Cell Site Denials: 11th Circuit on the “in writing” requirement

Today, in an artfully written decision, the Chief Judge of the 11th Circuit Court of Appeals announced the decision of the court in T-Mobile South, LLC v. City of Milton.

At issue was whether the City’s denial of three cell sites met the “in writing” requirement of 47 U.SC. § 332(c)(7)(B)(iii).

It seems as if it would be a simple matter to determine whether a local government’s decision to deny a cell tower construction permit is “in writing.” After all, everyone knows what “in” means and everyone knows what “writing” means. How much simpler and clearer could the statutory language be? As it turns out, however, those two words as they appear in the statute have been subject to some strikingly different interpretations by other courts of appeals, which are echoed in the parties’ opposing positions in this case.

The short (26 page) decision clearly and in English talks about whether the written decision must, itself, cite the reasons for denial (it does not)

All that statutory provision requires of the denial decision is that it be in writing and be supported by substantial evidence in a written record. Whether the denials in this case were supported by substantial evidence in the written record is not before us, but the existence of that additional requirement necessarily means that there must be reasons for the denial that can be gleaned from the denial itself or from the written record; otherwise, there would be nothing for substantial evidence to support. What is neither expressed nor implied, however, is any requirement that the reasons for a denial must be stated in the letter or some other document that announces the decision, if there is a separate document doing that, or any prohibition against having the reasons stated only in the hearing transcript or minutes.

[Emphasis added.]

Also contained in the decision is a long and interesting decision regarding


In interpreting what the words “in writing” mean in § 332(c)(7)(B)(iii), we are reluctant to import into those words, as some of our sister circuits have, “more pragmatic policy values,” MetroPCS, 400 F.3d at 722, than the words themselves bring along, or to take a more “pragmatic, policy-based approach,” Helcher, 595 F.3d at 718, than the plain meaning of those words take. We are interpreting a statute, not designing one. Although we, like most judges, have enough ego to believe that we could improve a good many statutes if given the chance, statutory construction does not give us that chance if we are true to the judicial function. Our duty is to say what statutory language means, not what it should mean, and not what it would mean if we had drafted it.

Quite an interesting decision.  Well worth the read.

Here is the decision: T-Mobile.v.Milton.2013-9-05.201210487


The Time Warner Cable – CBS Fight is Over

Their (corporate) parents must be so very proud of them!
Their (corporate) parents must be so very proud of them!

According to reports published in various newspapers, including the Los Angeles Times, Time Warner Cable and CBS have ended their fight over retransmission rights.  Hopefully that means that (a) Time Warner Cable subscribers will see all of the CBS channels restored very quickly, and (b) that CBdisengeniouS will restore access to its online content from Time Warner Cable IP addresses.

This doesn’t end the other fight…the lawsuits from subscribers who claim that they (we) are owed for the unannounced decimation of all of the CBS channels during this battle  (except, oddly, one CBS sports channel here in L.A. that TWC seems to have missed).

Now that the battle is over, we’ll see how those were the collateral damage will fair.   They are called Time Warner Cable subscribers.

Also, we’ll have to wait to see if Congress steps in to amend the Telecom Act to give the FCC stronger teeth to resolve these disputes.