Los Angeles SMSA Limited Partnership v. City of Los Angeles, California

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 LOS ANGELES SMSA LIMITED Case No. 2:16-cv-04954-FLA (SKx) PARTNERSHIP, a California limited [12] partnership dba VERIZON WIRELESS, FINDINGS OF FACT AND 13 CONCLUSIONS OF LAW Plaintiff, 14 FOLLOWING BENCH TRIAL v. [15] Date: May 25, 2021 16 CITY OF LOS ANGELES, Time: 8:30 a.m. 17 Defendant. Courtroom: 6B [19] 20 RULING 21 The court finds the South Los Angeles Area Planning Commission’s (“South 22 LA APC”) December 3, 2018 decision to deny Plaintiff Los Angeles SMSA Limited 23 Partnership’s (doing business as Verizon Wireless) (“Plaintiff” or “Verizon”) revised 24 application (the “2017 Project Application”) to place, install, construct, and operate an 25 unmanned wireless telecommunications facility at 2512 South Robertson Boulevard, 26 Los Angeles, California (the “proposed Facility” or the “Hillsboro Facility”) violated [27] 47 U.S.C. § 332 (c)(7)(B)(i)(II) of the federal Telecommunications Act of 1996 (the 28 “TCA”) by prohibiting Verizon’s ability to fill a significant gap in its network 1 coverage and its provision of 4G LTE wireless services. In particular, the court finds 2 Plaintiff presented sufficient evidence at trial to establish by a preponderance of the 3 evidence that Verizon has a “significant gap” in its own service coverage within the 4 geographic area that would be covered by the proposed Facility. 5 Accordingly, for the reasons set forth herein, the court GRANTS Judgment in 6 Plaintiff’s favor and ISSUES a Writ of Mandate under Cal. Code Civ. Proc. § 1094.5 7 ORDERING Defendant the City of Los Angeles (“Defendant” or the “City”) to set 8 aside, vacate, and rescind the Denial Decision and further ISSUES an Injunction 9 REQUIRING the City to issue promptly all permits and other approvals, along with 10 all other permits and environmental review approval authorizations necessary, to 11 allow Verizon to proceed with the construction and operation of the proposed Facility, 12 as set forth in the 2017 Project Application. 13 Plaintiff shall file a proposed Judgment within 21 days of this ruling, which 14 accurately states the court’s rulings and complies with all statutory requirements and 15 court rules, including Fed. R. Civ. P. 65(d). 16 BACKGROUND 1 17 Verizon brings this action to challenge the City’s December 3, 2018 decision to 18 deny the 2017 Project Application (the “Denial Decision”). Trial Ex. 18. The 19 proposed Facility consists of: (a) a maximum 52-feet high, faux mono-eucalyptus tree; 20 (b) a maximum of twelve (12) panel antennas that are 8-feet in height; (c) eighteen 21 (18) new radios; (d) three (3) new wireless raycaps; and (e) faux eucalyptus tree 22 branches and “socks” containing antennas, radios, and raycaps. Trial Ex. 16 at 2. 23 / / / [25] 1 In the Final Pretrial Conference Order, dated May 25, 2021, the court ordered 26 admitted all facts marked as undisputed in the Statements of Genuine Disputes of 27 Material Facts filed by the parties in support of their cross-motions for summary judgment (Dkts. 73, 75-4). Dkt. 121 § 5. The following background facts, therefore, 28 are not in dispute. 1 In November 2014, Plaintiff submitted a Master Land Use Application to the 2 Los Angeles Department of City Planning (the “LADCP”) seeking approval of a 3 conditional use permit to build and operate the proposed Facility (the “2014 Project 4 Application”). Dkt. 75-4 ¶ 1. City Zoning Administrator Jack Chiang (“ZA Chiang”) 5 denied the 2014 Project Application on March 10, 2016, which Plaintiff appealed. Id. 6 ¶ 2. On June 7, 2016, the South LA APC held an appeal hearing on the 2014 Project 7 Application, at which time it adopted the findings of ZA Chiang and denied the 8 appeal. Id. ¶ 3. The South LA APC issued its written determination letter denying the 9 2014 Project Application on June 20, 2016. Id. ¶ 4; Trial Ex. 2:001. 10 Plaintiff filed the Complaint in this action on July 7, 2016, challenging the 11 City’s denial of the 2014 Project Application. Dkt. 1. On March 9, 2017, the City 12 and Verizon participated in a mandatory settlement conference with Magistrate Judge 13 Steve Kim, which resulted in a tentative settlement of the action. Dkt. 27. Under the 14 settlement agreement, Verizon agreed to prepare and submit a revised application for 15 a conditional use permit, the 2017 Project Application, and to dismiss the Complaint if 16 the redesigned facility was approved through the City’s planning process. Id. ¶¶ 2-3. 17 Verizon filed the 2017 Project Application with the LADCP on July 27, 2017. Trial 18 Ex. 3; Dkt. 75-4 ¶ 8. 19 On July 6, 2018, Associate Zoning Administrator David Weintraub (“ZA 20 Weintraub”) issued a determination letter approving the 2017 Project Application. 21 Trial Ex. 16. On July 16, 2018, a group of 214 residents and 53 businesses filed an 22 appeal challenging ZA Weintraub’s approval of the 2017 Project Application (the 23 “2018 Appeal”). Dkt. 75-4 ¶ 10, Trial Ex. 17. The South LA APC held a public 24 hearing on October 30, 2018, at which time it denied the 2017 Project Application and 25 granted the 2018 Appeal. Dkt. 75-4 ¶ 11. The South LA APC issued its written 26 determination letter on December 3, 2018. Trial Ex. 18. 27 Plaintiff filed the operative First Amended Complaint (“FAC”) on December 28 18, 2018, asserting four causes of action for: (1) violation of 47 U.S.C. § 1 332(c)(7)(B)(iii) (“§ 332(c)(7)(B)(iii)”) for denial not based on substantial evidence; 2 (2) violation of 47 U.S.C. § 332 (c)(7)(B)(i)(II) (“§ 332(c)(7)(B)(i)(II)”) for unlawful 3 prohibition of service; (3) violation of 47 U.S.C. § 332 (c)(7)(B)(i)(I) (“§ 4 332(c)(7)(B)(i)(I)”) for unreasonable discrimination; and (4) petition for writ of 5 mandate under Cal. Code Civ. Proc. § 1094.5. Dkt. 49. 6 Verizon contends the Denial Decision violated the TCA and seeks: (a) a 7 declaration that the Denial Decision violated the TCA and the Federal 8 Communications Commission’s (“FCC”) Declaratory Ruling and Third Report and 9 Order (FCC 18-133), dated September 26, 2018 (“the September 2018 FCC Ruling”); 10 (b) an injunction precluding the City from refusing to issue all relevant and necessary 11 permits for the wireless telecommunication facilities at the South Robertson 12 Boulevard site, as well as all other permits and environmental review approval 13 authorizations necessary for the operation of Verizon’s telecommunications facilities 14 at that location; and (c) a writ of mandate under California law ordering the City to 15 rescind its denial of the 2017 Project Application and to issue all relevant and 16 necessary permits and environmental review approvals for the wireless 17 telecommunications facilities at the South Robertson Boulevard site, as well as all 18 other permits and environmental review approval authorizations necessary for the 19 operation of Verizon’s telecommunications facilities at that location. FAC ¶¶ 3, 6. 20 PROCEDURAL POSITION OF THE ACTION 21 On September 30, 2019, the court dismissed Plaintiff’s third cause of action for 22 violation of § 332(c)(7)(B)(i)(I) without prejudice, pursuant to stipulation by the 23 parties. Dkt. 71. On September 1, 2020, the court granted partial summary judgment 24 in Defendant’s favor on Plaintiff’s first cause of action for denial not based on 25 substantial evidence under § 332(c)(7)(B)(iii). Dkt. 85 at 32. The only remaining 26 causes of action are Plaintiff’s second cause of action for effective prohibition of 27 service under § 332(c)(7)(B)(i)(II) and fourth cause of action for a petition for writ of 28 mandate under Cal. Code Civ. Proc. § 1094.5. 