                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1682


T-MOBILE NORTHEAST LLC,

                Plaintiff – Appellant,

           v.

HOWARD COUNTY BOARD OF APPEALS,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:11-cv-00729-RDB)


Argued:   March 21, 2013                   Decided:   May 3, 2013


Before WILKINSON, KING, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge King concurred.


ARGUED: Thomas Scott Thompson, DAVIS WRIGHT TREMAINE, LLP,
Washington, D.C., for Appellant.   Melissa Shane Whipkey, HOWARD
COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. ON
BRIEF: Margaret Ann Nolan, County Solicitor, HOWARD COUNTY
OFFICE OF LAW, Ellicott City, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

       T-Mobile     Northeast     LLC     (“T-Mobile”)            challenges         a    zoning

decision by the Howard County Board of Appeals (the “Board”)

denying T-Mobile’s application for a conditional use permit to

construct a communications tower on the property of a church

located in the County.            T-Mobile argues that the Board violated

the    Telecommunications        Act     of    1996      in   denying      the      company’s

permit application because the decision was not supported by

substantial        evidence      or,     in        the    alternative,          because      it

effectively prohibited the provision of wireless services.

       But our review reveals that substantial evidence supports

the Board’s conclusion that T-Mobile did not diligently seek to

site   the   tower      on   government       property,       as       required      by   local

zoning regulations.             And we cannot conclude that the Board’s

denial constitutes an effective prohibition of service because

T-Mobile     did    not      demonstrate       that       there    are     no       reasonable

alternatives       to     the    church       site       to   remedy          its    coverage

deficiency.     Therefore, we affirm.



                                              I.

       T-Mobile, a licensed personal wireless services provider,

determined that it had a coverage deficiency along a portion of

Burntwoods    Road      in    Howard     County,         Maryland.        To     remedy      the

deficiency,    T-Mobile         sought    to       construct       a    new     facility,     a

                                              2
“stealth” telecommunications monopole, at the rear of Shepherd

of the Glen Lutheran Church property in Glenwood, Maryland (the

“site”).   T-Mobile considered siting the facility at four other

locations-Glenelg      High    School,          Walnut       Springs      Nursery,

Gethsemane Baptist Church, and a cluster of amateur “ham” radio

towers-but ultimately determined that each of these locations

was either not technically feasible or practically unavailable.

     The   site     selected   by       T-Mobile      is   zoned    as    a   Rural

Residential-Density Exchange Option District.                    Howard County’s

zoning   regulations    require     a    conditional       use   permit   for   the

construction   of    communications          towers   on    Rural   Residential-

Density Exchange Option District properties.                In pertinent part,

Howard County’s zoning regulations provide:

     The Hearing Authority shall have the power to permit
     conditional uses, provided the following general
     standards are met: . . .

     The proposed use at the proposed location will not
     have adverse effects on vicinal properties above and
     beyond those ordinarily associated with such uses. In
     evaluating the plan under this standard, the Hearing
     Authority shall consider whether: . . .

     The ingress and egress drives will provide safe access
     with   adequate   sight  distance,   based   on   actual
     conditions,   and   with  adequate    acceleration   and
     deceleration lanes where appropriate. . . .

     An applicant for a new communication tower shall
     demonstrate that a diligent effort has been made to
     locate the proposed communication facilities on a
     government structure or, on an existing structure or
     within a nonresidential zoning district, and that due
     to    valid    considerations,   including   physical


                                         3
       constraints,    and     economic    or    technological
       feasibility, no appropriate location is available.

Howard County Zoning Regulations §§ 131.B, 131.N.14.b.(1). The

regulations also provide that

       The applicant for a conditional use shall have the
       burden of proof, which shall be by a preponderance of
       the evidence and which shall include the burden of
       going forward with the evidence and the burden of
       persuasion on all questions of fact which are to be
       determined by the Hearing Authority or are required to
       meet any provisions of these regulations.

Id. § 131.G.

       On November 20, 2009, T-Mobile submitted a “Conditional Use

Petition” to the Howard County Hearing Authority requesting to

build a wireless facility on the site.                On February 18, 2010,

the Howard County Department of Planning and Zoning issued a

Technical Staff Report finding that T-Mobile had satisfied the

criteria for a conditional use permit and recommending that T-

Mobile’s petition be granted.

