The Supreme Court sided with T-Mobile US on its challenge to the city of Roswell, Ga., denial of an application to build a cell tower – but Justice Sonia Sotomayor’s opinion raises more questions than it answers.
Section 332 of the Communications Act allows cellphone companies to bring federal court challenges to denials of requests to construct cell towers. In this case, the Roswell City Council denied T-Mobile US’ application even though the city’s planning and zoning division had recommended approval. The Supreme Court held that the city satisfied the statutory requirement that denials be “in writing and supported by substantial evidence contained in a written record” by sending T-Mobile US a one-paragraph letter saying the City Council had voted to deny T-Mobile US’ application and later providing the minutes of the City Council meeting. But the Supreme Court also held that the minutes should have been provided contemporaneously with the letter rather than 26 days later and, as a result of this delay, reversed the 11th Circuit’s decision upholding the denial.
Here are 10 things to know about the decision:
1. The city in question is Roswell, Ga. There has been no suggestion of alien sightings in this Roswell.
2. The federal statute restricts local zoning authority. Section 332(c)(7) is entitled “preservation of local zoning authority” – but the title of the statutory provision is misleading because its purpose is to restrict local zoning authority.
3. The statute prohibits municipalities from effectively suppressing wireless service and requires them to act promptly on requests to construct cell towers. Municipalities may not “unreasonably discriminate among providers,” adopt rules that effectively prohibit wireless service, or make health and safety rules that are more onerous than those of the Federal Communications Commission. Nor may they sit on applications to build cell towers – the statute requires them to act within a “reasonable period of time,” which the FCC has construed to mean 150 days.
4. The statute requires denials of construction applications to be “in writing and supported by substantial evidence contained in a written record.” The city argued that it would satisfy the “in writing” requirement to just stamp “denied” on an application. T-Mobile US claimed that Roswell had to explain its denial in a written document.
5. The Supreme Court agreed with T-Mobile US that Roswell had to provide reasons for the denial. Otherwise there would be no way to determine whether denial was “supported by substantial evidence” and not made for a reason the statute prohibits.
6. But the court rejected the argument that Roswell had to write an order explaining the denial. The Supreme Court held that it was sufficient for the City Council to provide the minutes of the meeting at which the denial was issued.
7. The Supreme Court ruled for T-Mobile US because the reasons for the denial had to be issued “essentially contemporaneously” with the denial. The court inferred this requirement to give wireless companies time to make a decision whether to appeal within the 30-day time limit.
8. It is not clear whether T-Mobile US will be able to build the tower at issue. The Supreme Court remanded for the 11th Circuit to address what remedy is warranted; Justice Samuel Alito concurred on the understanding that the opinion did not mean: “when a locality has erred, the inevitable remedy is that the tower must be built.”
9. The Supreme Court ducked the question whether the minutes actually explained why the City Council denied the application. T-Mobile US had argued that the minutes showed only that five members voted to deny the application without saying why. The members did raise a number of concerns – including many aesthetic concerns – but did not explain why they rejected the recommendation that the tower be approved. The Supreme Court side-stepped T-Mobile US’ argument.
10. Chief Justice John Roberts dissented, joined by justices Ruth Ginsburg and Clarence Thomas. This unlikely trio of dissenters argued that the requirement that the reasons for the denial be issued contemporaneously with the denial is “found nowhere in the text of the statute.” Justice Thomas accused the majority of treating municipalities “as less than conscripts in the ‘national bureaucracy.’”
The bottom line: If providing minutes from a city council meeting rather than a written explanation of a denial of an application to build a cell tower is permissible, how are reviewing courts to decide what really motivated a decision to deny an application? What if the city council members say nothing at all, but only listen to commenters and then vote? What if some council members express concerns about what the statute says they may not take into account? Even though the Supreme Court has held that the statute does not require municipalities to explain their decisions, it would be better for everyone if they did. If the reasons are sound, the decision is more likely to be upheld if it is explained. If the reasons are not sound, the public will benefit from the construction of the cell tower and the increased coverage it provides.
Christopher Wright is the head of the appellate practice at Harris, Wiltshire & Grannis LLP. He was general counsel of the Federal Communications Commission, served as a law clerk to Chief Justice Warren Burger, and has argued 28 cases in the Supreme Court and approximately 40 cases in the federal courts of appeals.
Editor’s Note: Welcome to our weekly Reality Check column where C-level executives and advisory firms from across the mobile industry share unique insights and experiences.
Photo copyright: / 123RF Stock Photo