1 Section 332(c)(7)(B)(i)(II) states in relevant part: 2 The regulation of the placement, construction, and modification of 3 personal wireless service facilities by any State or local government or 4 instrumentality thereof … (II) shall not prohibit or have the effect of 5 prohibiting the provision of personal wireless services. [6] 47 U.S.C. § 332 (c)(7)(B)(i)(II). The Ninth Circuit has recognized that a locality can 7 violate the effective prohibition clause of the TCA if it prevents a wireless provider 8 from closing a “significant gap” in service coverage. T-Mobile USA Inc. v. City of 9 Anacortes, 572 F.3d 987, 995 (9th Cir. 2009). In evaluating such a claim, courts in 10 this circuit apply “a two-pronged analysis requiring (1) the showing of a ‘significant 11 gap’ in service coverage and (2) some inquiry into the feasibility of alternative 12 facilities or site locations” (the “Anacortes test”).2 Id. 13 On September 1, 2020, the court granted partial summary judgment in 14 Plaintiff’s favor on the second element of the Anacortes test, holding Verizon made a 15 prima facie showing that the proposed Facility was the “least intrusive means” of 16 filling the purported significant gap in coverage and that the City failed to rebut that 17 showing. Dkt. 85 at 27-31. The court denied the parties’ cross-motions for summary 18 judgment on the first element of the Anacortes test and on the second cause of action 19 as a whole. Id. at 32. Given the parties’ apparent agreement that the fourth cause of [21] 22 2 In the court’s September 1, 2020 order, the court additionally denied the parties’ 23 cross-motions for summary judgment on the issue of whether the Denial Decision was an unlawful prohibition of service under the standard established by the September 24 2018 FCC Ruling. Dkt. 85 at 32. Plaintiff’s trial brief states: “[w]hile Verizon 25 believes that the FCC Ruling applies to the Denial Decision and Verizon would prevail under the FCC’s standard for the effective prohibition claim, Verizon will not 26 pursue this argument in this case and will only brief and raise at trial the issue of a 27 significant gap under the 1996 Telecommunications Act (TCA) and the Ninth Circuit standard.” Dkt. 91 at 7 n.1. Accordingly, the court will limit its analysis to the Ninth 28 Circuit standard under the Anacortes test. 1 action for a writ of mandamus was derivative of the first and second causes of action, 2 the court denied the parties’ cross-motions as to the fourth cause of action. Id. 3 This action came to trial on May 25, 2021 on the sole remaining issue of 4 whether Plaintiff has demonstrated the existence of a “significant gap” in service 5 coverage. After evaluating the evidence in the record and presented at trial, including 6 making determinations of credibility, the court issues the findings of fact and 7 conclusions of law set forth below.3 8 STANDARD OF REVIEW 9 I. The Ninth Circuit’s Standard for a “Significant Gap” in Service Coverage 10 “[A] significant gap in service (and thus an effective prohibition of service) 11 exists whenever a provider is prevented from filling a significant gap in its own 12 service coverage.” MetroPCS, Inc. v. City & Cnty. of San Francisco, 400 F.3d 715 , 13 733 (9th Cir. 2005) (italics omitted), abrogated in part on unrelated grounds in T14 Mobile S., LLC v. City of Roswell, 574 U.S. 293 , 299 (2015). “‘[S]ignificant gap’ 15 determinations are extremely fact-specific inquiries that defy any bright-line legal 16 rule.” Id. “[T]he relevant service gap must be truly ‘significant’ and ‘not merely 17 individual “dead spots” within a greater service area.’” Id. at 733 n.10. “[T]he 18 provider has the burden of showing that the denial of its proposal will effectively 19 prohibit the provision services.” Anacortes, 572 F.3d at 997-98 . 20 Courts consider a “wide range of context-specific factors” in assessing the 21 significance of alleged coverage gaps, including the nature and character of the area, 22 the number of potential users in that area who may be affected by the alleged lack of [25] 3 At the Final Pretrial Conference, the court deferred ruling on Plaintiff’s objections to letters and other communications in the Administrative Record and evidence filed in 26 support of Defendant’s Motion for Summary Judgment related to papers authored by 27 residents concerning the strength of their respective phone signals. Dkts. 112, 120. Plaintiff withdrew its objections at trial and these exhibits were admitted into 28 evidence. 1 service, whether facilities are needed to improve weak signals or to fill a complete 2 void in coverage, whether gaps pose public safety risks, and the effects of gaps on 3 roads, highways, railways, and commercial districts. Sprint PCS Assets, L.L.C. v. City 4 of Palos Verdes Estates, 583 F.3d 716, 727 (9th Cir. 2009). Inadequate or unreliable 5 in-building service can be sufficient to show the existence of a significant gap in 6 coverage. T-Mobile W. Corp. v. City of Huntington Beach, No. 2:10-cv-02835-CAS 7 (Ex), 2012 WL 4867775 , at *4 (C.D. Cal. Oct. 10, 2012). 8 While the Ninth Circuit has not specifically ruled on the applicable standard for 9 review regarding a “significant gap,” district courts in this circuit and appellate courts 10 in other circuits have held that in reviewing a claim under § 332(c)(7)(B)(i)(II), “[t]he 11 administrative record is reviewed de novo” and “there is no deference to local 12 findings.” Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158, 1163-64 (S.D. 13 Cal. 2000 ); T-Mobile NE LLC v. Loudoun Cnty. Bd. of Supervisors, 748 F.3d 185 , 192 14 (4th Cir. 2014) (“the issue of whether [a locality] has prohibited or effectively 15 prohibited the provision of wireless services is determined de novo by the district 16 court”) (internal citations omitted); APT Pittsburgh Ltd. P’ship v. Pa. Twp. Butler City 17 of Pa., 196 F.3d 469, 475 (3d Cir. 1999) (“[W]hether a state’s denial of an application 18 to construct a personal wireless service facility ‘has the effect of prohibiting the 19 provision of personal wireless services’ … is to be made de novo by a reviewing court 20 that will not necessarily be limited to the record compiled by the state or local 21 authority.”). “[I]n evaluating an effective prohibition claim, district courts are free to 22 consider additional evidence not in the administrative record.” ColfaxNet, LLC v. City 23 of Colfax, 2:19-cv-02167-WBS-CKD, 2020 WL 4818895 , at *3 (E.D. Cal. Aug. 19, 24 2020) (quoting Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 49 (1st Cir. 25 2012). 26 II. Plaintiff’s Argument 27 Plaintiff contends it should prevail on its effective prohibition claim because 28 Verizon made a prima facie showing of a significant gap during the 2018 Appeal, 1 whereas the South LA APC improperly denied the 2017 Application without rebutting 2 or questioning Verizon’s evidence and testimony. Dkt. 91 (Pl. Op. Trial Br.) at 9-13. 