[TowerTalk] Antenna Tower Legal Cases @ ctia.wow-com.com/lawpol/antenna/caselaw.cfm

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AT&T Wireless, Inc. v. Orange County, No. 96-1325-CIV-ORL-3ABF(18) (November 14, 1997)

The United States District Court, Middle District of Florida, Orlando Division ruled that the Orange County Board of County Commissioners violated the 1996 Telecommunications Act when it denied AT&T's application to erect a communications tower in a residential area. While the Board did provide AT&T with a denial in writing, the Court found that a mere statement upholding the underlying Board's denial, which was based on facts not incorporated into the decision, did not constitute "substantial evidence contained in a written record."  The Court also noted that "local governments may not mask hostility to wireless communications facilities with unreasoned denials that make only vague references to applicable legal standards."  The Court, however, did not find cause to issue an injunctive relief mandating issuance of the building permit.   Instead, the Court gave the Board 35 days to provide written findings of fact to support its decision.

OPM-USA-INC. v. Board of County Commissioners of Brevard County, No. 97-408-CIV-ORL-19 (August 26, 1997)

The United States District Court, Middle District of Florida, Orlando District ruled that the Board of County Commissioners of Brevard County ("Board") violated the Telecommunications Act of 1996 by failing to substantiate in the written record their denial of OPM's application to construct a communications tower.  Notably, the Court followed the standard set forth in Bell South Mobility, Inc. v. Gwinnett County, (see infra).  Among the facts that the Court found to be insufficient to deny the use permit, the Court dismissed the Board's conclusion that the proposed communications tower posed a potential for a decrease in property values to surrounding communities, and the Board's concerns about the 'cumulative effect' of a third tower so close to the adjoining residences.  Finally, the Court found that "OPM did everything possible to support its application," and that "there was nothing OPM could have done which would have met with the approval of the Board."  The Court ordere!
d the Board to issue OPM a conditional use permit within 20 days of it's ruling. 

Sprint Spectrum L.P., Dial Call, Inc. v. Jefferson County, No. CV-97-8-1424-8 (July 31, 1997)

The United States District Court, Northern District of Alabama, held that the Jefferson County Commission was in violation of the 1996 Telecommunications Act because it  unreasonably discriminated among providers of functionally equivalent services. Specifically, the Court held that "the series of moratoria issued by the Commission represent an anti-competitive impediment to expansion of communication service in Jefferson County." Notably, the Court distinguished Sprint Spectrum v. Medina, (see infra), noting that the moratorium in Medina suspended only the issuance of permits and not the processing of applications. Furthermore, the Court concluded that the third moratorium imposed by the Commission, which was void of supporting evidence, amounted to "unreasonable discrimination" since earlier, incumbent carriers were not subject to the same barriers. The Court found that the Commission had not offered a legitimate reason for imposing the moratorium and, therefore, its refusal!
 to act was unreasonable. Finally, the Court determined that by refusing to process Sprint's applications, the Commission had violated the Act's procedural provisions that require localities to act on a request to construct wireless facilities within a reasonable time. The Court ordered Jefferson County to process all of Sprint Spectrum's and Dial Call's pending applications under its existing zoning regulations.

Powertel/Memphis, Inc. v. Meridian City Council, No. 97-CV-013(R) (May 7, 1997)

The Circuit Court of Lauderdale County, Mississippi held that the Meridian City Council was in violation of the 1996 Telecommunications Act because it made no written findings in denying the application of Powertel/Memphis, Inc. ("Powertel")for a special use permit to construct a monopole.  The Court further found that the Meridian City Council denied the application without any basis for the denial other than that some residents and the Mayor objected to the placement of the monopole on that site. The residents with standing merely voiced concerns which have no basis in fact, nor are they supported by concrete evidence. Powertel provided (1) articles addressing telecommunication safety; (2) an impact study of the City of Memphis addressing property values in regard to PCS towers; (3) information concerning the structural safety of such towers; (4) a photograph of a similar tower. The Court found that Powertel presented substantial evidence to support a finding that the applic!
ation for the permit to construct the monopole should be approved. Consequently, the Court ordered the Meridian City Council to issue a Conditional Use Permit to Powertel, as originally applied for, at its next regularly scheduled meeting, but in no event later that thirty (30) days from receipt of it's opinion.

Illinois RSA No. 3, Inc. v. County of Peoria, No. 96-3248 (April 28, 1997).

