Petition of Cellco Partnership d/b/a Verizon Wireless

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0286, Petition of Cellco Partnership
d/b/a Verizon Wireless, the court on September 9, 2020, issued
the following order:

In this petition for a writ of certiorari, see Sup. Ct. R. 11, the petitioner,
Cellco Partnership d/b/a Verizon Wireless (Verizon), challenges the decision of
the respondent, the Commissioner of the New Hampshire Department of
Natural and Cultural Resources (DNCR), denying Verizon’s application to lease
space on an antenna tower located on top of Cannon Mountain in Franconia
Notch State Park. We affirm.

The record supports the following facts. In February 2021, Verizon
applied to DNCR “to collocate a wireless communications facility at an existing
multi-user tower near the summit of [Cannon] Mountain.” Verizon anticipated
that it would “enter into a standard lease agreement, at fair market commercial
rates, similar to the contracts of the Verizon peers with operations already in
service at Cannon Mountain.” In April 2021, DNCR notified Verizon that,
pursuant to its “discretionary authority to enter into leases of state
reservations under RSA 227-H:9,” it had “determined that [DNCR] cannot
accept [Verizon’s] request to lease space on the Cannon Mountain Ski Area
Observation Deck Facility.” See RSA 227-H:9 (2019) (“The commissioner may
make contracts for the leasing of privileges and concessions on state
reservations . . . .”).

Verizon requested reconsideration of DNCR’s decision. In response,
DNCR explained that its decision was “not a permitting/licensing decision or
other similar administrative proceeding” subject to the provisions of RSA
chapter 541, which allows appeals from administrative decisions under certain
circumstances, RSA 541:6 (2021), but, rather, was “a discretionary decision
not to enter into a lease on State land.” As such, DNCR was “aware of no
applicable statute invoking RSA [chapter] 541 with respect to this subject
matter.” DNCR reiterated that it was “not in a position to lease space to
additional communications tenants at this time.”

This petition followed. Verizon asserted in its petition that DNCR’s
decision was “unlawful and unreasonable” because it: (1) contains mistakes of
fact concerning the proposed antenna attachment, equipment shelter, and “its
failure to recognize the link between robust, reliable communications and
public outdoor recreational uses”; (2) reflects “several erroneous interpretations
and applications of” DNCR’s Policy on Use and Management of DNCR
Communication Facilities (Policy), including failing to recognize that Verizon’s
equipment is “state of the art,” presuming that Verizon is in a position to
remove existing equipment from the facility, and penalizing Verizon “for not
being able to reduce gear via its proposal”; (3) misapplies the Land and Water
Conservation Fund (LWCF) requirements; and (4) violates the Federal
Telecommunications Act of 1996 (TCA). Verizon asserts that this court has
jurisdiction to hear the case pursuant to RSA 490:4 (2010) and Supreme Court
Rules 10 and 11 “because no statute governs the appeal of DNCR’s decision,
and Verizon has no other legal remedy to appeal the decision.”

Review on certiorari is an extraordinary remedy, usually available only in
the absence of a right to appeal, and only at the discretion of the court.
Petition of Chase Home for Children, 155 N.H. 528, 532 (2007). Certiorari
requires that we determine whether the agency acted illegally with respect to
jurisdiction, authority or observance of the law, or has unsustainably exercised
its discretion or acted arbitrarily, unreasonably or capriciously. Id.

Verizon first argues that DNCR’s Policy was contrary to its rulemaking
authority under Nevins v. New Hampshire Department of Resources and
Economic Development, 147 N.H. 484 (2002), and that the lack of rulemaking
resulted in DNCR engaging in ad hoc decision making whereby its “failure to
afford due process for existing site installations enabled DNCR to pre-
determine the merits of Verizon’s proposal, to create new standards of review
that are not set forth in the Policy, and to make unsupported findings based on
mistakes of fact and errors of law.” DNCR asserts that Verizon failed to
preserve these arguments.

In order to preserve an argument for review, we generally require issues
to be raised at the earliest possible time because trial forums should have a full
opportunity to come to sound conclusions and correct errors in the first
instance. Bedford Sch. Dist. v. State of N.H., 171 N.H. 246, 250 (2018).
Furthermore, in the context of an agency appeal, we have determined that
issues are not properly preserved for appellate review when the record shows
that, not only did the plaintiff fail to raise them initially before the
administrative agency, but also failed to raise them in their appeal to this court
pursuant to Supreme Court Rule 10(1)(c). See Appeal of Bosselait, 130 N.H.
604, 606-07 (1998). The same preservation requirement applies when we
engage in certiorari review of an administrative agency’s decision. See Petition
of Parker, 158 N.H. 499, 504 (2009); see also Sup. Ct. R. 11 (2)(b), (i).