3 As stated, the Anacortes test involves a two-pronged analysis under which the 4 provider must show: (1) a “significant gap” in service coverage; and (2) “the lack of 5 available and technologically feasible alternatives.” Anacortes, 572 F.3d at 995 . With 6 respect to the second prong of the Anacortes test: 7 [1] A provider makes a prima facie showing of effective prohibition 8 by submitting a comprehensive application, which includes 9 consideration of alternatives, showing that the proposed WCF is the 10 least intrusive means of filing a significant gap. [2] A locality is not 11 compelled to accept the provider’s representations. However, when a 12 locality rejects a prima facie showing, it must show that there are 13 some potentially available and technologically feasible alternatives. 14 [3] The provider should then have an opportunity to dispute the 15 availability and feasibility of the alternatives favored by the locality. [16] Id. at 997-98 . 17 According to Plaintiff, the following language from Anacortes demonstrates the 18 Ninth Circuit intended for the same three-step process to apply to the first prong of the 19 Anacortes test: 20 Because we conclude that the City failed to show that there were any 21 available alternative sites, we need not determine whether the 22 proposed alternative sites would have provided sufficient coverage to 23 close the gap in T-Mobile’s coverage. We would address this issue in 24 the same manner as we addressed the availability of alternative sites. 25 The provider’s application would have to show how the proposed site 26 would close the gap, supported by data showing the coverage afforded 27 by other sites. The locality could then investigate and determine 28 whether the provider’s representations were sound and persuasive. 1 The provider would then have an opportunity to reply to the locality’s 2 challenges. 3 Dkt. 91 (Pl. Op. Trial Br.) at 11 and Dkt. 103 (Pl. Reply Trial Br.) at 5-6 (quoting 4 Anacortes, 572 F.3d at 998-99 ). 5 The quoted language however, concerns discussion of “whether the proposed 6 alternative sites would have provided sufficient coverage to close the gap in T7 Mobile’s coverage,” which relates to the “the lack of available and technologically 8 feasible alternatives” under the second prong of the Anacortes test. Anacortes, 572 9 F.3d at 998-99. Anacortes neither discussed nor considered the applicable standard 10 for the first prong, as the defendant in that case conceded there was a significant gap 11 in coverage. Id. at 995, 999. 12 The court, therefore, disagrees with Plaintiff’s contention that the same three13 step process applies to the first prong of the Anacortes test and will evaluate the 14 existence of a significant gap after reviewing the evidence de novo. 15 III. Defendant’s Arguments that There Is No “Significant Gap” Because 16 Verizon’s Existing Network Provides Traditional Voice, Text Messaging, 17 and Email Services 18 Defendant contends Verizon cannot establish a significant gap in its coverage 19 because the evidence in the record establishes Verizon’s existing network provides 20 reliable outdoor and in-vehicle coverage for traditional voice, text messaging, and 21 email services throughout the entire coverage area. Dkt. 98 (Def. Opp. Trial Br.) at 21 22 (citing Trial Ex. 27:007 (Afflerbach Decl.) ¶ 28). According to the City, the Ninth 23 Circuit held in Palos Verdes, 583 F.3d at 728 , that there was no effective prohibition 24 where a wireless carrier’s “existing network was, at the very least, functional.” Dkt. 25 98 (Def. Opp. Trial Br.) at 18-19. Defendant misreads the holding of Palos Verdes. 26 In Palos Verdes, 583 F.3d at 726-27 , the district court granted summary 27 judgment in favor of the wireless provider, Sprint PCS Assets, L.L.C. (“Sprint”), on 28 its effective prohibition claim, finding Sprint had established the existence of a 1 significant gap, in relevant part, because Sprint’s “existing wireless coverage in the 2 City was ‘based on obsolete facilities needing replacement.’” The Ninth Circuit 3 reversed the district court’s grant of summary judgment, in relevant part, because the 4 record did not establish the obsolescence of Sprint’s existing facilities as a matter of 5 fact. Id. at 728 . As the Ninth Circuit explained, Sprint “not only failed to explain 6 why the existing facilities were no longer usable, but they actually undermined that 7 position by pointing out that those facilities were currently serving some four 8 thousand residents and acknowledging at the public hearing that Sprint service was 9 generally available in the City.” Id. As the evidence in the record established that the 10 “existing network was, at the very least, functional,” the Ninth Circuit reversed the 11 grant of summary judgment for the provider on this basis. Id. 12 Palos Verdes does not stand for the proposition that a provider cannot 13 demonstrate at trial the existence of a significant gap or an effective prohibition of 14 service if its network is “at the very least, functional,” and holds only that a wireless 15 provider is not entitled to summary judgment where there are disputed issues of 16 material fact. Id. at 720 (citing Fed. R. Civ. P. 56(c)) (“Summary judgment is 17 appropriate only if the pleadings, the discovery, disclosure materials on file, and 18 affidavits show that there is no genuine dispute as to any material fact and that the 19 moving party is entitled to judgment as a matter of law.”) (emphasis added). Here, in 20 contrast, as explained below, Plaintiff has proven at trial the existence of a significant 21 gap in service coverage. Accordingly, the cited portion of Palos Verdes is inapposite. 22 Pursuant to § 332(c)(7)(B)(i)(II), “[t]he regulation of the placement, 23 construction, and modification of personal wireless service facilities by any State or 24 local government or instrumentality thereof—(II) shall not prohibit or have the effect 25 of prohibiting the provision of personal wireless services.” For purposes of that 26 paragraph, the term “personal wireless services” is defined to mean “commercial 27 mobile services, unlicensed wireless services, and common carrier wireless exchange 28 access services.” Id. at § 332(c)(7)(C)(i). Defendant offers no legal authority to 1 establish that only voice, text messaging, and email services qualify as “personal 2 wireless services” or “commercial mobile services” under § 332(c)(7), or that the 3 TCA does not also prevent the prohibition of other services including high-speed 4 internet. The legislative history of the TCA suggests otherwise. 5 Congress enacted the TCA to “encourage the rapid deployment of new 6 telecommunications technologies.” S. 652, 104th Cong. § 104 (1996) (enacted) at 7 Synopsis; Palo Verdes, 583 F.3d at 721 . It would be inconsistent with Congress’s 8 stated intent in enacting the TCA for the court to read additional limitations into the 9 definition of “personal wireless services” and limit § 332(c)(7) to voice, text 10 messaging, and email services. Accordingly, the court holds that § 332(c)(7)(B)(i)(II) 11 does not only prevent the City from prohibiting traditional voice, text, and email 12 services, but also prevents the City from effectively prohibiting Verizon from closing 13 a significant gap in its 4G LTE services. 