After a few years (and no doubt millions of dollars in legal fees), TriStar and American Tower have agreed to an out of court settlement.
As you’ll recall from my original post on this lawsuit back on February 19, 2012 TriStar sued American Tower claiming
Count 1: Violation of the Lanham Act, 15 U.S.C. 1125(a)
Count 2: Unfair Competition
Count 3: Business Disparagement
Count 4: Tortious Interference with Existing Contract
Count 5: Tortious Interference with Prospective Business Relations
Count 6: Breach of Contract
Not surprisingly, the settlement stipulation does not disclose any of the material detailed of the agreement behind the agreement.
Here’s the stipulation resulting in the dismissal of the case: tristar.dismissal.17718294804.
Does a denial of a cell site permit need to be made in a writing that is separate from the rest of administrative record? That’s the more important question answered by the 8th Circuit Court of appeals in NE Colorado Cellular, Inc., v. City of North Platte, Nebraska. Case No. 13-3190 (Filed August 22, 2014).
The 8th Circuit has now adopted the minority view of the Circuits that a denial of a cell site permit does not need to be made in a writing that is separate from the rest of administrative record. In doing so, the 8th Circuit dives into the thinking of the various Circuits that have addressed this question.
The U.S. Supreme Court is set to resolve the Circuit split when it hears and decides T-Mobile S., LLC v. City of Roswell, Ga., 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S. Ct. 2136 (2014).
I have edited the 8th Circuit decision to focus on the in writing discussion.
SMITH, Circuit Judge.
NE Colorado Cellular, doing business as Viaero Wireless (“Viaero”), sought to construct a telecommunications tower in the City of North Platte, Nebraska (“the City”). The North Platte City Council (“City Council”) voted to deny Viaero’s application for a permit to build the tower, finding that the tower would be inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed suit against the City for violation of the Telecommunications Act of 1996 (TCA), alleging that the City Council decision was neither “in writing” nor “supported by substantial evidence.” The district court upheld the City’s decision. We affirm.
The district court noted that legal authorities are split on the meaning of “in writing” in the TCA and that the question remains open in this circuit. The majority rule—followed by the First, Seventh, and Ninth Circuits, and urged by Viaero—requires that a decision “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002) (citing Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59–60 (1st Cir. 2001)). The district court noted that this circuit has assumed without deciding that the majority rule is correct. See Sprint Spectrum, L.P. v. Platte Cnty, Mo., 578 F.3d 727, 731–32 (8th Cir. 2009).
The minority rule—articulated by the Sixth Circuit, urged by the City, and ultimately adopted by the district court—does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.” Omnipoint Holdings, Inc. v. City of Southfield, 355 F.3d 601, 606 (6th Cir. 2004). Here, the district court found that the City Council resolution satisfied the “in writing” requirement because the motion and meeting minutes reflect the action taken and “contained an explanation of the reasons sufficient to allow the Court to evaluate the evidence in the record that supports those reasons.”
A. “In writing”
Courts have adopted four different interpretations of the TCA’s “in writing” requirement. The first, adopted by a number of district 2 courts, requires that the denial itself and the “written record” be separate documents. Smart SMR of N.Y., Inc. v. Zoning Comm’n of Stratford, 995 F. Supp. 52, 57 (D. Conn. 1998). The Stratford court reasoned that because “the statute draws a distinction between the writtendecision and the written record, they can clearly not be the same document.” Id. (quoting AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 979 F. Supp. 416, 428 (E.D. Va. 1997), rev’d, 155 F.3d 423 (4th Cir. 1998)). “Additionally, the decision ‘must contain written findings of fact tied to the evidence of record.'” Id. at 56 (quoting AT&T Wireless Servs. of Fla., Inc. v. Orange Cnty, 982 F. Supp. 856, 859 (M.D. Fla. 1997). In a later case, the same court determined that “[a] local zoning authority must issue a decision in writing setting forth the reasons for the decision and linking its conclusions to evidence in the record.” Omnipoint Commc’ns., Inc. v. Planning & Zoning Comm’n of Wallingford, 83 F. Supp. 2d 306, 309 (D. Conn. 2000) (citation omitted). The Wallingford court reasoned that “[b]y failing to provide reasons for its decision, the Commission places the burden on this Court to wade through the record below in an attempt to discern the Commission’s rationale.” Id. (quoting Smart SMR, 995 F. Supp. at 57). The Stratford/Wallingford rule effectively requires formal findings of fact and conclusions of law, akin to the strictures of the Administrative Procedure Act (APA). See Todd, 244 F.3d at 59.