The record supports that Verizon did not raise these issues before DNCR
either in its application or in its motion for rehearing. Indeed, Verizon
acknowledges that “the absence of rulemaking was not directly raised in [its]
Application” to DNCR. Nor did Verizon raise these issues in its petition for
certiorari. Accordingly, we agree with DNCR that Verizon did not preserve
these issues for our review, and we turn to consider Verizon’s remaining
arguments.

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 Verizon next argues that DNCR “misinterpreted and misapplied its Policy
to the detriment of the public safety and welfare of New Hampshire citizens,
whose welfare is stated as the primary goal of the Policy.” Citing section II of
the Policy, DNCR explained that “the ultimate Goal of the Policy is to have
state-owned locations cleared of all communications appurtenances and
machinery.” Because the site at issue was “already at capacity,” DNCR
determined that “[p]rojects that result in net increases in communications
equipment,” as did Verizon’s, “are inconsistent with the Goal of the Policy.”
Verizon does not challenge DNCR’s paramount determination that there is no
additional capacity on the facility at the Cannon Mountain site. Given,
therefore, that DNCR’s determination on that issue is undisputed, we are
unable to conclude that its denial of Verizon’s application was an
unsustainable exercise of discretion or arbitrary, unreasonable or capricious.

Verizon also asserts that DNCR’s decision violated federal law. According
to Verizon, although the “TCA prohibits states and local governments from
taking actions that prohibit or have the effect of prohibiting wireless
communications services,” see 47 U.S.C. § 332(c)(7)(B)(i)(II) (2018), DNCR’s
decision “has the effect of prohibiting Verizon from providing its service in
Franconia Notch.” Further, Verizon argues, because the TCA “prohibits states
and local governments from unreasonably discriminating among wireless
carriers,” see 47 U.S.C. § 332(c)(7)(B)(i)(I) (2018), DNCR’s prior approval of two
other wireless carriers at the site “unreasonably and unlawfully discriminated”
against it.

Section 332(c) of 47 U.S.C. governs the regulatory treatment of mobile
services. 47 U.S.C. § 332(c) (2018). Subsection 7, titled “[p]reservation of local
zoning authority,” provides:

(A) General authority

Except as provided in this paragraph, nothing in this chapter
shall limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service
facilities.

(B) Limitations

(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any State or
local government or instrumentality thereof—

(I) shall not unreasonably discriminate among providers of
functionally equivalent services; and

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 (II) shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.

47 U.S.C. § 332(c)(7)(A), (B)(i)(I), (II) (bolding omitted). DNCR counters that,
even if the TCA applies to its nonregulatory decision not to enter into a lease
with Verizon, the federal law cannot reasonably be read to mean that because
DNCR previously leased space to other providers when space was available, “it
must therefore lease antenna space to all.”

Other than its conclusory statements that DNCR’s decision had “the
effect of prohibiting Verizon from providing its service in Franconia Notch” and
“unreasonably and unlawfully discriminated” against it, Verizon provides no
analysis of the federal statute, cites no authority interpreting and applying
either the “effect of prohibiting” language in section 332(c)(7)(B)(i)(II), or the
“unreasonably discriminate” language in section 332(c)(7)(B)(i)(I), or explains
how the DNCR’s decision constituted “regulation” of personal wireless facilities
under section 332(c)(7)(B)(i). Such undeveloped legal argument is insufficient
to warrant judicial review. See White v. Auger, 171 N.H. 660, 665 (2019).

Finally, Verizon argues that DNCR misapplied the requirements of the
LWCF funding grant, thereby “wrongly decid[ing] that Verizon’s proposed
equipment shed would trigger a prohibited conversion of state-owned public
land” under the grant. DNCR explained in its decision, however, that “[e]ven if
the proposed project were allowable under the Policy, it faces an additional
hurdle due to the LWCF encumbrances in effect at Cannon Mountain.”
DNCR’s construction of the LWCF fund requirements, therefore, was secondary
to its paramount — and unchallenged — determination that there is currently
no additional capacity on the facility at Cannon Mountain. Accordingly, we
decline to address Verizon’s argument regarding this additional ground for
denial.

We conclude that Verizon has failed to establish that, in declining to
accept Verizon’s request to lease space on the Cannon Mountain Ski Area
Observation Deck Facility, DNCR acted illegally with respect to jurisdiction,
authority or observance of the law, or unsustainably exercised its discretion or
acted arbitrarily, unreasonably or capriciously. See Petition of Chase Home,
155 N.H. at 532.
Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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