14 FINDINGS OF FACT 4 15 IV. The Parties’ Evidence Regarding Coverage 16 The facts in this action are largely not in dispute. Both Plaintiff’s expert 17 witness, Brian Blanchard (“Blanchard”), and Defendant’s expert witness, Lee 18 Afflerbach (“Afflerbach”), testified at trial and agreed that wireless signal strength is 19 measured in decibel-milliwatts (“dBm”), with higher negative numbers representing 20 weaker signals. For example, a signal of -85 dBm represents a stronger signal and 21 more reliable wireless service than a signal of -95 dBm. 22 Blanchard and Afflerbach further testified at trial and agreed that: (1) a signal of 23 -85 dBm or stronger represents good, reliable in-building and in-vehicle 4G-LTE 24 wireless service; (2) a signal between -95 dBm and -86 dBm represents good, reliable [25] 26 4 The court finds that the following facts are supported by evidence in the record. The 27 characterization of a finding as one of “fact” or “law” is not controlling. To the extent a finding is characterized as one of “law” but is more properly characterized as one of 28 “fact” (or vice versa), substance shall prevail over form. 1 in-vehicle 4G-LTE wireless service as well as some level of in-building service, with 2 -95 dBm set as the telecommunications industry’s standard for in-vehicle coverage; 3 and (3) a signal between -105 dBm and -96 dBm represents reliable outdoor 4G-LTE 4 wireless service and less reliable in-vehicle service. Trial Ex. 25:009 (Blanchard 5 Decl.) ¶ 20; Trial Ex. 29:009-29:010. At trial, Afflerbach testified that -105 dBm is 6 “the lowest or near the end of signals that can be received on a cell phone” and is 7 “where the phone is just starting to receive … reliable signals.” Afflerbach’s expert 8 report similarly states that “[w]here the signal is lower than -105 dBm, [Verizon’s 9 network] may not provide reliable in-vehicle or outdoor coverage….” Trial Ex. 10 29:010. 11 The parties submitted three maps regarding Verizon’s 4G LTE network 12 coverage in the geographic area near the proposed Facility. First, Plaintiff submitted a 13 radio frequency (“RF”) coverage map of Verizon’s predicted RF signal strength, 14 which Plaintiff created in 2018 using its RF prediction tool, Atoll. Trial Ex. 25:00515 25:007 (Blanchard Decl.) ¶¶ 11-13; Trial Ex. 26:002 (Blanchard Decl. Attach. 1, 16 “Plaintiff’s 2018 Coverage Map”). 17 / / / 18 / / / 19 / / / [4] 5 Re 6 vy [11] 12 Fy [17] 18 Legend 19 LTE: RSRP - Coverage (0) RSRP Level (DL) (dBm) > =-85 20 Leen RSRP Level (DL) (dBm) > =-95 = “a RSRP Level (DL) (dBm) > =-105 22 | Trial Ex. 26:002 (Plaintiff's 2018 Coverage Map). 23 Second, Plaintiff submitted a map that shows the results of a drive test 24 | performed by a Verizon system performance RF engineer in 2018. Trial Ex. 24:009, 25 | 24:015 (“Plaintiff's Drive Test Map”). 26 | /// 27 | /// 28 | /// [13] 1 | pees □ Be ae RSRP (dBm) 2 £ & MM -85<=x<=0 3 -@ ti a iy 18th 5) -95<=xX<-85 a BH -105<=X<-95 4 ge . ae 5 by i a c ‘i “tg g Soe Pe. : oo St C | Aca a tn a 9 yf ii Ay as a3 he Fi, C + W 254, Sp e 10 vhs ra mechewe Hh st Elements a hie eo oO My Hillsboro [a 13 a ms 2 iA 14 re Or ey re, Cary = ; a i ae By Deep Dive Analysis os 15 7 righ school MM th a □ ae eo 16 | Trial Ex. 24:015 (Plaintiff’s Drive Test Map).° 17 Although Plaintiff did not present the underlying data from its drive test for the 18 || court’s review, a count of the hexagons in Plaintiff's Drive Test Map shows: (1) 5.9% 19 | of signals were -85 dBm or stronger; (2) 23.7% of signals were from -96 dBm to -85 20 | dBm; (3) 49.9% of signals were from -96 dBm to 105 dBm; and (4) 20.5% of signals 21 | were at -106 dBm or weaker. See Trial Ex. 24:015. 22 Third, Defendant submitted a map that shows the results of a drive test 23 | Afflerbach conducted between March 8 and March 10, 2021. Trial Ex. 29:010 24 | (Afflerbach Decl. Ex. B, “Defendant’s Drive Test Map”). [25] 26 | 97 | ° According to Plaintiff, “[t]he white dots or areas ... represent the complete lack of any effective Verizon network signal.” Trial Ex. 24:009. The court interprets this 28 | statement to mean that the white dots represent recorded signals below -105 dBm. [14] ere ed Gee ee Be PS Es ea oe Gee dae | ye | | Cece eeeeee octr te □□□ LA a, Seley 2 4p aes Pe eee ee □□□ ieee ee EEN os Ne eee □□ 2 |) Persea Gietitas,, “eA ateskis Pea) carrey, LOS Angeles, CA gery teint ie Be Ae ee i eee Dats Collected 21-001021 3 aba ab Sines ae Poet eee Ce ee Aer to} Seo. esis” eae te eat. tan tll oy, 4 | a lie sabes: ee, Te ee ene ea petits □□□ 5 □□ 4 i ths i a cs A a i. oe ee □□ □□ □□ □ □□ □□ a al My Erion as 7 7 a Leo ae ee ~— ge □□ 6 ae - Sa Pn, ft Ps: po kp 1 a + et pe □□□ hie eee ks a Bist r ere = Pe ea et ac 7 if “Py Fu F = > i □□ |) Klee sai Ses □□ cise □□ ee == 5 a A Bs ie □□□ a = * wi F sie 14 ‘ a = cil = | □□ 9 | Semi Pfc, □□□ a Ss PN iE - a Poe i 4 aps © = a 7 i = a □□ □□ 10 Gro ee ae i q ic . 3 ar 4 Hat) □□ : iG oe □ □ ae + ‘he ee - fa ieee “is ba tk □□ . i Ps A Fecal ay □□□ A: Me etree CTCL Se Ess es 1] i i er: Se oot ae i ir a Le eile, □□ □□ eee See et © □□ ipigze 0 = oe eee □ (Be FSP EON □□□□ a Pee 5 ris Mite FS is ae oP cee □□ Pe Tiree 3 ie oe es ee eee Torek tp ee ie J i i : a a) : ri a a : = a 4 Po i : if acs Fs a 3 han. as | a □ □□ Sinaal esi if 1g EO aa ais Bo ee ee 14 ee. 2 ayy ml ae ia i "a i Pi ve if □□□ Pa) ae □□ i a ‘ _ i Fj ee ae a □□□□ □□ □ a oe ee =A err r oF ae a ov ae Fi, 5 at ki □□ □□ 15 2 Eo □□ foe i Be dae eed oe Bat aie □□□ J I yk i eT od te ea re ei a ie □ = § Ps □□□□ A a ot ae a # 7 ree a rd i re a ee at a a ae □□ 16 | Aer ee le ai el Pn De Se es □□ □ Roe oe) aS se ee a Ae 17 | Fea ae SSE ES foe ta ee center nnd eal al LTE Sional>-050Bm | 18 Malhe SOCAE ld ier aa Sg ce Eyer” we ee LTE Signal>-25d8m | 19 | A ads SR er a Ny □□ es ce Ns oe cer OF ae fo i, aH so ee we a cs Pine 4 er a Sige a i it □□ ae ee a eed yeas bes it dt PP eee a = as (fa ty ON eng □□ 20 | ee SO A hee gh ee aS gabe ie eed □□ 21 | Trial Ex. 29:010 (Defendant’s Drive Test Map).° 22 A review of Defendant’s drive test data shows: (1) 10.7% of the recorded 23 || signals were -85 dBm or stronger; (2) 24.7% of the recorded signals were from -86 24 | dBm to -95 dBm; (3) 44.5% of the recorded signals were from -96 dBm to -105 dBm; [26] 27 . . . . . ° Defendant’s drive test recorded multiple areas with signals below -105 dBm, which 28 | are not marked on Defendant’s Drive Test Map. Trial Ex. 29:010. [15] 1 and (4) 20.1% of the recorded signals were weaker than -106 dBm. See Trial Ex. 2 29:026-29:077.7 These figures are comparable to the results of Plaintiff’s drive test.8 3 All three maps show the areas near Verizon’s existing Oxen Corner and Castle 4 Heights facilities, to the south and northeast respectively, had signals strengths of -95 5 dBm to -86 dBm (marked in yellow in Plaintiff’s maps and in dark cyan in 6 Defendant’s map) or stronger (marked in green in Plaintiff’s maps and in dark blue in 7 Defendant’s map). Similarly, all three maps show large areas near the proposed 8 “Hillsboro” Facility with signal strengths of -96 dBm or lower (marked in cyan and 9 white in Plaintiff’s maps and in light cyan or unmarked in Defendant’s map), with 10 signal strengths below -105 dBm in the areas immediately to the east and west of the 11 proposed Facility and around Hillsboro Avenue to the northwest. 