The second approach, considered the majority rule, was articulated by the First Circuit in Todd. The Todd court held that “the TCA requires local boards to issue a written denial separate from the written record. That written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” Id. at 60. The Seventh and Ninth Circuits subsequently adopted this interpretation. See Helcher v. Dearborn Cnty, 595 F.3d 710, 719 (7th Cir. 2010); MetroPCS, Inc. v. City & Cnty of S.F., 400 F.3d 715, 722 (9th Cir. 2005).
The First Circuit rejected the formal requirement of “findings of fact” in Wallingford as having “no basis in the language of the [TCA].” Todd, 244 F.3d at 59. The court held that because local boards “are primarily staffed by laypeople. . . . it is not realistic to expect highly detailed findings of fact and conclusions of law.” Id. at 59–60. The court nevertheless found that the approach adopted by the Fourth and Eleventh Circuits infra too light, holding that “permitting local boards to issue written denials that give no reasons for a decision would frustrate meaningful judicial review, even where the written record may offer some guidance as to the board’s rationale.” Id. at 60. The court noted that “[t]he TCA distinguishes between a written denial and a written record, thus indicating that the record cannot be a substitute for a separate denial.” Id. (citation omitted). As such, “[e]ven where the record reflects unmistakably the Board’s reason for denying a permit, allowing the written record to serve as the writing would contradict the language of the [TCA].” Id. (citation omitted). In short, the Todd rule requires that a denial “must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par, 301 F.3d at 395–96.
The Sixth Circuit developed a third approach to the TCA’s “in writing” requirement. In New Par, the court adopted the Todd rule, but the court took a different tack in Southfield. In Southfield, the city council denied a permit after a public hearing. Southfield, 355 F.3d at 603. In a formal resolution, the council voted to deny the application and listed eight reasons for the denial. Id. The minutes of the council meeting, which contained the resolution, constituted the only “writing” containing the denial. Id. at 606. The Southfield court noted that “there is no guidance in New Par as to what constitutes the written record.” Id. at 605. The court opined that “the TCA makes no mention of the writing being in a separate document.” Id. at 606. The court reasoned that because the city council speaks through its resolutions, the “formal resolution is a writing separate from the hearing record.” Id. “Although the minutes of a council meeting will encompass all the matters considered by the council at that meeting, each resolution deals with only one discrete subject.” Id. The court found that this was sufficient to meet the “separate writing” requirement of the TCA because “[t]he primary purpose of the separate writing requirement is to allow a reviewing court to focus with precision on the action that was taken and the reasons supporting such action.” Id. Thus the Southfield rule requires only that a local board’s action be sufficiently discrete to allow a reviewing court to identify the action taken and why it was taken.
The Fourth and Eleventh Circuits developed yet a fourth interpretation of “in writing,” on the opposite end of the spectrum from Wallingford. In Virginia Beach, the Fourth Circuit confronted the following facts:
The Council ultimately voted unanimously to deny the application, a decision recorded both in a two-page summary of the minutes—describing the application, listing the names and views of all who testified at the hearing, and recording the votes of each councilman—and in a letter from the Planning Commission to the City Council describing the application and stamped with the word “DENIED” and the date of the City Council’s vote. Consistent with its usual practice, the Council did not generate written findings of fact concerning its vote, nor did it produce a written explanation of the basis for its vote.
155 F.3d at 425. The court held that “the City Council’s decision clearly was ‘in writing.'” Id. at 429. The following year, the court held that “the secretary [of the city council] writing ‘Denied’ on the first page of AT&T’s application, in the stamped form for approval or denial of this and similar requests, fulfills the ‘in writing’ requirement of § 332(c)(7)(B)(iii).” AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 312 (4th Cir. 1999).
Like the Todd court, the Fourth Circuit rejected the Wallingford “findings of fact” rule, holding that while the APA requires “a statement of . . . findings and conclusions, and the reasons or basis therefor,” § 332 of the TCA contains no such requirement. Virginia Beach, 155 F.3d at 429–30. Noting that “Congress knows how to demand findings and explanations” and did not do so in § 332, the court reasoned that “the simple requirement of a ‘decision . . . in writing’ cannot reasonably be inflated into a requirement of a ‘statement of . . . findings and conclusions, and the reasons or basis therefor.'” Id. at 430. The court held that the “substantial evidence” requirement—not the “in writing” clause—ensured that the court received enough information to allow for effective judicial review. Id.
The Eleventh Circuit similarly held that the “in writing” requirement is a light burden. T-Mobile S., LLC v. City of Milton, Ga., 728 F.3d 1274 (11th Cir. 2013). Like North Platte, the City of Milton first addressed a permit for construction of a telecom tower through a planning commission (in Milton, the city considered three separate permits for three proposed tower locations). Id. at 1277. The commission then made a recommendation to the city council. Id. at 1278. After a public hearing, individual city council members moved to deny two of the applications and “stated on the record five ‘not exhaustive’ reasons for denial,” whereupon the city council voted to deny the applications. Id. The city council subsequently sent letters informing T-Mobile of the denials but did not state the reasons for them. Id. at 1279. The hearings were recorded, transcribed, and memorialized in the minutes, which “detail[ed] the reasons given in support of and in opposition to each application, and the motions and their grounds, and recite[d] the unanimous vote on them.” Id. at 1279–80.
