The 8th U.S. Circuit Court of Appeals affirmed...
The 8th U.S. Circuit Court of Appeals affirmed a U.S. District Court ruling that the city government in North Platte, Nebraska, had not violated the Telecommunications Act of 1996 when it voted to deny NE Colorado Cellular’s request to constrict…
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a 100-foot wireless tower and related support structures in city limits. NE Colorado Cellular, doing business as Viaero Wireless, had claimed North Platte violated the Telecom Act because its decision wasn’t “in writing” nor “supported by substantial evidence.” North Platte said its city planning commission had conducted a public hearing on Viaero’s request in 2012, including live testimony and letters from property owners on sites adjoining the proposed tower site, the 8th Circuit said in its ruling. The commission subsequently issued a summary report on that testimony and submitted it to the North Platte City Council. The council also conducted a public hearing on Viaero’s request and issued the hearing minutes before it denied the tower siting request because it “would not be in harmony with the character of the area,” the 8th Circuit said. The U.S. District Court in Lincoln, Nebraska, ruled in North Platte’s favor but said federal courts are split on what the Telecom Act’s “in writing” requirement means. The U.S. District Court said it agreed with the interpretation used by the 6th U.S. Circuit Court of Appeals, in which a decision and written record don’t need to be separate writings as long as the record allows the reviewing court to “focus with precision” on a governing body’s action and its reasons for that action. The district court also said North Platte had denied Viaero’s request based on “substantial evidence.” The 8th Circuit said it agreed with the rule used by the 4th and 11th U.S. Circuit Courts of Appeals, which had also said the Telecom Act doesn’t require that a governing body’s decision and the written record be separate documents. The 8th Circuit also said the testimony given at the North Platte City Council’s public hearing was sufficient evidence for the council to render a decision (http://1.usa.gov/VI8EFb).