Under the Telecom Act, It's Not Only How You Say It, But When You Say It

Under the Telecom Act, It's Not Only How You Say It, But When You Say It

  Friday, January 16, 2015    Julie Tappendorf

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The U. S. Supreme Court issued its opinion in T-Mobile South, LLC v. City of Roswell (USSCT, Jan. 14, 2015) finding the City in violation of the federal statutory requirement that the siting authority issue its decision "in writing."  

The 1996 Telecommunications Act controls how States and Local Government may regulate cell towers.  Under the Act a decision to grant or deny a siting location for a cell tower must be in writing and supported by substantial evidence contained in a written record.  110 Stat. 151, 47 U.S.C. 332(c)(7)(B)(iii).

The city council for Roswell Georgia, held a public hearing to consider an application by petitioner T-Mobile South, LLC, to build a cell phone tower on residential property. During the hearing, several Council members expressed concerns about the tower’s impact on the area. The hearing ended with the Council unanimously passing a motion to deny the application. Two days later, the City’s Planning and Zoning Division informed petitioner by letter that the application had been denied and that minutes from the hearing would be made available. The detailed minutes were published 26 days later.

T-Mobile sued alleging that the action of the City violated the 1996 Telecommunications Act.  T-Mobile asserted that the notice of denial must contain the substantial evidence in support of the decision. 

In a decision just issued this week, the U.S. Supreme Court disagreed finding that separate written records could be used to provide notice of the decision and the substantial evidence needed to support the decision.  Here the written minutes of the hearing supplied the substantial evidence.  

"We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality.   Instead,  the locality's reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.

The Court nevertheless held that the City violated the Act by waiting 26 days to provide minutes of the hearing.  The minutes should have been supplied with the letter of denial.

As in comedy, timing is everything.  Take time to contact your attorney for assistance concerning issues under the Telecommunications Act.

Post Authored by Steve Mahrt, Ancel Glink