Does a letter from a local government denying an application to construct a cell tower without providing reasons for the denial, but offering the minutes of the meeting denying the application, satisfy the “in writing” requirement of the Telecommunications Act of 1996?
In this case, the Supreme Court will address whether the Telecommunications Act of 1996 (“1996 Act”) requires State or local governments that deny an application to construct a new cell tower to provide clear reasons for the decision in the same written document as the denial. Citing the statute’s text, purpose, and legislative history, T-Mobile argues that the City of Roswell violated the 1996 Act when it denied T-Mobile’s permit application but did not provide a clear statement of reasons for the denial. The City of Roswell argues that the 1996 Act merely requires that a state or local government provide the denial “in writing,” regardless of whether the reasons for the denial appear in a separate written record. The Supreme Court’s decision will likely have significant implications for the future of wireless deployment and judicial review of state and local resistance to wireless telecommunications services. The Court’s decision may also impact economic growth and public safety.
Questions as Framed for the Court by the Parties
In order to promote the prompt deployment of telecommunications facilities and to enable expedited judicial review, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless service facility “shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332 (c)(7)(B)(iii).
The question presented is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory “in writing” requirement.
In 2003, the Respondent City of Roswell, Georgia (“City”) enacted an ordinance (Roswell City Ordinance 21.2) governing the standards for wireless communication towers. Pursuant to the ordinance, the City considers a number of factors before approving or denying a telecommunications company’s application for the construction of a new wireless communication tower in the City. These factors include, among others, the proposed tower’s “[p]roximity to residential structures,” the topography surrounding the proposed location, and the “[d]emonstrated need” for the proposed tower. Additionally, the ordinance requires, with a few exceptions, that the City hold a public hearing before making a decision on a construction application.
In February 2010, Petitioner T-Mobile South LLC (“T-Mobile”), a subsidiary of telecommunications company T-Mobile USA, Inc., submitted an application to build a new wireless communications tower in a “well-established residential neighborhood” in Roswell, Georgia. In the application, T-Mobile detailed the specifics of the tower, including a “man-made tree” shape and a height that would be approximately twenty to twenty-five feet taller than the surrounding foliage. T-Mobile claimed that Roswell needed the new tower in order to respond to customer demand for T-Mobile’s services. The City held a public hearing on April 12, 2010 regarding T-Mobile’s permit application and voted unanimously to deny T-Mobile’s application.
On April 14, 2010, the City’s Planning and Zoning Division sent a letter to T-Mobile. The letter advised T-Mobile that the City denied T-Mobile’s application and that the public hearing minutes were available upon request.
After receiving the City’s letter, T-Mobile initiated suit on May 13, 2010 against the City in the District Court for the Northern District of Georgia, alleging that the City violated the Telecommunications Act of 1996 (“1996 Act”) by denying T-Mobile’s application without substantial evidence in the record to support the denial and thus “effectively prohibit[ed] the provision of wireless service.” The district court ruled in favor of T-Mobile, holding that the City’s denial letter did not fulfill the 1996 Act’s “in writing” requirement. The district court interpreted the 1996 Act’s “in writing” requirement as a mandate that the local government provide the applicant with a separate written document detailing why an application was denied. The district court concluded that the public hearing minutes and transcript did not reflect with sufficient particularity the reasons that motivated the City to deny T-Mobile’s application.
The City appealed to the United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”). The Eleventh Circuit held that the City’s denial letter, public hearing minutes, and transcript collectively satisfied the 1996 Act’s “in writing” requirement. In particular, the Eleventh Circuit reasoned that the minutes summarized expert testimony and citizen concerns, and clearly provided the reasons given by councilmembers for denying T-Mobile’s application. The court also emphasized T-Mobile’s ability to obtain the hearing transcript, an “even more detailed written account of the [City’s] decision.”
On May 7, 2014, the Supreme Court of the United States granted certiorari to consider whether a state or local government’s document denying an application for the construction of a new cell tower, without providing reasons for the denial, satisfies the 1996 Act’s “in writing” requirement.
Section 332 (c)(7)(B)(iii), also known as the “in writing” requirement of the 1996 Act, requires that “any decision by a State or local government . . . 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.” In this case, the Supreme Court will decide whether a government-issued document denying an application for a permit to build a cell tower, without providing reasoning for the application’s denial, satisfies the “in writing” requirement. T-Mobile argues that § 332(c)(7)(B)(iii) requires the City to provide separate reasoning supporting its denial in the denial document. The City argues that its letter denying the zoning permit application, without providing separate reasons for the denial, does satisfy the “in writing” requirement. Additionally, the United States, an amicus supporting neither party, raises an alternate ground for reversal—one rejected by the City—arguing that the City did not provide a timely and “contemporaneously available” statement, in writing, of the reasons for the denial.
