Chris Imlay is correct, Jim. The case had nothing to do with Amateur radio
antennas. In the final reduction, it was about whether Abrams could sue for
and obtain attorneys? fees and damages under Section 1983 instead of going
through the state appeals process. Attorney Seth Waxman?s oral arguments
before the Supreme Court (HYPERLINK
"http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1601.p
df"http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1601
.pdf) focused upon that but he also appeared to be taking the CTIA?s
position, arguing that entrenched zoning authorities were frustrating the
creation of a national wireless network.
The Supreme Court justices disagreed with Waxman in the end, ruling that
when Abrams went to court to reverse the Rancho Palos Verdes' decision, he
lost the right to also ask for legal fees and damages because Congress did
not allow for legal fees and damages in the Telecommunications Act of 1996.
The wireless industry contributed heavily to this case because they wanted
to send a message to zoning boards to be fair in their siting assessments,
with the tacit threat that their corporate strength could bankrupt a
community if they didn?t. Justice Scalia disagreed, setting the tone when he
said, "I cannot imagine Congress wanted to impose damages plus attorney's
fees upon municipalities without even giving the municipalities the chance
to correct their mistakes. You?re saying the municipalities? appeal system,
which is there for people to take advantage of, is just washed out. One
mistake at the lowest level and you get damages and you get attorney?s fees.
That is extraordinary.?
Let?s hope that zoning bodies do not construe this ruling as an opportunity
to be even more restrictive then they currently are in tower siting.
Craig
_____
From: Jim Lux [mailto:jimlux@earthlink.net]
Sent: Friday, April 01, 2005 3:00 PM
To: Craig Lekutis; towertalk@contesting.com
Subject: [Norton AntiSpam] Re: [TowerTalk] Ham operator racks up $15 million
in legal fees, damages
At 11:01 AM 4/1/2005, Craig Lekutis wrote:
I find the TowerTalk posts to be quite informative regarding HOAs and other
community bodies restricting your ability to construct a tower. The problems
are aligned to what site acquisition specialists in the wireless industry
face every day.
Last month the Supreme Court ruled 9-0 that ham operator Mark Abrams
(WA6DPB) was not entitled to attorneys? fees and damages that were listed at
$15 Million. In 1989 the Rancho Palos Verdes, CA homeowner received
permission to put up a 52.5-foot tower on his property for amateur radio
service and to relay signals from other operators. They later said he was
using it for a commercial enterprise. He applied again for a second tower on
his property high above the Pacific. They turned him down when neighbors
objected. He appealed and won, but the court wouldn?t allow him to be
awarded attorney?s fees. He appealed that decision and won again. Then the
city appealed and it went to the Supreme Court.
The March 22 decision will have ramifications not only in the commercial
sector, but for those enjoying amateur radio as zoning boards will
arbitrarily flex their muscles knowing that they can?t be sued for
attorneys? fees and damages. There?s an extensive article on
HYPERLINK "http://www.wirelessestimator.com
/"http://www.wirelessestimator.com detailing the multi-year costly battle as
well as the written opinion and consensus opinions. Abrams says he hasn?t
given up yet.
Craig
Based on some comments from the ARRL attorneys involved in this case posted
on the ham-law list, I don't think this is necessarily true.
I believe that it has more to do with "civil rights damages and costs"
(that's the stuff in 42 USC 1983), NOT the general case. (communications
stuff is in 47 USC). From my casual reading of the decision, it looks like
the court said that if one law provides specific remedies (i.e. the stuff in
the Telecom Act, title 47), then you can't try to use remedies in another
law (the title 42 stuff, which is the civil rights stuff)
In horrible legal speak:
"We decide in this case whether an individual may enforce the limitations on
local zoning authority set forth in ... Communications act of 1934, through
an action under Rev.Stat 1979, 42 USC 1983."
Here's a quote from Chris Imlay:
"This was my case. I argued it successfully in the 9th Circuit, and worked
with the Wilmer, Cutler, Pickering, Hale & Dorr attorneys, including Seth
Waxman, who argued it brilliantly, albeit unsuccessfully, for Mark Abrams in
the Supreme Court. I can assure you with a good deal of certainty that the
holding in this case has nothing to do with Amateur radio antenna cases
whatsoever. However, having the decision go against 1983 damages and 1988
attorneys fees under the Telecom Act, it makes it even more unlikely than it
was before that civil rights damages and attorney's fees will be awarded
under current law in an Amateur antenna case.
Chris Imlay, W3KD "
The actual decision is at:
HYPERLINK
"http://www.supremecourtus.gov/opinions/04pdf/03-1601.pdf"http://www.supreme
courtus.gov/opinions/04pdf/03-1601.pdf
--
No virus found in this incoming message.
Checked by AVG Anti-Virus.
Version: 7.0.308 / Virus Database: 266.9.1 - Release Date: 4/1/2005
--
No virus found in this outgoing message.
Checked by AVG Anti-Virus.
Version: 7.0.308 / Virus Database: 266.9.1 - Release Date: 4/1/2005
_______________________________________________
See: http://www.mscomputer.com for "Self Supporting Towers", "Wireless Weather
Stations", and lot's more. Call Toll Free, 1-800-333-9041 with any questions
and ask for Sherman, W2FLA.
_______________________________________________
TowerTalk mailing list
TowerTalk@contesting.com
http://lists.contesting.com/mailman/listinfo/towertalk
|