UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ TOWERCO 2013, LLC, │ Plaintiff-Appellee/Cross-Appellant, │ │ v. > Nos. 23-3768/3799 │ │ BERLIN TOWNSHIP BOARD OF TRUSTEES; BERLIN │ TOWNSHIP, OHIO, │ Defendants-Appellants/Cross-Appellees. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:22-cv-03294—Algenon L. Marbley, District Judge.

Argued: June 13, 2024

Decided and Filed: August 6, 2024

Before: CLAY, THAPAR, and MATHIS, Circuit Judges.

_________________

COUNSEL ARGUED: Dawn M. Frick, SURDYK, DOWD & TURNER, CO., L.P.A., Dayton, Ohio, for Appellants/Cross-Appellees. James F. Mathews, BAKER | DUBLIKAR, North Canton, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Dawn M. Frick, Jeffrey C. Turner, SURDYK, DOWD & TURNER, CO., L.P.A., Dayton, Ohio, for Appellants/Cross-Appellees. James F. Mathews, Tonya J. Rogers, BAKER | DUBLIKAR, North Canton, Ohio, for Appellee/Cross- Appellant. _________________

OPINION _________________

CLAY, Circuit Judge. Defendants Berlin Township Board of Trustees and Berlin Township, Ohio (collectively, the “Township”) appeal the district court’s order preliminarily Nos. 23-3768/3799 TowerCo 2013, LLC v. Berlin Twp. Bd. of Trs., et al. Page 2

enjoining the Township from preventing Plaintiff TowerCo 2013, LLC’s (“TowerCo”) completion and deployment of a Verizon cell tower. TowerCo cross-appeals the district court’s order, arguing that the district court erred in finding that the Township did not violate certain sections of the Telecommunications Act (“TCA”), including 47 U.S.C. § 332(c)(7)(B)(ii), (iii). The district court’s injunction has been stayed by this Court, pending the resolution of this appeal. For the reasons set forth below, we REVERSE the district court’s order granting a preliminary injunction, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual Background

In late 2019, Verizon Wireless identified a cell phone service coverage gap, or a “dead spot,” in Berlin Township, Ohio. TowerCo has an ongoing agreement with Verizon to provide services that would assist in remedying this gap, including the building of telecommunications towers. Accordingly, once Verizon had identified the dead spot and a suitable site for an additional tower, Verizon then retained TowerCo to finalize the lease agreement for the building of the tower and to construct the cell tower.

With the assistance of a site acquisition firm, Verizon determined that the coverage gap could be remedied by erecting a cell tower within a centrally located half-mile radius in Berlin Township. The identified area encompassed various residential developments and property owned by the Olentangy School District (the “School District”). The companies determined that the best option would be to utilize the property owned by the School District. After engaging in a thorough back-and-forth with the School District to determine whether it would be amenable to a lease