TEXT AND STRUCTURE
T-Mobile alleges an analysis of § 332(c)(7)(B)(iii)’s text and structure demonstrate that application denials must specify reasons for the denial, and that administrative records that merely detail the denial are insufficient. First, T-Mobile argues that the phrase “supported by substantial evidence” in § 332(c)(7)(B)(iii) is a term of art borrowed from administrative law which requires that the agency identify reasons for its decision. Second, T-Mobile argues that the Eleventh Circuit improperly hones in on the statute’s “plain meaning” text and evaluates the phrase “in writing” in isolation as opposed to more broadly assessing the statutory language. Third, T-Mobile asserts that because the term “decision” is modified by the phrase “in writing,” Congress’ intention was to mandate a rationale for permit denials and that in 1996 legal parlance, “decisions” was commonly understood as “‘opinion’ – namely, a written document providing the reasons given for a judgment.” Finally, T-Mobile contends that because § 332(c)(7)(B) requires wireless communication facilities to take legal action within thirty days of an application denial, local governments must detail the reasons for denial in a written document separate from the administrative record. T-Mobile stresses that, because written administrative records have no deadlines, providing an explanation for the denial is especially necessary for T-Mobile and other wireless carriers to assess in a timely manner whether they amend their application, partake in negotiation, or take legal action.
The City counters that an analysis of § 332(c)(7)(B)(iii)’s text and structure suggests that the government’s denial of a permit application merely requires that the decision be in writing. In its assessment of the statutory language, the City counters T-Mobile’s textual argument that the term “decision” requires additional explanation beyond the result of the application, and that if “Congress intended ‘decision’ to mean anything more . . . it would have so specified or it would have used a term such as ‘opinion.’” The City also argues that applying a “rational reading” of both the statute’s grammar and the use of the conjunction “and,” which links the reasons for denial with the written record, clearly suggests that the City’s denial letter alone fulfills the “in writing” requirement. The City further contends that by looking at the broad statutory language, one can infer that Congress did not mean for § 332(c)(7)(B)(iii) to require local governments to explain application denials.
CONGRESSIONAL PURPOSE AND LEGISLATIVE HISTORY
T-Mobile maintains that refusing to explain why a permit application was denied will inhibit § 332(c)(7)(B)(iii)’s purpose and allow local governments to improperly restrict the construction of wireless communication facilities. Moreover, T-Mobile contends that the 1996 Act’s “in writing” requirement for a statement of reasoning for denied applications is a “non-negotiable” mandate that was not intended to provide deference to local authority, but instead was meant to “impose specific limitations on the traditional authority of state and local governments.” T-Mobile further argues that ruling for the City would violate the 1996 Act’s legislative history, stating that the traditional standard for “judicial review of agency actions” is for agencies to articulate reasons for denial in material that is “separate from the administrative record.”
The City, in contrast, notes that Congress had the additional intent in the 1996 Act to “minimize the intrusion on the normal processes of local government,” given that laypeople often make up local governments. The City argues that requiring additional statements explaining a denial disrupts this process. Moreover, the City highlights the 1996 Acts legislative history, noting that Congress initially attempted to remove local zoning control, but ultimately recognized that State and local governments possessed concerns regarding regulating wireless facilities. Additionally, the City points to a congressional report that states that § 332(c)(7) was added to “preserve the authority of State and local governments over zoning and land use matters except in limited circumstances.” The City contends that Congress believed that local authorities were in the best position to control zoning matters and that “[n]o more restraints can be imposed on the local government zoning process or read into the  Act.”
CONTEMPORANEOUSLY AVAILABLE STATEMENTS
In addition to the above arguments, the United States, as an amicus supporting neither party, contends that the City failed to satisfy the “in writing” requirement” because it did not issue a “contemporaneously available” written statement explaining its denial of T-Mobile’s application with its denial letter. The United States argues that, while the City submitted its denial letter stating that the meeting minutes were obtainable from the city clerk to T-Mobile on April 14, 2014, the meeting minutes were not available until May 10, 2010, leaving T-Mobile only four days to decide whether it wanted to pursue legal action given the thirty-day window to appeal. The United States asserts that local governments must issue denial sand the supporting reasoning for the denial contemporaneously. In this case, the United States maintains, the “substantial gap” in time between the City’s denial letter and the approval of its meeting minutes did not leave an appropriate amount of time for T-Mobile to decide its next course of action.