The U.S. District Court for the Central District of Illinois held that the County of Peoria violated the 1996 Telecommunications Act because it made no written findings in denying Illinois RSA No. 3's application for a special use permit to construct a tower.  Although the County issued a written denial, it said nothing about the reasons why it denied the application and did not refer to any record evidence.  The Court also found that substantial evidence in a written record did not support the County's decision.  The Court concluded that none of the evidence opposing the permit application, which consisted of local property owners' objections based on health concerns, fears about diminished property values, and generalized concern that the carrier had not adequately investigated alternate sites, amounted "to more than a scintilla of support" for the County's final decision.  Furthermore, the Court pointed out that any regulation that totally forbid cellular facilities in cert!
ain areas, would violate the Telecom Act provision that prohibits local regulation from prohibiting the provision of personal wireless services. Thus, the Court issued an injunction directing the County to issue the requested special use permit and remove any further obstacles to construction of the proposed site.

Seattle SMSA Limited Partnership, et. al. v. San Juan County, No. C96-15212 (April 11, 1997).

The U.S. District Court for the Western District of Washington at Seattle ordered the San Juan County Board of Adjustment to reconsider its decision to deny two cellular carriers' applications for permits to place two cellular towers on Lopez Island.  The Court determined that the Board failed to provide adequate written findings to support its decision to deny the applications, in accordance with the 1996 Telecommunications Act.  Specifically, the Court held that the Board's opinion in the administrative record provided "nothing more than conclusory statements for which no explanations are provided."  Furthermore, the Court concluded that the Board improperly relied on evidence concerning residents' concerns about the health effects of radio frequency emissions from cellular frequencies.  The Court explicitly stated that any decision may not be based on concerns related to radio frequency emissions.

Western PCS II Corp. v. Extraterritorial Zoning Authority of the City and County of Santa Fe, No. CIV 96-1472 LH/DIS (Feb. 27, 1997).

The U.S. District Court for the District of New Mexico found that the Extraterritorial Zoning Authority of Sante Fe ("EZA") "failed to comply with even the most basic of the Telecommunications Act's requirements" when it denied Western PCS's application to mount an antenna array to a water tank and to place equipment cabinets beside that water tank on property owned by the County of Santa Fe.  The Court determined that the EZA not only failed to produce a written denial, as required by statute, but also that the record did not "provide any indicia of 'substantial evidence' which would support a denial of the . . . request on any legitimate ground."  Instead of remanding the matter back to the EZA for further proceedings, the Court granted Western PCS mandamus relief and ordered the EZA to approve Western PCS's application.  The Court chose this form of relief because the EZA was "willing to ignore the requirements of federal law and reach far beyond its authority to create a r!
eason to deny the Petitioner's request."  The Court also concluded that the denial amounted to an "unreasonable discrimination" prohibited by the 1996 Telecommunications Act because it impeded Western PCS's ability to provide uninterrupted service along a major corridor where two of its competitors currently provided such service.  The Court also determined that denial of the application violated the 1996 Act's requirement that local regulations not prohibit the provision of personal wireless services.

Sprint Spectrum v. Town of West Seneca, Index No. 1996/9106 (Feb. 25, 1997).

The State of New York Supreme Court held that the town of West Seneca did not comply with Section 704 of the 1996 Telecommunications Act when it failed to take action on any of Sprint's nine applications to construct towers pursuant to a moratorium on wireless telecommunications facilities.  The Court found that the city violated provisions of the 1996 Act that (1) requires the town to act on Sprint's request to place its facilities within a reasonable time; (2) requires the town to deny such permission only in writing and supported by substantial evidence; and (3) prohibits the town from enacting regulations which have the effect of prohibiting personal wireless services.  Thus, the Court ordered the town to allow Sprint's application to proceed, concluding that the town's actions were tantamount to denial.

Pennsylvania Cellular Telephone Corp. v. Blairstown Township Zoning Board of Adjustment and Scenic Hill Estates, No. MRS-L-2514-95 PW (February 2, 1997)</b>

The Superior Court of New Jersey, Law Division: Morris County found the decision of the Blairstown Township Zoning Board of Adjustment to deny Pennsylvania Cellular's application for a use variance was arbitrary, capricious and unreasonable. The Court ordered the Board to hold further proceedings required for Pennsylvania Cellular to secure minor site plan approval.

Paging, Inc. v. Board of Zoning Appeal for the County of Montgomery and Montgomery County, No. 96-0317-R (January 15, 1997)

The United States District Court denied the motion of the Board of Zoning Appeal ("BZA") for abstention regarding the application of Paging Inc. ("Paging") to construct a 140-foot communications relay tower. Paging maintains that it is in fact a "public utility." BZA has thus characterized this case as essentially a local matter concerning the definition of "public utility" under the zoning ordinance. The Court found significant federal issues concerning the interplay of he Telecommunication Act of 1996 and the local zoning ordinance. Accordingly, the Court found, "in passing the Act, Congress has explicitly held that under limited circumstances the federal interest in wireless communications takes priority over state zoning authority. Specifically, when a state or local government treats 'functionally equivalent' providers differently, and does so 'unreasonably,' the Act steps in to preempt the state or local actions." The Court also found that discrimination among providers !
is arguably prohibited by section 704 of the Act, and, as such, implicates and important federal interest. Specifically, "Abstaining here would be to ignore the local government's potential violation of the Act in setting up a distinction between public utilities and other providers, both of which may provide functionally equivalent services."

