Communications law: annual review: the judicial practice committee of the FCBA.



No. 13-975 (U.S. Jan. 14, 2015)

In T-Mobile South, LLC v. City of Roswell, (1) the Supreme Court held that the Telecommunications Act of 1996 requires localities denying a cell-phone tower construction permit to provide or make available their reasons for doing so. The needn't, however, include those reasons in the formal denial letter; rather, "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." Under the Telecommunications Act of 1996, "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." (2) In T-Mobile, the Court addressed "whether, and in what form, localities must provide reasons when they deny" such a request. (3)

This case arose from T-Mobile's application to build a new cell-phone tower in a residential area of Roswell, Georgia. (4) To build a cell-phone tower in a residential area, Roswell requires companies to use an "alternative tower structure," meaning "an artificial tree, clock tower, steeple, or light pole," which is "compatible with the natural setting and surrounding structures" and effectively camouflages the tower, as judged by the City Council. (5) In accord with this requirement, T-Mobile proposed to build a 108-foot-tall tower in the form of an artificial tree, termed a "monopine." (6)

Roswell's Planning and Zoning Division considered the application first and, finding it complied with the city's ordinances, recommended its approval. (7) The City Council, the ultimate arbiters of the issue, then scheduled a 2-hour public hearing during which it heard from the Planning and Zoning Division, T-Mobile, and local residents. (8) After each council member shared his thoughts on the tower issue, the Council unanimously rejected the application. (9)

Two days after the hearing, the Planning and Zoning Division issued a brief rejection letter, which provided no explanation of the decision but referred T-Mobile to the formal meeting minutes. (10) The meeting minutes, which contained the Councilmembers' remarks, were not available for another twenty-six days. Three days later, T-Mobile filed suit in federal court, alleging that the city violated the Telecommunications Act of 1996 when denying its application without the support of substantial evidence in the record. (11)

On cross-motions for summary judgment, the District Court held that Roswell, when denying T-Mobile's application, violated the Telecommunications Act, which the court interpreted to require a written notice explaining the reasons for denial in a manner sufficient to evaluate them against the written record. (12) The Eleventh Circuit reversed, holding that ""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." (13)

With the circuits split on whether and in what form a localities must provide its reasons for denial, the Supreme Court granted cert. In an opinion written by Justice Sotomayor, the Court answered the former in the affirmative and crafted a permissive standard for the latter.

First, the Court held that the Telecommunications Act "requires localities to provide reasons when they deny applications to build cell phone towers." (14) The Court explained that the Act "preserves 'the traditional authority of state and local governments to regulate the location, construction, and modification" of ... cell phone towers, but imposes 'specific limitations' on that authority." (15) Among these limits is the requirement that denials must be in writing and supported by substantial evidence in the written record and that a denied applicant may seek judicial review. To give effect to these limits and others, "courts must be able to identify the reason or reasons why the locality denied the application." (16) This conclusion is buttressed by Congress's use of "substantial evidence," a term of art that incorporates an existing body of administrative law requiring "that the grounds upon which the administrative agency acted to be clearly disclosed." (17) From this, the Court concludes that "localities must provide reasons when they deny cell phone tower siting applications ... these reasons need not be elaborate or even sophisticated, but rather ... simply clear enough to enable judicial review." (18)

Next, the Court held that these reasons need not "appear in the same writing that conveys the locality's denial of an application." (19) The text of the Act imposes several limitations on localities' power to turn down cell phone tower applications and its savings clause reserves the balance of power to state and local governments. (20) These factors suggest that the Act's enumerated limitations should be read as an exhaustive list. (21) Because the text of the Act does not proscribe a particular form in which the reasons must appear, it should not be read to impose one. Thus, "Congress imposed no specific requirement ... but instead permitted localities to comply with their obligation to give written reasons so long as the locality's reasons are stated clearly enough to enable judicial review." (22) The Court did advise localities that, although detailed minutes are sufficient under the Act, providing a separate statement of reasons for the denial can help avoid prolonged litigation over the permissibility of its reasons.

Finally, the Court noted that "a locality cannot stymie or burden the judicial review contemplated by the statute by delaying the release of its reasons for a substantial time after it conveys its written denial." (23) Because aggrieved parties have only 30 days from the denial to seek judicial review and need time to make a reasoned decision, which they cannot do without knowing the reasons, the locality "must provide ... its written reasons at essentially the same time as it communicates its denial." (24) "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." (25)

Thus, the Court held that "localities [must] provide reasons when they deny cell phone tower siting applications, but that the Act does not require localities to provide those reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial." (26) Here, Roswell provided its reasons to T-Mobile for denying its application, and it did so in a permissible form--detailed minutes of the City Council meeting. (27) It did not, however, provide its reasons "essentially contemporaneously" with the written denial because the minutes were not available until 26 days after its issuance. (28) Because the 26-day delay rendered Roswell non-compliant with its statutory obligations, the Court reversed the judgment of the Eleventh Circuit and remanded the case for consideration of questions of harmless error or remedy. (29)

(1.) T-Mobile South, LLC v. City of Roswell, No. 13-975 (U.S. Jan. 14, 2015).

(2.) Telecommunications Act of 1996,110 Stat. 151, 47 U. S. C. [section]332(c)(7)(B)(iii).

(3.) T-Mobile, slip op. at 1.

(4.) See id. at 1-2.

(5.) See id.

(6.) See id.

(7.) See id.

(8.) See id. at 2-3.

(9.) See id. at 13.

(10.) See id. at 4.

(11.) See id. at 4.

(12.) See id. at 5.

(13.) See id.

(14.) See id. at 6.

(15.) Id. (quoting Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005)).

(16.) Id.

(17.) Id. at 7-8.

(18.) Id. at 8.

(19.) Id. at 8-9.

(20.) See id. at 9.

(21.) See id.

(22.) See id.

(23.) See id. at 10

(24.) See id.

(25.) See id. at 11.

(26.) See id. at 14.

(27.) See id.

(28.) See id.

(29.) See id.

CBS Corporation v. FCC

785 F.3d 699 (D.C. Cir. 2015)

In CBS Corporation v. FCC, (1) the District of Columbia Circuit vacated an FCC order expediting disclosure of commercially-sensitive program-pricing information and documents to third parties in the course of a pre-merger review. (2) The Court held that the FCC failed to make the showing required by its own regulations to justify disclosure and failed to provide a reasoned explanation for changing its policy governing pre-disclosure judicial review. (3)


    The Communications Act of 1934, requires the FCC to review cable company mergers and determine whether they serve "the public interest, convenience, and necessity." (4) This pre-merger review requires parties to submit information to the FCC, some of which is of a sensitive and proprietary nature. (5) To enhance its understanding of these materials, the FCC sometimes shares them with knowledgeable third parties. (6) When doing so, the FCC's Media Bureau ordinarily issues a protective order limiting, inter alia, access by merger-applicants' competitors and allowing merger applicants to challenge its disclosure decisions. (7)

    The instant dispute arose during FCC review of the proposed AT&T/DirecTV and Comcast/Time Warner mergers, the latter of which has since been abandoned. (8) Because it was simultaneously reviewing merger proposals involving five (9) out of the world's seven...

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