The City disagrees that the contemporaneous and timeliness issue is before the Court, asserting that it is beyond the question presented. In any event, the City argues, the availability of the minutes after the denial letter does not diminish the amount of time T-Mobile has to pursue legal action. According to the City, the thirty-day period for appeals should begin to run from the local government’s “final” act, which the City avers in this case was the adoption and approval of the minutes. The City submits that this analysis of the timing issue does not present any delay where, as here, the timing falls within the 150-day window set by the Federal Communications Commission regarding siting applications.
The Supreme Court’s decision in this case will clarify the 1996 Act’s “in writing” requirement. T-Mobile argues that a decision to deny an application to construct a wireless communications tower must appear in a separate written document that details the specific reasons for the denial. The City counters that the statute does not require the denial document to include reasons for the decision, just that the denial be “in writing.” The Supreme Court’s ruling may have significant implications for the public welfare, the judiciary, and local governments.
EFFECTS ON THE PUBLIC
T-Mobile and supporting amici argue that the City’s interpretation of the “in writing requirement” would adversely affect the economy. The Chamber of Commerce and the National Federation of Independent Business (“NFIB”) credit the wireless industry as a major driving force in global economic growth. They calculate that each instance of “local resistance” to the construction of a new wireless telecommunications tower will cost the United States economy millions of dollars. Similarly, PCIA—The Wireless Infrastructure Association (“PCIA”) notes that increased availability of “competitive wireless telecommunications services . . . will provide consumers with lower costs as well as with a greater range and options for such services.”
On the other hand, the City believes that T-Mobile’s concerns about the economy are without merit, partly because, in the City’s view, future innovations in wireless technology might render cell towers “a thing of the past.” According to the City, given the likelihood that new technology will supplant the need for permanent cell towers, allowing local governments to exercise their judgment on cell tower siting—subject to a plain reading of the statute—would have no bearing on the telecommunication industry’s footing in the global economy.
T-Mobile and supporting amici also stress that wireless broadband has been significant in promoting homeland security and public safety. PCIA notes that cell towers provide for wireless communication between first responders, universal access to emergency services, and improved emergency notification. Consequently, PCIA is concerned that the millions of Americans who lack wireless broadband access may suffer from the resistance to the construction of new towers.
The City, in contrast, emphasizes that the telecommunications industry and local government are equally integral to safeguarding the public welfare. The City believes that the Supreme Court can best protect the public by recognizing the proper balance between deferring to the autonomy of local government to regulate land use and promoting the telecommunications industry. Moreover, the City fears that without this balance, local governments will lose the flexibility to protect the needs, desires, and welfare of its constituents, such as preserving the aesthetic integrity of their individual communities.
EFFECTS ON THE JUDICIARY AND LOCAL GOVERNMENTS
T-Mobile and supporting amici assert that permitting denial letters that lack official reasons for the denial would “impose serious, unwarranted burdens on the judiciary.” T-Mobile stresses that because the contents of an administrative record are varied, courts would have to sift through various documents that oftentimes contain conflicting statements to discern the actual reasoning for the permit denial. Similarly, CTIA—The Wireless Association emphasizes that the availability of reasons within the decision document would reduce uncertainty about potential litigation.
In opposition, the City believes that T-Mobile’s judicial-burden argument is unwarranted. Moreover, the City is concerned that requiring a denial letter to contain sufficiently particular reasons for the denial will convert local governments into quasi-administrative agencies that “issue the equivalent of findings of fact and conclusions of law.” The City also worries that local governments will have to “jump through more and more technical and procedural hoops.” Similarly, the National League of Cities fears that requiring “non-lawyer laypeople” to perform these functions is not “realistic” given the complexity of the 1996 Act and local zoning laws.
In this case, the Supreme Court will consider whether the 1996 Act’s “in writing” requirement mandates local governments to supplement denied applications for wireless telecommunication facilities with clear reasons for denial. The Supreme Court has the opportunity to clarify whether an issued letter providing the availability of meeting minutes or a transcript of the meeting sufficiently meet the “in writing” requirement. Resolution of this issue will likely affect the national economy, the promotion of public safety, and the interaction between the judiciary and local governments.
- Seth L. Cooper: States Can Promote Next-Generation Wireless by Removing Regulatory Barriers, American Legislator (Apr. 3, 2014).
- Brian Heaton: U.S. Supreme Court to Decide Key Cell Tower Siting Case, Government Technology (May 29, 2014).
- Brent Kendall: Supreme Court to Hear T-Mobile Cell-Tower Case, The Wall Street Journal (May 5, 2014).
- Matthew Schettenhelm: Is a Local Government’s Decision in Writing? The U.S. Supreme Court To Rule, Best Best & Krieger, LLP (July 29, 2014).