12 As stated, Defendant’s expert witness, Afflerbach, testified that -95 dBm is the 13 target level generally used by the telecommunications industry for in-vehicle coverage 14 and that -105 dBm is “the lowest or near the end of signals that can be received on a 15 cell phone” and “where the phone is just starting to receive … reliable signals.” Thus, 16 the parties’ drive test maps and data demonstrate that approximately two-thirds of the 17 geographic area does not meet the telecommunications industry’s standard for in18 vehicle coverage and that one-fifth of the area lacks reliable in-vehicle or outdoor [20] 7 Defendant’s report states that the full list of data includes data from “extraneous [21] areas outside the target [area].” Trial Ex. 29:010. As the data appears to have been 22 collected within, or in areas contiguous to, Defendant’s target area and as the court has no basis to determine which data falls outside the specified area, the court’s [23] calculations are based on the full data set provided by the City. 24 8 Plaintiff’s Drive Test Map covers a slightly different geographic area than 25 Defendant’s Drive Test Map. Compare Trial Ex. 24:015 (Plaintiff’s Drive Test Map) with Trial Ex. 29:010 (Defendant’s Drive Test Map). In particular, Plaintiff’s drive 26 test appears to have occurred over a smaller geographic area and did not measure 27 signal strength closer to Verizon’s existing Oxen Corner and Castle Heights facilities, where Afflerbach recorded the highest concentration of signals of -85 dBm or 28 stronger. 1 coverage altogether. Based on Defendant’s data, only one-tenth of the geographic 2 area has good, reliable in-building coverage (shown in green in Plaintiff’s Drive Test 3 Map and in dark blue in Defendant’s Drive Test Map), with that coverage clustered 4 near the existing Oxen Corner and Castle Heights facilities. 5 V. Relevant Factors to Assess the Significance of Gaps in Coverage 6 As stated, Palos Verdes, 583 F.3d at 727 , makes clear that courts consider a 7 “wide range of context-specific factors” in assessing the significance of alleged 8 coverage gaps, including the nature and character of the area and the number of 9 potential users in that area who may be affected by the alleged lack of service, 10 whether facilities are needed to improve weak signals or to fill a complete void in 11 coverage, whether gaps pose public safety risks, and the effects of gaps on roads, 12 highways, railways, and commercial districts. The court will discuss the most 13 relevant of these factors below. 14 A. In-Building Coverage 15 The geographic area around the proposed Facility is a residential neighborhood 16 within the City of Los Angeles, with approximately 650 residential structures, 27 17 multi-family structures, 55 commercial buildings, 15 street segments, and a school. 18 Dkt. 91 (Pl. Op. Trial Br.) at 17. Based on demographic data compiled by the Los 19 Angeles Times, Plaintiff estimates that approximately 1,680 people live within the 20 approximate coverage footprint of the proposed Facility. Id. at n.17. 21 Courts have held that “a gap in a provider’s in-home coverage that consists of 22 more than a few isolated pockets of inadequate in-home coverage suffices to show a 23 significant gap exists.” T-Mobile W. Corp. v. City of Agoura Hills, 2:09-cv-0907724 DSF (PJWx), 2010 WL 5313398 , at *8 (C.D. Cal. Dec. 20, 2010). “[W]here coverage 25 holes are large or frequent in number and size, and extend to the interior of buildings 26 in urban areas or to a significant number of residences in well-populated areas, such 27 coverage holes are actionable under the TCA.” MetroPCS Inc. v. City & Cnty. of San [28] 1 Francisco (MetroPCS II), 4:02-cv-03442-PJH, 2006 WL 1699580 , at *10 (N.D. Cal. 2 June 16, 2006), on remand from 400 F.3d 715 (italics in original). 3 The parties’ drive test maps and data demonstrate that only approximately 10% 4 of the relevant area currently has coverage of -85 dBm or stronger, which both parties’ 5 experts testified represents good, reliable in-building coverage. Approximately 306 35% of the relevant area has coverage of -86 dBm to -95 dBm, which the experts 7 testified represents good in-vehicle coverage and some level of in-building coverage. 8 Approximately 65-70% of the relevant area, particularly in the areas to the north and 9 west of the proposed Facility, has coverage of -96 dBm or weaker, which both experts 10 agreed is below the signal strength necessary for reliable in-building coverage. 11 Defendant’s own data shows that approximately 20% of the relevant area had signals 12 weaker than -105 dBm, which Afflerbach testified is “the lowest or near the end of 13 signals that can be received on a cell phone” and “where the phone is just starting to 14 receive … reliable signals.” Considering that approximately two-thirds of the area 15 lack reliable in-building coverage and that approximately one-fifth of the area lacks 16 reliable signal altogether, the evidence demonstrates there is a significant gap in 17 Verizon’s 4G LTE network coverage. 18 In its Opposition Trial Brief, Defendant argues that Defendant’s 2021 Drive 19 Test “confirmed what Verizon’s drive test and propagation maps show – that outdoor 20 and in-vehicle coverage is present throughout the entire coverage area and that large 21 areas within the coverage area have at least some level of in-building coverage.” Dkt. 22 98 (Def. Opp. Trial Br.) at 21-22 (citing Trial Ex. 27 (Afflerbach Decl.)). This 23 assertion is not supported by Defendant’s expert report or the evidence in the record. 24 See Trial Ex. 29:010, 29:026-29:077 (recognizing Afflerbach recorded signals lower 25 than -105 dBm, where Verizon’s network “may not provide reliable in-vehicle or 26 outdoor coverage”). 27 Defendant also contends the lack of a significant gap is demonstrated by the 28 declarations of Verizon’s customers who live in the vicinity of the proposed Facility 1 | and who have testified they are satisfied with Verizon’s network coverage. Dkt. 98 2 || (Def. Opp. Trial Br.) at 5; Trial Exs. 10-14, 19, 30-44. Defendant submitted maps that 3 | plot the addresses of these residents against Verizon’s coverage maps, two of which 4 || are reproduced below. [8] 9 : eg 10 " 4 [12] 13 9 9 14 ® 9. 9 B- ‘ [15] 9 7 16 g 9M y ms oO 18 PVi& [21] Legend 22 TE: RSRP - Coverage (0) 23 No coverage RSRP Level (DL) (dBm) > =-85 a gap RSRP Level (DL) (dBm) > =-95 24 | RSRP Level (DL) (dBm) > =-105 25 | Trial Ex. 30:009 (Theung Decl. Ex. 4) (the text “No coverage gap” appears in the 26 || original exhibit). 27 | /// 28 | /// [19] || Bee A ES Se a Pee. oe! ag = 2 | oer al |e : = Sets len 3 - Oe = | 2 ee. SS hee’ ae Wy 48 aaa at ony v4 SOF □□ □□ Por, alle 4 ai □□ □ im □□□ ef ae oo 4 ape; Sa Ut Tila, 5 | ae ae ie pl ar Py os □□□ oo a 7. h □□ 6 Ba nt es <a 9 a ae ah i Oy re ie ee □□□ aid F yc caw | □ re OOM dy =~ 9 ae S=e=—— Tey LTE RSAP oa Bains — 10 No coverage [eam i a5 gap □□ 12 | Trial Ex. 30:011 (Theung Decl. Ex. 5) (the text “No coverage gap” appears in the 13 | original exhibit).? 14 Defendant’s submitted resident declarations demonstrate these individuals 15 | wrote letters to oppose “strongly” the installation of the proposed Facility. Trial Exs. 16 | 8-15, 31-44. These residents have expressed concerns about the impact of the 17 | proposed Facility on their property values and the future development of the 18 | neighborhood, calling into question the credibility of their stated satisfaction with 19 | Verizon’s existing network coverage.'? See id. In sum, they are not disinterested [20] 21 | ° The colors displayed on this map do not correspond to the colors of Plaintiff's 2018 22 | Coverage Map and Drive Test Map. Here, green represents signals of -85 dBm or stronger, yellow represents signals of -90 dBm to -85 dBm, red represents signals of 23 | -95 dBm to -91 dBm, while pink represents signals of -100 dBm to -96 dBm. In other 24 || words, the yellow and red portions of this map correspond to the yellow portions of Plaintiff's Coverage Map and Drive Test Map. The proposed Facility is identified in 25 purple on this map. 26 | 10 These residents submitted their testimony through letters and declarations. They 27 | did not appear as witnesses at trial and were never cross-examined regarding their 38 experiences, and the court has not had the opportunity to observe their testimony or to [20] 1 Verizon customers responding to a consumer survey regarding their network service 2 and do not represent a statistical sample of Verizon’s customers in the neighborhood. 