       After   holding    a   hearing,   the    Hearing      Examiner    issued   a

decision denying T-Mobile’s petition on March 15, 2010.                      In so

ruling,    the   Hearing      Examiner       found   there    were      no   “sight

distance” or safe access issues and that T-Mobile had complied

with    regulations      regarding   the      investigation     of   alternative

sites, but denied the petition due to concerns over the size of

T-Mobile’s proposed equipment compound.




                                         4
       T-Mobile         appealed     to    the       Board.        The       Board    held    three

public hearings concerning T-Mobile’s application during which

participants questioned T-Mobile’s efforts to site the facility

at     alternative         locations.             In     particular,            Board      members

expressed      concern        that       T-Mobile      had        not    engaged      in     formal

negotiations with Glenelg High School to locate the facility

there.        The Board denied T-Mobile’s petition on February 16,

2011 on grounds that the company had failed to meet its burden

to demonstrate that the proposed ingress and egress to the site

would “provide safe access with adequate sight distance” and to

show that it had made a diligent effort to site the facility on

government property.              J.A. 135.

       T-Mobile         brought    the     present      action          in    federal      district

court    on    March       18,    2011,    seeking          declaratory         and   injunctive

relief     from      the      Board’s      decision.              Specifically,            T-Mobile

alleged       that      the      Board’s     denial         of     the       company’s       permit

application        violated       two     provisions         of    the       Telecommunications

Act, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (B)(iii), and Maryland

law.     T-Mobile moved for summary judgment on August 26, 2011,

and soon thereafter the Board filed a cross-motion for summary

judgment.          On    March     30,    2012,       the    district         court    denied   T-

Mobile’s motion and entered summary judgment in favor of the

Board.     T-Mobile Ne. LLC v. Howard Cnty. Bd. of Appeals, 2012 WL

1123043,      at     *10    (D.    Md.     March      30,     2012)      (“Howard       County”).

                                                 5
Following the district court’s denial of T-Mobile’s Motion to

Reconsider, T-Mobile timely appealed to this Court.



                                            II.

       We review a district court’s decision on summary judgment

de   novo,    “applying       the    same    legal       standards       as    the    district

court.”      T-Mobile Ne. LLC v. City of Newport News, Va., 674 F.3d

380,    384-85       (4th     Cir.       2012)       (“Newport         News”)    (quotation

omitted).      “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).                    In determining whether a party is

entitled      to    summary     judgment,           we    consider       “all    facts      and

reasonable inferences therefrom in the light most favorable to

the nonmoving party.”            Newport News, 674 F.3d at 385 (quotation

marks omitted).

       On    appeal,       T-Mobile      contends        that    the    district      court’s

decision      was    contrary       to    the       Telecommunications          Act,       which

Congress enacted to facilitate the development and proliferation

of new telecommunications technology and infrastructure.                                    See

Pub. L. No. 104-104, 110 Stat. 56 (1996).                                In drafting the

statute,       Congress        sought       to       preserve          local    and        state

governments’        traditional          control      over       land    use    and     zoning

decisions,         while     also     ensuring           their     decisions         did     not

                                                6
constitute    an       undue    impediment         to    the     rapid    deployment     of

wireless     communications           technology.          360̊        Commc’ns    Co.    of

Charlottesville v. Bd. of Supervisors of Albemarle Cnty., 211

F.3d 79, 86 (4th Cir. 2011) (“Albemarle County”).

      T-Mobile argues that the Board’s decision ran afoul of two

provisions        of     the     Telecommunications               Act:     (1)      Section

332(c)(7)(B)(iii),         which       requires         that     state     or     municipal

decisions denying an application to construct a wireless service

facility be “supported by substantial evidence,” and (2) Section

332(c)(7)(B)(i)(II),           which    provides        that   “[t]he      regulation    of

the   placement,        construction,         and       modification        of    personal

wireless service facilities by any State or local government . .

.   shall   not    prohibit      or    have       the   effect    of     prohibiting     the

provision of personal wireless services.” 1                    We disagree.




      1
       T-Mobile also contends that the Board’s decision violated
Maryland Law, which requires that a Board’s decision be in
accordance with local zoning regulations and supported by facts
in the record.    Md. Code. Ann. art 25A, § 5; J.A. 23-24.    To
satisfy   Section    332(c)(7)(B)(iii)’s   substantial  evidence
requirement, a zoning decision must comply with state and
municipal zoning law. Mobile Cent., LLC v. Wyandotte Cnty., 546
F.3d 1299, 1307 (10th Cir. 2008);      MetroPCS, Inc. v. City &
Cnty. of San Francisco, 400 F.3d 715, 723–24 (9th Cir. 2005);
Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d
Cir. 1999). Thus, as the district court correctly concluded, T-
Mobile’s contention that the decision was not in accord with
Maryland law merges with its substantial evidence claim under
the Telecommunications Act.    Howard Cnty., 2012 WL 1123043, at
*4.


