Today the US Supreme Court issued its ruling concerning the “in writing” requirement of the Federal Telecommunications Act. My previous post explaining the case, and the disagreement among the federal circuit courts, is here.
by Gary Taylor
T-Mobile South, LLC v. City of Roswell, Georgia
United States Supreme Court, January 14, 2015
T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia. The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements of the relevant portions of the city code, and recommended approval of the application subject to several conditions. The city council then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.
T-Mobile filed suit, alleging that the council’s decision violated the “in writing” requirement of the Federal Telecommunications Act (FTA) that says that a denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” The District Court agreed with T-Mobile. On appeal the Eleventh Circuit reversed. Noting that T-Mobile had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded, the Eleventh Circuit found that this was sufficient to satisfy the “in writing” requirement.
The US Supreme Court first determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide reasons when they deny applications to build cell towers. It would be extremely difficult for a reviewing court to carry out its review of a local decision if localities were not obligated to state their reasons in writing. The Court went on to stress, however, “that these reasons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” In this regard, it is clear that Congress meant to use the phrase “substantial evidence” simply as an administrative “term of art” that describes how an administrative record is to be judged by a reviewing court.” It is not meant to create a substantive standard that must be proved before denying applications.
Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons with sufficient clarity in some other written record such as in detailed minutes. At the same time, the Court agreed with the Solicitor General’s brief that “the local government may be better served by including a separate statement containing its reasons….If the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”
The Court further determined, however, that because the FTA requires the recipient of a denial to seek judicial review within 30 days from the date of the denial, the denial and written reasons, if contained in separate documents, must be issued “essentially contemporaneously.”
Because an entity may not be able to make a considered decision whether to seek judicial review without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.
The Court observed that this rule ought not to unduly burden localities given the range of ways in which localities can provide their reasons. Noting that the FCC “shot clock” declaratory ruling [discussed in the blog here
] allows localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications, the Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.”
The Court concluded that it was acceptable for Roswell to provide its denial and written reasoning (in the form of detailed minutes) in separate documents, but did not issue these documents “essentially contemporaneously.” As such, the city did not comply with the statutory obligations of the FTA. The Court remanded the case to the Eleventh Circuit to address the question of the appropriate remedies.