3 Furthermore, these residents reported in their declarations that they live in areas where 4 Plaintiff estimates wireless signal strength to be -95 dBm to -105 dBm or stronger. 5 See Trial Exs. 30-44. They all reside south of David Avenue and none live near 6 Hillsboro Avenue, where the parties’ drive tests reported the largest area of signals at 7 -96 dBm or weaker. 8 The fact that approximately thirty individuals who strongly oppose the 9 construction of the proposed Facility have submitted declarations stating they enjoy 10 good coverage and are satisfied with Verizon’s existing service is neither statistically 11 nor scientifically meaningful and is insufficient to demonstrate there is no significant 12 gap of coverage within the relevant geographic area. 13 In sum, the parties’ evidence demonstrates there is a significant gap of in14 building service coverage within the relevant area. Defendant’s offered resident 15 declarations are insufficient to demonstrate otherwise. This evidence of the lack of 16 reliable in-building coverage strongly supports finding the existence of a significant 17 gap in Verizon’s service coverage. 18 B. In-Vehicle Coverage 19 Courts have additionally considered the effect of alleged gaps on commuters 20 and highway traffic in determining their significance. Palo Verdes, 583 F.3d at 727 . 21 As previously stated, approximately 65-70% of the geographic area had signal 22 strength weaker than -95 dBm, which both Blanchard and Afflerbach testified is the 23 industry standard for in-vehicle coverage. [25] gauge their credibility. The court further notes their declarations, Trial Exs. 30-44, 26 contain duplicative and/or substantially similar language and appear to have been 27 drafted by or with the assistance of counsel. Accordingly, the court gives this testimony less weight than it would give to live testimony presented at trial under oath 28 and subject to cross-examination. 1 Additionally, Plaintiff submitted evidence before the October 30, 2018 hearing, 2 || regarding commuter traffic in the South Robertson Boulevard and Hillsboro 3 | Avenue/Cadillac Avenue areas. Trial Ex. 24:003-24:004. According to the City’s 4 | Department of Transportation website, the South Robertson Boulevard area supported 5 | a total of about 47,938 average daily trips and the Hillsboro Avenue/Cadillac Avenue 6 || area supported a total of about 15,758 average daily trips. Defendant does not dispute 7 | these figures. As indicated below, the parties’ drive test maps and data show that 8 | portions of both areas had signal strength below the industry standard for in-vehicle 9 | coverage (-96 dBm to -105 dBm) and that portions of Hillsboro Avenue had signal 10 | strength below the level at which “[Verizon’s network] may not provide reliable in11 | vehicle or outdoor coverage...” (-105 dBm). eceaeem mg Fre RSRP (dBm) 13 = i i □ -85<=x<=0 14 bon em 8th St O -95<=X<-85 | Hi HI -105<=x<-95 15 "UXb “Hillsb i . hop ° ae Sayer 17 ; "tig « se 7 Tr St ' - 1 ' wv 18 |. i de ays 19 i 7 South Robertson Blvd. = § © st Ww > Cay □ a 20 Wa, □ nak, Ny ‘ G 2 21 □□ 2 he nancdeaah § ‘ Cis) t Elements e 22 SIbsop, ag ate! x 23 +. j 2 4 Hillsboro ap 5 Sy Ohir é 4 5 ; 24 a” Car, is c Se mo 25 Me Ay. ae Te _ Deep Dive Analysis | 1@ 26 ~ High Sehoal Mey oP ye 27 | Trial Ex. 24:015 (Plaintiff's Drive Test Map) (red arrows and text added). 28 | /// [99] eee Pan | I bs ea Fin EAL || ee ee ‘a a8 i aly val 5 SON Sana ee tl □□□□□ 1 | fee Ante eS rn ee GOP rao ENG cae J a Gees perce at Pace □□□ ba heen (ie earn ae iene ania ghar eee 2 iors twat hd 2 a ah a a | □□ | ef i □□ □ me = Los Angeles, CA Tee es Sty) ot ae A ee bee RS Data Collected 0308/21-01/10021 3 aa Pk ee - ee aL ee Ss oe he ro ree by ; ioe ae re eh i 2 a J = ee SE fae ey rs “4 : 4 a ee □□ .- a ae 7 5 5 es ae! ip □□ 4 | Seeman TS □□ kt a hee ear □□□ □□□ | a er ten a mh Rae □□□ Tag □ eee Le Awa? ak ie _ = a eto Fe PS □□□ See at Se a : te f pe 4 TY □□□ aye lene Le ot 7 J dP. me Pad ee ee) it VE ah a | 7 | haar se. hae ae ees a Om | □□□ □□□ Sir a tay ae 5 =. cm □□□ 8 4 eal. Boe □ iP ot a J ae , pe, 7 =. □□ + “ a La | ae =| a ; feed ; □□ □□ 9 ~ □ Ei ? a as = Fr Here toe uo saan esl : Pola □ □ 10 | QOS aR Aa ee te ee □□ □□ □□ lanai a □□ ae ae Pe □□ oe at: a □ ee ea ees Drea a a [eee 1] ‘= ie + 1 a a a os | ’ ir i ae 7 ae See a Se eh rigs 0 Sh ees Ee p> fee □□□ □□ . ee pla tae wo et he □□ □□ fps a □□ ~ ot rz, inde ey 4 ct i J She □□ a eh □□ 13 TT oe Be □□ Ore | Rae an oe a 7 me yaa in, Pee bE □ Re Ee han x □□ □□ 14 | coals Rg ign □□□ Gone LIER titi Oe Benge Ti SS to re ODP Ate) a □□ 1 oe, F He Sirs. A rad og is a on ee ots. eta □□ Fi as nj La oS ae eh, dl Pi ge □□□ | fom 4s" □□ □□ 15 | tery Ee: vad bal | aly □□ ey ge eer As pes □□□ ieee ng a Se eed Seer ee ee oa ae Stag □□ 16 | pre ee I a re hes Be ee IE PS ees a page= es =) ig Pe kay ae ea Pe a) ae ake he □ □ 17 | (geet Mie tees 7 Pall at kes Pe ft Mae et LE! Red i) aed ed a rt ee ee LTE Signal = □□ □□□ 18 Ret Lak fe A BY. a □□□ “Ad 2 eee as 1G ee bLTE Signal □□□ dBm =f wi pee ares: nae pe ys a L Ps Ea | e* i zy a CLTE Signal >-105dBim □ Gale Ac SR De a ga aa EN tos We ads 19 | CRS SR Seg ee AO NB NS ee | a ey a ae a ren bay”. oe fee ys Ae ert | □ 20 weet Ti, i - oo rei 7 Seat ot > = ee =< □ Al a iow a □□ □ TI 21 | Trial Ex. 29:010 (Defendant’s Drive Test Map) (yellow text and arrows added). 22 As with the in-building coverage discussed above, this evidence strongly 23 | supports finding a significant gap in Verizon’s service coverage. 24 C. Dropped Calls and Reliability of Service 25 Plaintiff further contends that data on dropped calls indicates a significant gap 26 | in coverage in the area. Dkt. 91 (Pl. Op. Trial Br.) at 20-21. Plaintiff submitted a map 27 | of the locations of dropped calls Verizon observed during a one-week period in 2018, 28 | which 1s reproduced below. [93] Ce gir, Se =e ee ae “+ : a 1 | eae aie ah ES a I □□ >| ' 3. 7 Sots "fe =P "le #2 2 ne or Bry fas 2% ae wate Win, 3 Oa 2 "ee ts aes, * v it ee % : □ < a iy 4) se Bey eet ey em g So's... * ee me oar 2 et aah 5 gtr a oo "ais age flake i ae ages hae 2 Be a oo ay Se. ‘- @ ool # Re «2® 6 ae ae 2 ce" @ w 27a, 2 2 si 4 Lt ge ates 2 7, i, : = @ Moe Se 00 a 2 a2 □ : 3 ; 2 Bi oaueter | eae 7 = 2 a, 8 a #2 eo 2s “gh =e 2 8 8 oF * 2 2 DE) faa CE! AR 2 : 3 aS s Matis, ois Wags an 9 OR 2 oo pe ra = = % ae ang eae =", 5, ae - et ae oe meee 10 | =: at oe a” * wen a ee oe 2: Bog = a® a0 ae o™. e # & mee. gba i 22 Page cyt : a FO, fr mite Sr = F a = me yne™ ee eT 12 } Had oe SES 14 | a 9 "vate 5, go i □ ae 15 hearipo Saa Me BPs, G ge High tafeont a "tee 5 te □ Tey i eH, we [ 16 any ‘ if “ = oe H CORNER a 4% ; 18 | Trial Ex. 24:016. 