The Milton court rejected both the Wallingford and Todd (and implicitly New Par and Southfield) rules as expansions of the statutory text. The court reasoned:
The words of the statute we are interpreting require that the decision on a cell tower construction permit application be “in writing,” not that the decision be “in a separate writing” or in a “writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held” or “in a single writing that itself contains all of the grounds and explanations for the decision.” See 47 U.S.C. § 332(c)(7)(B)(iii). So, to the extent that the decision must contain grounds or reasons or explanations, it is sufficient if those are contained in a different written document or documents that the applicant is given or has access to. All of the written documents should be considered collectively in deciding if the decision, whatever it must include, is in writing.
Id. at 1285.
We are persuaded that the Fourth and Eleventh Circuits have articulated the better rule. Nowhere does the statutory text require that the denial and the “written record” be separate writings. Section 332 requires only that the denial and the record both be written. Section 332 does not require that the written denial state the reasons for the denial. Congress may require an agency or board to state its findings. See, e.g., 5 U.S.C. § 557(c). Congress did not do so here.
Here, the parties agree that the City Council’s decision was written: the City Council passed and memorialized a formal resolution. The TCA requires no more than this. The City did not run afoul of the TCA by recording its decision in the “written record.”
The judgment of the district court is affirmed.
You can download the entire decision here.
The U.S. Court of Appeals for the Ninth Circuit has issued (and set for publication) what will inevitably become a heavily cited decision about wireless siting. This case is the logical next step in the line of MetroPCS v. San Francisco and T-Mobile v. Anacortes, albeit not as the wireless industry would have it.
From the Court’s summary (not a part of the case decision):
The panel affirmed in part and reversed in part the district court’s summary judgment on claims that the City of San Diego’s denial of continual use permit applications for telecommunications facilities violated the California Permit Streamlining Act, the federal Telecommunications Act, California Code of Civil Procedure § 1094.5, and the Equal Protection Clause.
Reversing the district court’s summary judgment in favor of the plaintiff on its claim that the City violated the time limits of the Permit Streamlining Act, the panel concluded that the permit applications were not deemed approved before the City denied them because “the public notice required by law” did not “occur.”
The panel affirmed the district court’s summary judgment in favor of the City on the other claims. The panel held that under the Telecommunications Act, the City’s decision to deny the permit applications was supported by substantial evidence, and the City did not misapply its Land Development Code. The permit denial did not constitute unreasonable discrimination among functionally equivalent service providers because the plaintiff and the City were not functionally equivalent providers. The permit denial did not constitute an effective prohibition of personal wireless services because the plaintiff did not demonstrate that its proposals were the least intrusive means of filling a significant gap in coverage.
The panel held that the plaintiff could not prevail under Cal. Civ. Proc. Code § 1094.5 because it did not have a fundamental vested right to the continued use of its facilities. The panel held that the permit denial did not violate equal protection because it was rationally related to the City’s legitimate interest in minimizing the aesthetic impact of wireless facilities and in providing public communications services.
Regarding the Telecommunications Act claims from the decision:
ATC advances three claims under the TCA. First, ATC claims that the City’s decision to deny the CUP applications was not supported by substantial evidence because the City misapplied its own Land Development Code. See 47 U.S.C. § 332(c)(7)(B)(iii). Second, ATC claims that the City’s denial of the CUP applications constituted unreasonable discrimination among providers of functionally equivalent services. See id. § 332(c)(7)(B)(i)(I). And third, ATC claims that the City’s denial of the CUP applications constituted an effective prohibition of personal wireless services. See id. § 332(c)(7)(B)(i)(II). We affirm the district court’s grant of summary judgment in favor of the City on all three claims. The City evaluated the CUP applications under the proper provision of the Land Development Code and supported its decision to deny the CUP applications with substantial evidence. In addition, the City did not unreasonably discriminate among providers of functionally equivalent services because ATC and the City are not functionally equivalent providers. Finally, ATC’s effective prohibition claim fails because ATC did not demonstrate that its proposals were the least intrusive means of filling a significant gap in coverage.
As to which side gets to decide “least intrusive means” the court said:
During the review process, ATC rejected relocation of the facilities or modifications that involved reduction in height or redesign of the towers. ATC essentially insisted that the City accept ATC’s conclusion that the existing facilities were the “least intrusive means,” without offering a feasibility analysis of alternative designs or sites for the City to reach its own conclusion. In effect, ATC would make the applicant—rather than the locality—the arbiter of feasibility and intrusiveness, gutting the “least intrusive means” standard with predictable, applicant-friendly results.