United States Cellular Corp. v. Board of Adjustment of the City of Des Moines, Iowa, LACL No. CL 000 70195 (December 13, 1996).

The Iowa District Court for Polk County ordered the Board of Adjustment for the City of Des Moines ("Board") to issue a special use permit to construct a cellular tower to United States Cellular.  Originally, the Board denied US Cellular's application for a special permit because the carrier's proposal did not meet the standards of a proposed ordinance.  The Court determined that the 1996 Telecommunications Act precluded the Board's action.  The Court held that the Board failed to produce substantial evidence supporting its denial of the application, as required by Section 704 of the Act.  The Court also determined that the proposed ordinance was facially invalid under the Act because it unreasonably discriminated among providers of mobile services and gave the Board open-ended discretion to prohibit towers.  The Court also held the Board's action illegal under state law.  The Board was ordered to issue a special use permit and pay US Cellular for the costs of litigation.

Westel-Milwaukee Co., d/b/a Cellular One v. Walworth County, 1996 Wisc. App. LEXIS 1097 (Wis. Ct. App. 1996).

The Court of Appeals of Wisconsin directed the County to reconsider Cellular One's application for a construction permit in light of the 1996 Telecommunications Act.  Given that the County denied Cellular One's application in August of 1994, prior to the passage of the 1996 Telecommunications Act, the Court determined that "the company has data which may be material to the open competition issues that are emphasized in the new federal law."  Namely, Cellular One had previously requested that the County's approval of similarly situated towers be considered as evidence that the County had acted in a discriminatory manner.  The Court held that "such concerns about nondiscriminatory placement of these transmission towers might balance against the County's stated concerns about declining property values."

BellSouth Mobility Inc. v. Gwinnett County, Georgia, 1996 U.S. Dist. LEXIS 14175 (N.D. Ga. 1996).

The U.S. District Court for the Northern District of Georgia held that the Gwinnett County Board of Commissioner's decision to deny BellSouth's application for a Tall Structure Permit was not supported by substantial evidence contained in a written record.  On the contrary, the Court found that the following evidence supported BellSouth's application:  a report of the Airspace Safety Analysis Corp. showing that the monopole posed no hazard to the county's navigable air space; memoranda from the county's departments of transportation and public safety stating no objection to the application; recommendation by the county's planning and development departments that the application be approved; an expert appraiser's reports indicating that the placement of monopoles has not adversely affected residential property; and evidence that the monopole's radio frequency emissions would be well below the federally imposed limits.  Additionally, the Court determined that the 1996 Telecommun!
ications Act's mandate that courts here cases brought under Section 704 "on an expedited basis" vested the Court with sufficient authority to grant BellSouth's request for mandamus relief.

Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996).

The U.S. District Court for the Western District of Washington held that the City of Medina's six-month moratorium on issuing new permits for wireless communications facilities did not violate the 1996 Telecommunications Act.  The Court found that the moratorium, which suspended only the issuance of permits and not the processing of applications, was not a prohibition on wireless facilities and did not have a prohibitory effect in violation of Section 704.  Rather, the moratorium was a short-term suspension of permit-issuing while the City gathered information and processed applications.  The Court also found that the Act's mandate for localities to act on applications within a reasonable period of time after such a request allows reasonable moratoria adopted in compliance with state law.  Furthermore, the Court held that the City did not discriminate against Sprint Spectrum since Sprint was not in the same position as that of earlier entrants which had entered the market more!
 than ten years prior.  Finally, the Court determined that the moratorium did not constitute an entry regulation in violation of Section 332(c)(3)(A) of the Act.

Ohio Cellular v. Board of Public Works of West Virginia, Civil Action No. 93-C-1047-P (Nov. 18, 1996).

The Supreme Court of Appeals of West Virginia held that the taxation of intangible property, as permitted by the West Virginia Tax Code, does not include taxing an FCC cellular license.  The court concluded that the West Virginia legislature, in providing for the taxation of "notes, bonds, and accounts receivable, stocks and other intangible property," meant only to tax similar intangible properties.  Thus, "intangible property" was meant to be related to items of indebtedness or value.  The court did not address whether the FCC license was intangible property generally, but simply noted that, in this particular statute, it was not the type of intangible property the legislature intended to tax.


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