19 When the locations of the dropped calls are mapped against Plaintiff's 2018 20 || Coverage Map, this figure shows that Verizon experienced the highest number of 21 | dropped calls in the northwestern portion of the map in the area of weakest averaged 22 || predicted signal strength. See Trial Ex. 24:017. In contrast, Verizon had few dropped 23 || calls near, and no dropped calls immediately adjacent to, the existing Oxen Corner 24 || and Castle Heights facilities in the southern and northeastern portions of the map, 25 | where the predicted coverage displays solid, contiguous areas with signals of -85 dBm 26 | or stronger (marked in green). 27 | /// 28 | /// IA cod ge, oe ms Sapa Foe ee ee a nt a oe Yeas □□ 78 , "See «= Fait Se ge half 3 neo "8. waite eo F coal et “2% ae "fee Po a 4 | oe ee ae 2 os al z= tig + pages Bo 8 2 at 5 a 5 fete ral al. | 6| eemie®. = Salt? rie A = Se lhe a 1 a g □□ □□ hen a i a | □ re pe = AF 7 a 9 dl 3 = ih - □ det oe Be 11 > aes ae La bl ell Sane =f 12 □□ ot Te □ Bt ee Pe eae: □ ae LTE: RSRP - Coverage (0) 16 -_ >) WB SRP Level (DL) (dBm) > =-85 as RSRP Level (DL) (dBm) > =-95 17 1) RSRP Level (DL} (dBm) > =-105 18 | Trial Ex. 24:017 (Plaintiff's 2018 Coverage Map with Dropped Calls). 19 Although the parties did not map the dropped calls against their respective drive 20 | test maps, a visual comparison of the dropped calls against those maps shows that the 21 | dropped calls are largely clustered in or near areas with signal strength of -105 dBm or 22 | lower. Compare Trial Ex. 24:017 (Plaintiff’s 2018 Coverage Map with Dropped 23 | Calls) with Trial Ex. 24:015 (Plaintiff's Drive Test Map) and Trial Ex. 29:010 24 | (Defendant’s Drive Test Map). 25 Plaintiff also submitted a RF coverage map of Verizon’s predicted RF signal 26 | strength with the Hillsboro Facility in place. Trial Ex. 26:004 (Plaintiff’s Expected 27 | Coverage Map). 28 | /// a5 [3] fie 5 wey [9] 10 Bese [14] Legend 16 LTE: RSRP - Coverage (0) 7 descr Paton dene | ae lle ge RSRP Level (DL) (dBm) > =-105 19 | Td. 20 A comparison of the map of dropped calls with Plaintiff's Expected Coverage 21 || Map shows that most of the dropped call locations would be covered within the 22 | geographic area where the Hillsboro Facility would provide a signal of -85 dBm or 23 | stronger. Compare Trial Ex. 24:016 with Trial Ex. 26:004 (Plaintiff's Expected 24 || Coverage Map). Based on these two maps, the court finds the proposed Facility is 25 | reasonably likely to reduce the number of dropped calls within the green area of 26 | coverage (with a signal strength of -85 dBm or stronger) surrounding the Hillsboro 27 | Facility. 28 | /// [26] 1 Defendant cites T-Mobile W. Corp. v. City & County of San Francisco (T2 Mobile SF), 4:10-cv-03011-CW, 2011 U.S. Dist. LEXIS 14579 , at *12 (N.D. Cal. 3 Feb. 14, 2011), to argue that courts have ruled in favor of defendant cities where a 4 plaintiff wireless telecommunications provider’s own data showed that only 1,198 5 calls were dropped out of 470,903 calls that originated within the neighborhood in a 6 two-week period. Dkt. 98 (Def. Opp. Trial Br.) at 20-21. There, the parties cross7 moved for partial summary judgment on the plaintiff’s claim that “the City did not 8 issue a decision in writing that is supported by substantial evidence,” in violation of § 9 332(c)(7)(B)(iii) of the TCA. T-Mobile SF, 2011 U.S. Dist. LEXIS 14579 at *1. T10 Mobile SF did not consider or discuss claims under § 332(c)(7)(B)(i)(II), the 11 Anacortes test, or whether the defendant’s denial decision constituted an effective 12 prohibition of service. See generally 2011 U.S. Dist. LEXIS 14579 . 13 Here, the court has already granted summary judgment in Defendant’s favor on 14 Plaintiff’s § 332(c)(7)(B)(iii) claim. Dkt. 85 at 20. T-Mobile SF, therefore, is 15 inapposite to the sole remaining issue of whether a significant gap in Verizon’s 16 service coverage exists. 17 D. Access to Emergency Services 18 According to Plaintiff, its RF engineer’s analysis found that the proposed 19 Facility would remedy poor or no 4G LTE coverage in the area that adversely impacts 20 individuals’ ability to place successfully an emergency call in the area. Dkt. 91 (Pl. 21 Op. Trial Br.) at 20 (citing Trial Exs. 24:002, 24:010). The cited exhibit states, in 22 relevant part: 23 As more of our voice calls move from CDMA to LTE, maintaining 24 good LTE coverage becomes more important for E911. CDMA is 25 Verizon’s 3G technology mostly used for voice calling and small data 26 usage. LTE is 4G technology focusing more on high-speed data 27 transfer and, more recently, voice calling. To provide better call 28 quality, voice calling, in the near future, will primarily be made using 1 LTE. Also, upcoming phones will start being released as LTE-only. 2 If an area has poor or no LTE coverage, the likelihood of placing an 3 E911 call is greatly impacted. The user would likely experience call 4 issues such as dropped calls and audio gaps and may not even be able 5 to make a call. 6 Trial Ex. 24:010. 7 Defendant, in turn, argues the proposed Facility is unnecessary because “under 8 federal law, a wireless telecommunications provider must transmit all wireless 911 9 calls, including those handled by another carrier.” Dkt. 98 (Def. Opp. Trial Br.) at 22 10 (quoting T-Mobile SF, 2011 U.S. Dist. LEXIS 14579 , at *14, and citing 47 C.F.R. § 11 20.18(b)). According to Defendant, “[t]here is no evidence to show that emergency 12 calls are not being adequately handled by Verizon’s own service coverage or that of 13 other wireless telecommunications providers in the area.” Id. 14 The court agrees with Defendant that Plaintiff’s evidence regarding Verizon’s 15 ability to receive emergency 911 calls in the relevant area is speculative. The RF 16 Engineer did not state that Verizon’s network was unable to receive emergency 911 17 calls or present any facts to establish that Verizon customers attempting to make such 18 calls from LTE-only phones in the area would experience impacted service. See Trial 19 Ex. 24:010. Plaintiff also failed to produce evidence of the signal strength needed to 20 make such calls, and the court has no basis to determine whether it is the same or less 21 than the signal strength needed for 4G LTE service. 22 Verizon, thus, fails to demonstrate that its network suffers from significant gaps 23 that adversely impact its customers’ ability to place emergency 911 calls. Defendant, 24 however, similarly does not present any evidence to establish that Verizon or other 25 wireless telecommunications providers in the area provide adequate emergency 911 26 call services. Accordingly, this factor neither supports nor weighs against a finding of 27 a significant gap in coverage. 