Five years later, SCOTUS settles T-Mobile’s siting dispute with Georgia city

In Associations News, Featured News by Wireless Estimator

Supreme-Court-T-MobileThe United States Supreme Court gave a wake-up call to municipalities today as to how government agencies must inform wireless carriers, tower owners and the siting community at large when they reject a tower construction request.

In its 6-3 ruling the Justices said that local governments like Roswell, Ga., that is at the center of the case must provide a written explanation in a timely manner about why they are denying a wireless structure request. However, that explanation doesn’t need to be included in the initial denial letter.

Justice Ruth Bader Ginsburg joined a dissent by Chief Justice John Roberts that says nowhere in the telecommunications siting statute does it say that a municipality must provide its written record on roughly the same day as the denial.

Justice Clarence Thomas dissented separately and joined as to Part I of the Roberts dissent. His opinion takes to task the court’s apparent “eagerness” to reach beyond the statute.

“We have been unwilling to impose procedural requirements on federal agencies in the absence of statutory command, even while recognizing that an agency’s failure to make its decisions known at the time it acts may burden regulated parties,” the dissent states.

The majority of Justices held that a municipality’s denial of an application to build a cell phone tower “shall be in writing and supported by substantial evidence contained in a written record,” and requires localities to provide the reasons for such denials in writing.

“In this case, the city provided its reasons in writing and did so in the acceptable form of detailed minutes of the City Council meeting,” Justice Sonia Sotomayor wrote for the majority. “The city, however, did not provide its written reasons essentially contemporaneously with its written denial. Instead, the city issued those detailed minutes 26 days after the date of the written denial and just 4 days before petitioner’s time to seek judicial review would have expired. The city therefore did not comply with its statutory obligations. We do not consider questions regarding the applicability of principles of harmless error or questions of remedy, and leave those for the Eleventh Circuit to address on remand.”

The case involved petitioner T-Mobile South’s application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in Roswell. The carrier proposed a “monopine”—a monopole designed to look like a pine tree, which was approximately 20 feet taller than surrounding trees.

Roswell’s zoning department found that the application met the requirements in applicable city ordinances, and recommended approval of the application subject to several conditions. The city 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, however the correspondence 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.

A federal trial judge sided with T-Mobile in its initial lawsuit, arguing the municipality violated federal communications law that says government officials need to provide a denial “in writing and supported by substantial evidence contained in a written record.” But the 11th U.S. Circuit Court of Appeals overruled that and said that the city met the federal requirement by issuing a general denial letter and then, later, a transcript of hearings that led to the denial.

In a statement regarding the decision, Jonathan Adelstein, the President and CEO of PCIA – The Wireless Infrastructure Association said, “PCIA is pleased that the United States Supreme Court agrees with our assessment that the Telecommunications Act of 1996 requires localities to provide clear, written reasons when applications to build wireless facilities are denied. Today’s decision in T-Mobile v. Roswell vindicates PCIA’s conviction that wireless providers must be informed in a clear-cut and timely manner when siting applications are turned down. In reversing and remanding the Eleventh Circuit’s incorrect holding, PCIA applauds the Supreme Court for recognizing that the City of Roswell had not complied with its statutory obligation to inform PCIA member T-Mobile of its rationale for denying a siting application. PCIA is gratified that the Court has once again handed down a decision that will help the industry build out broadband networks across the country. On the heels of today’s decision, PCIA will continue to alleviate burdens on wireless broadband build-out wherever they may be.”

The opinion in T-Mobile South, LLC v. City of Roswell is here.

When Justice Roberts was a judge on the U.S. Court of Appeals for the D.C. Circuit his sole tower siting vote involved a BellSouth 185-foot monopole in Georgetown, SC. The procedural error article is available here.