Both Sides Face Tough Questions as Supreme Court Takes Up Cell Tower Case

The act requires a local government to issue its denial “in writing.” In the case before the court, in 2010 the Roswell City Council held a public hearing in which experts and members of the public were allowed to speak on the merits of a tower proposal. The city voted to reject T-Mobile’s application, providing as evidence the minutes and transcript of the hearing. T-Mobile sought legal review, saying that didn't satisfy the decision “in writing” requirements of the law.

All of the pleadings in the case are online, including those offered by industry groups in support of T-Mobile. In a decision last year, the court upheld FCC authority to impose in 2009 a shot clock on cell tower zoning decisions, rejecting the arguments of cities, led by Arlington, Texas (see 1305210024).

Jeffrey Fisher, a Stanford University law professor, argued the case on behalf of T-Mobile, telling justices the law is clear. Local governments violate the “in ­writing requirement” of Section 332 of the Telecom Act when they fail to issue a document separate from the administrative record that specifies the reasons for denying an application to construct a wireless facility, he said.

How far does the argument go? Justice Samuel Alito asked Fisher. “Suppose the instrument of denial, the letter, does not list any reasons, but it incorporates by reference or makes reference to some other document that sets out the reasons? Is that sufficient?” The question is, “What does the decision say?” Fisher responded. “That's the statutory term. And so the decision needs to provide the reasons.”

Chief Justice John Roberts asked what would be enough. He offered a hypothetical. On Monday, a company gets a letter saying an application was denied. “On Friday, the city council says the reasons we denied the application were because of this, this and this. Is that enough for you?” he said. Fisher said the letter itself has to give the reason for the denial.

Justice Ruth Bader Ginsburg expressed skepticism with Fisher’s arguments. The “thrust of this arrangement” in the Telecom Act is that decisions should be in the hands of the local authorities, she said. T-Mobile argues that “because of the procedural lapse, then you emerge the winner and it doesn't matter what good reasons the town might have had,” Ginsburg said. Fisher countered the act seeks to overcome “local intransigents” opposing the buildout of critical wireless infrastructure: “Process is the problem, not the solution.”

Justice Anthony Kennedy, often a swing vote at the court, said that under the theory advanced by Fisher, a local zoning authority would have to act “like an administrative agency” rather than a local government body. “That raises very serious concern under federalism,” Kennedy said.

Justice Antonin Scalia asked whether it's sufficient under the Telecom Act simply to say no. “One can interpret the statute as demanding that they have a reason,” he said. Fisher replied that the court can rule on the question before it in the T-Mobile case without deciding that question. But Fisher also said he would not argue with Scalia’s interpretation of the Telecom Act. "What's the big deal of having the city council say, 'We deny the request for the following reasons: one, two, three?’” Scalia asked.

“You want to say the record here isn't good enough,” Justice Stephen Breyer said, jumping into the discussion. “But it seems to me that the one thing we're not deciding is whether the record here is good enough.” The question presented is very general, he said. “We probably even might be able to write an opinion in three paragraphs.”

Justice Elena Kagan asked why the opinions offered by three of the commission's five members, part of the transcript the city relies on, aren’t enough to form a basis for denial. “As long as you have something that three people think, why isn't that sufficient?” she asked.

Fisher replied it’s not enough because the decision itself must provide the rationale for denial. It's not “necessarily the case” that something a council member “says for a round of applause in the room is exactly why they're going to vote 10 minutes later on the application,” he said.

The U.S. Solicitor General filed an amicus brief on the city’s behalf. It’s the office’s opinion that a local government must provide reasons when it denies permission to construct a cell tower so a court can conduct a “substantial evidence review,” but those reasons don’t necessarily have to be offered in the same document as the denial, said Ann O’Connell, on behalf of the government. Ginsburg questioned that: “There's nothing in the statute that says that the decision doesn't have to have the reasons.”

Richard Carothers, who argued on behalf of the city, said Roswell, the Solicitor General and the Fourth Eighth and Eleventh circuit courts of appeal agree that Section 332 “neither explicitly nor implicitly requires that reasons be provided in the written denial itself as long as there are reasons provided elsewhere in the written minutes or transcript.”

Roberts asked Carothers whether the letter of denial was just a “notification” while the actual denial was in the minutes included with the letter. Carothers conceded it was. "This whole telecommunications jurisprudence across the country is a patchwork,” Roberts said, with local governments having in place many different procedures for addressing facility siting applications.

“Everyone loves cellphones,” Breyer said. “Nobody likes towers, apparently.” Cities are essentially treated like administrative agencies under the law, he said. The implication for local governments is obvious, he said: “Write the decision and give your reasons, because otherwise there is no way to know whether there's substantial evidence or not” for denial.

Justice Sonia Sotomayer asked why the city couldn’t have waited for the official minutes to be written and sent them contemporaneous with the letter of denial. The city could have and that seems to be what the Solicitor General is recommending, Carothers replied. “That was certainly not the law at the time.”