28 / / / 1 E. Verizon’s National Coverage Map 2 The City contends that Verizon’s 2018 National Coverage Map (“NCM”) states 3 Verizon has “excellent” 4G LTE coverage in the relevant area, which casts doubt on 4 the reliability of Verizon’s claim of a significant gap. Dkt. 98 (Def. Opp. Trial Br.) at 5 23 (citing Administrative Record (“AR”) 11:1735).11 6 At trial, Blanchard testified the NCM is a more “general view” than the 7 localized coverage maps (such as Plaintiff’s 2018 Coverage Map) and is “about four 8 times less detailed in the base analysis.” Blanchard further testified that it was his 9 understanding that the national coverage map only shows the existence of outdoor 4G 10 LTE coverage over a particular geographic area. 11 Plaintiff additionally submitted a letter by Gregory D. Curry (“Curry”), 12 Plaintiff’s Manager of Marketing Operations, in which Curry stated Verizon’s 13 network coverage maps on its websites show predicted network coverage based on 14 expected RF propagation, but do not make a guarantee of coverage. Trial Ex. 24:02015 21. According to Curry, Verizon’s website also contains a Coverage Disclaimer, 16 which states in relevant part: 17 These maps are not a guarantee of coverage and contain areas of no 18 service, and are a general prediction of where rates apply based on our 19 internal data. Wireless service is subject to network and transmission 20 limitations, including cell site unavailability, particularly near 21 boundaries and in remote areas. Customer equipment, weather, 22 topography and other environmental considerations associated with [23] 24 11 Although the parties did not enter the NCM into evidence as a trial exhibit, the 25 parties’ discussion and testimony suggests they are referring to the coverage map accessible through Verizon’s website, a copy of which was attached to Trial Exhibit 26 38 (Grinblat Decl. Exs. 1-2). Accordingly, the court will assume this website map is 27 the NCM. See Trial Ex. 24:020 (“Verizon’s website maps show that the company has 4G LTE coverage around the Hillsboro site. Those website maps, however, represent 28 general network coverage capabilities….”). 1 radio technology also affect service and service may vary significantly 2 within buildings. Some information on service [is from] outside the 3 Verizon Wireless proprietary network, and we cannot vouch for its 4 accuracy. [5] Id. 6 Defendant did not present any evidence to demonstrate the NCM is a more 7 accurate representation of Verizon’s network coverage than Plaintiff’s 2018 Coverage 8 Map or the parties’ drive test maps, or to establish that Verizon made such a 9 representation. Similarly, Defendant did not refute Plaintiff’s evidence of the 10 Coverage Disclaimer. Accordingly, while Verizon’s statement and representation via 11 the NCM that it had “excellent” 4G LTE service in the relevant area stands as 12 evidence against the existence of a significant gap, the NCM is not determinative of 13 the issue in light of the stronger evidence presented by both parties. 14 VI. Conclusions of Fact Regarding Coverage 15 Based on Plaintiff’s 2018 Coverage Map, Plaintiff’s Drive Test Map, and 16 Defendant’s Drive Test Map and underlying data, and the testimony of the parties’ 17 expert witnesses Blanchard and Afflerbach, and after considering all additional 18 evidence presented by the parties, the court finds Plaintiff has proven by a 19 preponderance of the evidence the existence of a significant gap in Verizon’s service 20 coverage in the geographic area near the proposed Hillsboro Facility. 21 CONCLUSIONS OF LAW 22 I. Plaintiff’s Effective Prohibition Claim 23 A locality violates the effective prohibition clause if it prevents a wireless 24 provider from closing a “significant gap” in coverage. Anacortes, 572 F.3d at 995 . 25 As stated, an effective prohibition claim “involves a two-part analysis requiring (1) 26 the showing of a ‘significant gap’ in service coverage and (2) some inquiry into the 27 feasibility of alternative facilities or site locations.” Id. [28] 1 In its September 1, 2020 order on the parties’ cross-motions for summary 2 judgment, the court granted partial summary judgment in Plaintiff’s favor and against 3 Defendant on the second prong of the Anacortes test, finding: (1) Verizon made a 4 prima facie showing that the proposed Facility was the least intrusive means to 5 remedy the claimed, significant coverage gap identified by Verizon and that Verizon 6 had identified and considered alternatives; and (2) that the City failed to meet its 7 burden to rebut Verizon’s prima facie showing by identifying a suitable alternative to 8 the proposed Facility. Dkt. 85 at 28-31. 9 As the court now finds the evidence demonstrates the existence of a significant 10 gap in Verizon’s service coverage in the relevant area, the court holds the Denial 11 Decision had the effect of prohibiting Verizon’s provision of personal wireless service 12 in violation of § 332(c)(7)(B)(i)(II). The court, therefore, GRANTS Judgment in 13 Plaintiff’s favor on the second and fourth causes of action. 14 II. Plaintiff’s Request for Injunctive Relief 15 Plaintiff seeks a writ of mandate requiring the City to set aside, vacate, and 16 rescind the Denial Decision and an injunction requiring the City to issue all permits 17 and approvals required for the proposed Facility. FAC Prayer ¶¶ 5-6; Dkt. 91 (Pl. Op. 18 Trial Br.) at 25. 19 While Defendant recognizes that injunctive relief is available for violations of 20 the TCA, the City argues that Verizon is not automatically entitled to injunctive relief 21 and that the court should remand this action to the South LA APC to allow the City 22 and Verizon to work cooperatively on designing a better version of the proposed 23 Facility. Dkt. 98 (Def. Opp. Trial Br.) at 23-24. 24 It has been nearly seven years since Verizon filed its original application to 25 construct and operate a facility at this location, in November 2014. After the City 26 denied the original proposal, Version filed the instant action, reached a settlement with 27 the City, submitted a revised application after discussions with ZA Weintraub, and 28 obtained an initial approval through the City’s planning process. Over two and a half 1 additional years have passed since the South LA APC denied Plaintiff’s revised 2 application on appeal. Remanding this action would only further delay Verizon’s 3 ability to construct and operate the Hillsboro Facility and enable the City and the 4 residents who oppose the proposed Facility further opportunities to undermine 5 approval of the 2017 Project Application. 6 In contrast, the LADCP already approved the 2017 Project Application once, 7 and Defendant does not identify any specific improvements that are needed. See 8 generally Dkt. 98 (Def. Opp. Trial Br.). A remand would also conflict with 9 Congress’s clearly stated intent that effective prohibition claims be heard and decided 10 on an expedited basis. See 47 U.S.C. § 332 (c)(7)(B)(v). 11 Accordingly, the court DENIES Defendant’s request for a remand, finding the 12 potential benefits of a remand would be greatly outweighed by the certainty of 13 additional delay. 14 RULING 15 For the reasons stated herein, the court finds the City’s Denial Decision 16 violated § 332(c)(7)(B)(i)(II) of the TCA by effectively prohibiting Verizon’s ability 17 to fill a significant gap in its service coverage and provision of 4G LTE wireless 18 services. Plaintiff, therefore, is entitled to Judgment in its favor on the second and 19 fourth causes of action of the FAC. 20 The court GRANTS Judgment in Plaintiff’s favor and ISSUES (1) a Writ of 21 Mandate under Cal. Code Civ. Proc. § 1094.5 ORDERING the City of Los Angeles to 22 set aside, vacate, and rescind the Denial Decision, and (2) an Injunction ORDERING 23 the City to issue promptly all permits and other approvals, along with all other permits 24 and environmental review approval authorizations, necessary to allow Verizon to 25 proceed with the placement, installation, construction, and operation of the proposed 26 Facility, as set forth in the 2017 Project Application. 27 / / / 28 / / / 1 Plaintiff shall file a proposed Judgment within 21 days of this ruling, which 2 || accurately states the court’s rulings and complies with all statutory requirements and 3 | court rules, including Fed. R. Civ. P. 65(d). [4] 5 IT IS SO ORDERED. [6] 7 | Dated: August 24, 2021 9 FERNANDO L. AENLLE-ROCHA 10 United States District Judge