that Verizon had not proved by a preponderance of the evidence—that is, that it was more likely than not—that a significant coverage gap existed in the relevant area in 2020. The court therefore granted judgment in favor of Berkeley and Berryman Reservoir Neighbors on the effective-prohibition claim.

The court did not resolve the remedy for Berkeley’s failure to act on Verizon’s application within a reasonable time. Because the effective-prohibition claim had now been resolved in Berkeley’s and Berryman Reservoir Neighbors’ favor, the parties were ordered to brief the appropriate remedy. Verizon’s brief, limited to five pages, was due November 6, 2024; Berkeley and Berryman Reservoir Neighbors’ responses were due November 15, 2024. The court stated that it would take the remedy issue under submission after the briefing.