Skyway Towers, which owns and operates wireless telecommunications facilities used by wireless carriers, filed a complaint on Wednesday in the Eastern District of Texas against the City of McKinney, Texas. The city reportedly denied Skyway’s rezoning application, which the company claimed violated the federal Communications Act, which governs “regulation of the siting of personal wireless service facilities.”
Skyway Towers sued the city for its allegedly “unlawful denial of Skyway’s application to construct a wireless telecommunications facility on a tract of land that is currently occupied by a church and is zoned ‘PD’ – Planned Development District (Residential Uses).” The plaintiff claimed that the city’s denial was not supported by significant written evidence and is meant to prohibit “the provision of personal wireless service” in the area.
Skyway leases space on its facilities to wireless carriers. To provide reliable service, “coverage from cell sites must overlap in a grid pattern resembling a honeycomb.” This information along with radio frequency is used to determine where a new cell tower should be constructed. T-Mobile found that it had a gap in its service in McKinney. Since no existing towers could address the gap, it asked Skyway to develop a wireless communications facility within the specified area at a site with proper zoning and a permit.
Skyway claimed it found property in T-Mobile’s specified area, with the proper zoning that meets other requirements, such as willingness of the property owner to permit this use of the property. The area is occupied by a church. Skyway requested that the area be rezoned to accommodate the installation proposal. Skyway claimed that it made the city’s requested adjustments and provided evidence to support its application, but its application was still denied.
Skyway alleged that the city’s denial violated the Communications Act because it asserted numerous unsupported conclusions and contradicted evidence submitted to the City of McKinney. It allegedly asserts standards that are inapplicable to the city’s code and to denial challenges under the Communications Act. Specifically, the city code “does not require an applicant to prove a specific need for service,” and it does not require an applicant to evaluate or identify other locations. Skyway provided evidence about T-Mobile’s service gap as well as evidence indicating there were no other suitable properties in the specified area to satisfy T-Mobile or Skyway’s need that “would not require the same or more rezoning and set-back adjustments.”
Skyway argued it proved that the property and the evidence provided in its application illustrate that this was the most suitable property and that the needed rezoning and adjustments were acceptable. Skyway claimed that it believed the denial of its application was unlawful because it is not supported by evidence and that Skyway has satisfied the necessary requirements. Skyway also alleged that it adhered to the FCC’s order and this denial limits and violates that order.
Skyway Towers has sought for the court to adjudge that the defendants’ actions and conduct violated federal law, so they are void and invalid; to overturn the defendants’ decision to deny the requested zoning change; to grant the rezoning request application and other necessary approvals, and other relief.
Skyway Towers is represented by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. along with The Francis Law Firm, P.C.