As we explained in MetroPCS, Inc., the “least intrusive means” standard “allows for a meaningful comparison of alternative sites . . . [and] gives providers an incentive to choose the least intrusive [means] in their first [ ] application.” 400 F.3d at 734–35. To achieve these objectives, the applicant must make a prima facie showing of effective prohibition, which the locality may then rebut by demonstrating the existence of a potentially available and technically feasible alternative. City of Anacortes, 572 F.3d at 996–99. ATC did not adduce evidence allowing for a meaningful comparison of alternative designs or sites, and the City was not required to take ATC’s word that these were the best options. Consequently, ATC failed to show that its facilities were the least intrusive means of filling a significant gap in service coverage, and the City is entitled to judgment as a matter of law on the effective prohibition claim. Cf. id. at 989, 996–99 (finding a violation of § 332(c)(7)(B)(i)(II) where the provider made a prima facie showing of effective prohibition, including an analysis of eighteen alternative sites, and the locality failed to rebut the prima facie showing with evidence of available alternative sites).
There is a lot more to read, but you can see why this decision will become immensely important in guiding future siting cases at the state and local government level.
I expect American Tower to seek an en banc review of the decision by a larger 9th Circuit panel. I also expect that the request will be denied.
I believe other circuit courts will cite to this reasoned decision when reviewing the same types of issues that arise elsewhere.
Having lost big-time in the 9th Circuit, I expect the wireless industry to seek state legislation to try to effectively overturn portions of the 9th Circuit ruling. What happens at the federal level is as yet a wildcard.
An interesting question implied from this decision and raised by a really, really smart attorney in Orange County: Will no-notice administrative permits go out the window? I suspect that might well be the outcome!
Here is a link to the decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/14/11-56766.pdf
Ken Schmidt (l) with Jonathan Kramer
I had the pleasure of having lunch today with Ken Schmidt, President of Steel in the Air. Although we have talked many times over the years, this is the first time we have met in the flesh.
Ken is exceptionally knowledgeable in the same areas where I and my associates practice, specifically in wireless leasing and telecom matters. We have been very friendly competitors over the years, and we enjoy talking shop about what’s happening in the leasing and regulatory worlds.
Like yours truly, Ken serves as an expert witness in wireless matters.
I always learn valuable things from Ken. Today, I also learned how much I enjoyed having lunch with him.
Poor T-Mobile. It’s the jilted bride, now twice over.
Sprint walked away from the altar conceding that U.S. regulators would not approve the marriage between the #3 and #4 wireless carriers that would leave the couple still #3.
What’s next for T-Mobile? I suspect the embittered bride will start looking for several smaller regional suitors to serially marry.
Will T-Mobile become a Bridezilla? Only time and the regulators will tell.
The Los Angeles Times (called the Los Angeles Dog Trainer by Harry Shearer) published an article today entitled, “Listen: Is this the all-time most horrible cable service call, ever?”
It recounts the audio-recorded efforts of one Ryan Block, former editor of Edgadget trying to get disconnected from Comcast. He almost got disconnected from reality.
First, . . . → Read More: Try to Cancel Your Comcast Service: I Dare You!
Candidate Kevin Moddus, without a tin foil hat.
UPDATE: Seems like the voters in the 33rd were not looking for rolls of tin foil. Mr. Mottus received just 2.4% of the votes cast. He came in 7th. The 6th place candidate had a hair shy of 3-times as many votes compared with Mr. Mottus.
. . . → Read More: A Tin Foil Hat with Every Vote
p5rn7vb “Telecommunications: The Governmental Role in Managing the Connected Community”
I’m very pleased to share with you that Christina Sansone, Esq. and I have been signed by Solano Press to update, revise, and substantially expand Paul Valle-Riestra’s book, “Telecommunications: The Governmental Role in Managing the Connected Community.”
First published in 2002, Paul’s book remains a . . . → Read More: “Telecommunications: The Governmental Role in Managing the Connected Community” to be Updated
The FCC’s State and Local Government webinar today touched on the pending Wireless NPRM. I recorded the audio of the lecture and have provided it via the live link below. The running time is about 19 minutes and 11 seconds.
If you’d like to download the MP3 audio (about 3 MB) you can right . . . → Read More: FCC State & Local Government Wireless NPRM Discussion Audio
I am very pleased to announce that I received word today that I have been officially accepted into the Northeastern University School of Professional Studies Doctor of Law and Policy program. I will commence my cohort studies in July, 2014. I’ll be traveling to Boston every month for two years to complete in-class coursework, which . . . → Read More: Jonathan Kramer Accepted Into Northeastern University Doctor of Law and Policy Program