                                              7
                                              A.

      For purposes of actions under Section 332(c)(7)(B)(iii), we

have held that “ ‘[s]ubstantial evidence’ is more than a mere

scintilla, but less than a preponderance,”                           Newport News, 674

F.3d at 385, and is “such relevant evidence as a reasonable mind

might    accept     as    adequate       to    support         a   conclusion,”        AT&T

Wireless     PCS,   Inc.    v.    City    Council         of   the    City   of    Virginia

Beach, 155     F.3d      423,    430    (4th       Cir.   1998)      (quoting     Universal

Camera v. NLRB, 340 U.S. 474, 488 (1951)).                         Under this standard,

we must affirm if the Board’s decision was reasonable, even if

we   would   have     reached     a     different         conclusion     independently.

Newport News, 674 F.3d at 386.

      T-Mobile contends that substantial evidence did not support

the Board’s conclusion that T-Mobile failed to make a diligent

effort to site the facility on government property, as required

by   local    regulations.             Howard       County     Zoning    Regulations     §

131.N.14.b.(1).          In particular, the Board found that T-Mobile

failed to make adequate efforts to site the facility at Glenelg

High School because the company

        made only telephone calls to the Howard County School
        Facilities Office about building a telecommunications
        light pole at the Glenelg High School [and] had not
        identified anyone [it] had talked to as having
        authority to decide on acceptance of the monopole
        installation  on   the  particular  property.    More
        importantly, [T-Mobile] had not demonstrated to the
        Board that it had submitted written proposals with
        specifications to any person of authority to obtain

                                              8
      acceptance of installation of the monopole on a
      particular property.    A telephone call to an entity
      without more regarding locating a cell tower on a
      particular property is hardly sufficient to comport
      with the requirement of “diligent effort.”

J.A. 136.

      On appeal, T-Mobile argues that it diligently sought to

site the tower at Glenelg High School as evidenced by the fact

that it received (1) a verbal rejection from an unidentified

employee    with   the     Howard     County      Public    School   System    (the

“School    System”)      facilities      office    and,    subsequently,      (2)   a

written    rejection     from   School     System    Chief    Operating    Officer

Teresa Alban.

      Regarding the verbal rejection, Mearl Kemberling, a site

acquisition specialist for T-Mobile, made a phone call to the

School System facilities office to gauge its interest in placing

the   facility     on    Glenelg    High      School      grounds.      Kemberling

attested    that   the    person    he    spoke    with    said   the   facilities

office recently had rejected a proposal from AT&T Wireless to

build a telecommunications facility at the high school and was

not interested in T-Mobile’s offer either.

      But Kemberling was unable to identify the person with whom

he spoke and did not know if that person had authority to make a

decision regarding whether to install a wireless facility on

school    property.       Nor   could     Kemberling       provide   any   written

record of the phone call, contending it had been destroyed in a

                                          9
flood.      Indeed, during oral argument on the summary judgment

motions, T-Mobile’s counsel acknowledged that Kemberling “was a

little bit sloppy” and “should have at least kept track of who

he was talking to and what their position was.”                          J.A. 596–97.

In such circumstances, we cannot say that the Board unreasonably

concluded that Kemberling’s single phone call did not constitute

a diligent effort to site the facility at Glenelg High School.

      Additionally, School System Chief Operating Officer Alban’s

letter to T-Mobile, dated October 11, 2010, stated simply: “Per

your request to provide a written statement, our response is

that we have denied the request to put a cell phone tower on

school system property.”             J.A. 123.    T-Mobile contends that this

letter was an “unequivocal[]” denial of its request to install a

wireless facility at Glenelg High School.                       Appellant’s Br. at

36.

      But, as the district court correctly noted, the letter was

issued the day before the Board’s last hearing on T-Mobile’s

application      and   “did    not     contain     any    specifics       as   to    the

request.”     Howard Cnty., 2012 WL 1123043, at *6.                    T-Mobile also

failed to produce any independent documentation regarding the

specifics     of    its     “request.”         Moreover,       given   the     letter’s

brevity,    we     cannot    determine     whether       the    letter    rejected     a

particular       proposal     from     T-Mobile    or     generally       denied      all

requests to install wireless facilities at the school.                              Thus,

                                          10
the Board reasonably concluded that the letter did not satisfy

T-Mobile’s burden to show that it had made a diligent effort to

locate the tower at Glenelg High School, and therefore the Board

did        not    commit    reversible      error     in     denying       T-Mobile’s

application. 2



                                           B.

