Wireless Industry Loses On Civil Rights Issue In Supreme Court

“The wireless industry lost big time on the civil rights issue,” said Joe Van Eaton, an attorney representing local govts. Attorney Gerry Lederer who also represents local govts. said the ruling meant “wireless companies will have fewer incentives to challenge local tower citing decisions, and more incentive to work with communities to develop siting solutions that protect legitimate local interests… This could bode well for local governments who are now facing challenges to local telecommunications franchising ordinances.”

CTIA Gen. Counsel Michael Altschul said while the decision held that attorney fees aren’t available under Sec. 332 or under the civil rights laws, “the opinion leaves open the question of whether damages are available under Section 332 of the Communications Act.” He said the Supreme Court didn’t decide local govts. can’t be sued for violation of the Communications Act. But Van Eaton said: “The court wasn’t asked to decide whether damages are available under section 332… One of the significant points is that remedies available under civil rights laws are not the type of remedies that are available in challenges of zoning.”

The court said remedies available under Sec. 332 “perhaps do not include compensatory damages (the lower courts are seemingly in disagreement on this point), and certainly do not include attorney’s fees and costs.” But it said “the successful plaintiff may recover not only damages but reasonable attorney’s fees and costs” under the civil rights laws. “What they [the court] are saying is the civil rights damages and attorney fees are not remedies consistent with the type of damages typically available in zoning cases,” Van Eaton said.

“We certainly wanted the court to rule that these damages were valid because it would provide incentive for local government to follow the law,” Altschul said: “But because the court leaves open the question of damages and reaffirms the balance that Congress struck in drafting section 332, it really doesn’t change the obligation of local zoning officials to follow Section 332(c)(7).” He said the order wasn’t a “big negative” to the wireless industry, because “the Supreme Court reaffirmed that Section 332 strikes a balance between federal and state interests.”

The case dates to Aug. 2000, when a Rancho Palos Verdes, Cal., resident sued that city in U.S. Dist. Court, L.A., alleging that denial of his permit application to build an antenna tower violated limitations put on the city’s zoning authorities by Sec. 332(c)(7) of the Telecom Act. He sought money damages and attorney’s fees. Sec. 332(c)(7), among other things, provides that local govts. may not “unreasonably discriminate among providers of functionally equivalent services” or take actions that “prohibit or have the effect of prohibiting the provision of personal wireless services.” Each decision denying an application for an antenna must be “in writing and supported by substantial evidence contained in a written record.” The Dist. Court ruled 16 months later that the city’s permit denial wasn’t supported by substantial evidence and that Sec. 332(c)(7)(B)(v) provided the exclusive remedy for the city’s actions. But the district court refused the request for damages. That decision was appealed, but the U.S. Appeals Court, San Francisco, reversed on the latter point, and remanded for determination of money damages and attorney’s fees.

“Had the Supreme Court agreed with the 9th Circuit, communities that made good faith zoning decisions would have faced enormous potential liability if a court later decided that the decision violated Section 332,” Lederer said. At least 6 cases have raised similar issues but they never reach the Supreme Court, since appellate courts hearing them split on interpreting the rules, one attorney said. “The Supreme Court picked this case to clarify the law,” he said.