       Having      determined     that    substantial      evidence    supports      the

Board’s decision, we next must decide whether the denial of T-

Mobile’s         permit    application     is     “tantamount”     to      a     general

prohibition          of      service,        in     violation         of         Section

332(c)(7)(B)(i)(II).            T-Mobile Ne. LLC v. Fairfax Cnty. Bd. of

Supervisors,        672    F.3d    259,    266    (4th     Cir.   2012)        (“Fairfax

County”).

       To prevail on a theory that the denial of a petition for a

particular site effectively prohibits service, a plaintiff must

show (1) that there is “a legally cognizable deficit in coverage

amounting to an effective absence of coverage, and (2) that it

lacks reasonable alternative sites to provide coverage.”                         Id. at

268.       “[A] plaintiff’s burden to prove a violation of [Section

       2
        Because   substantial  evidence  supports   the  Board’s
conclusion that T-Mobile failed to make diligent efforts to site
the facility on government property, we need not address the
Board’s alternative basis for denying T-Mobile’s petition-that
T-Mobile failed to provide adequate evidence of safe access to
the site.


                                           11
332(c)(7)(B)(i)(II)]           is    substantial        and     is    particularly          heavy

when . . . the plaintiff already provides some level of wireless

service to the area.”                Id.     If a plaintiff fails to meet its

burden    on    either    of    the    two    prongs,         it     is    not    entitled        to

relief.       Id. at 266, 268.

       To show a lack of reasonable alternative sites, a plaintiff

must     “demonstrate         that    further      reasonable             efforts      to    gain

approval for alternative facilities would be fruitless.”                                         New

Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Sup’rs (“New

Cingular       II”),    674    F.3d    270,     277      (4th       Cir.    2012)      (quoting

Fairfax Cnty., 872 F.3d at 268).                       This burden is satisfied if

the plaintiff shows that reasonable efforts to obtain approval

for alternative sites are “so likely to be fruitless that it is

a waste of time to try.”               Id. at 277 (quotations omitted).                          In

assessing       whether        further       efforts          to     gain        approval         of

alternative facilities would be “fruitless,” we also consider a

zoning    board’s       past    decisions         on    applications             for   wireless

facilities.       Fairfax Cnty., 672 F.3d at 269.

       Here, T-Mobile does not dispute that there is some level of

wireless      coverage    in    the    area.           J.A.    450-56       (noting,        in   an

expert report prepared for and relied upon by T-Mobile, that

there    is    not     “reliable”      in-building            and    in-vehicle        wireless

coverage in the area served by the proposed site).                                     Thus, T-



                                             12
Mobile’s burden to show a lack of reasonable alternatives is

“particularly heavy.”          Fairfax Cnty., 672 F.3d at 268.

       As we explained previously, the Board reasonably determined

that       T-Mobile   failed   to    produce     sufficient      evidence     that    it

diligently pursued siting the facility at Glenelg High School.

See supra Part II.A.           In such circumstances, we cannot presently

conclude that T-Mobile has met its “particularly heavy” burden

of showing that further efforts to locate the facility at an

alternative       site-Glenelg       High   School,     in    particular-would       be

“fruitless.”          Moreover, it is undisputed that the Board has a

strong       record    of   approving       conditional       use   permits:     Since

October 2008, the Board has approved five of the six conditional

use    permit     applications       submitted     by   T-Mobile.           Therefore,

because T-Mobile has failed to satisfy its burden of showing a

lack of reasonable alternatives to the proposed site, it is not

entitled to relief under Section 332(c)(7)(B)(i)(II). 3


                                        III.

       In sum, substantial evidence supported the Board’s decision

that       T-Mobile   failed    to   make    diligent        efforts   to    site    the

facility at Glenelg High School.                 And T-Mobile did not satisfy


       3
       Because we conclude that T-Mobile failed to satisfy its
burden on the lack of reasonable alternatives prong, we need
not, and thus do not, address the effective absence of coverage
prong. Fairfax Cnty., 672 F.3d at 266, 268.


                                            13
its   “particularly   heavy”   burden   to   show   that   there   were   no

reasonable alternative sites to provide coverage.            Accordingly,

we affirm.

                                                                   AFFIRMED




                                   14
