The first lawsuit against the FCC challenging the constitutionality of Section 6409(a) has been filed in the 4th Circuit Court of Appeals. Montgomery County is suing the FCC.
Let the litigation begin. You can right click on the link below to download the entire compliant, but you can pretty much stop reading after the second page.
(Updated 1/21/15: see bottom)
This is a flash report on the Supreme Court decision announced today in T-Mobile v. Roswell penned by Justice Sotomayor. A detailed analysis will follow. For now, here is the Syllabus (not part of the decision) followed by a link to the 28-page decision. The big takeaway: A City need not include any or every reason for denial in the denial letter, but it must make the record and reasons for denial available essentially contemporaneously with the written decision. Waiting 26 days to issue the reasons for denial after the denial was determined was too long a period. Justice Alito issued a concurring opinion. CJ Roberts joined by Justice Ginsburg and Justice Thomas, dissented in various parts.
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
T-MOBILE SOUTH, LLC v. CITY OF ROSWELL, GEORGIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 13–975. Argued November 10, 2014—Decided January 14, 2015
Respondent Roswell’s city council (Council) held a public hearing to consider an application by petitioner T-Mobile South, LLC, to build a cell phone tower on residential property. During the hearing, several Council members expressed concerns about the tower’s impact on the area. The hearing ended with the Council unanimously passing a motion to deny the application. Two days later, the City’s Planning and Zoning Division informed petitioner by letter that the application had been denied and that minutes from the hearing would be made available. The detailed minutes were published 26 days later.
Petitioner filed suit, alleging that the Council’s denial was not supported by substantial evidence in the record. The District Court agreed, concluding that the City, by failing to issue a written decision stating its reasons for denying the application, had violated the Telecommunications Act of 1996, which provides that a locality’s denial “shall be in writing and supported by substantial evidence contained in a written record,” 47 U. S. C. §332(c)(7)(B)(iii). The Eleventh Circuit, following its precedent, found that the Act’s requirements were satisfied here because petitioner had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded.
Held:
1. Section 332(c)(7)(B)(iii) requires localities to provide reasons when they deny applications to build cell phone towers. This conclusion follows from the Act’s provisions, which both preserve and specifically limit traditional state and local government authority. It would be considerably difficult for a reviewing court to determine whether a locality’s denial was “supported by substantial evidence contained in a written record,” §332(c)(7)(B)(iii), or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” §332(c)(7)(B)(i)(I), or regulated siting “on the basis of the environmental effects of radio frequency emissions,” §332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial. And nothing in the Act suggests that Congress meant to use the phrase “substantial evidence” as anything but an administrative law “term of art” that describes how “an administrative record is to be judged by a reviewing court.” United States v. Carlo Bianchi & Co., 373 U. S. 709, 715. Pp. 6–8.
2. Localities are not required to provide their reasons for denying siting applications in the denial notice itself, but may state those reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. Pp. 8–13.
(a) Nothing in the Act’s text imposes a requirement that the reasons be given in any particular form, and the Act’s saving clause, §332(c)(7)(A), makes clear that the only limitations imposed on local governments are those enumerated in the statute. Localities comply with their obligation to give written reasons so long as those reasons are stated clearly enough to enable judicial review. Because an adversely affected entity must decide whether to seek judicial review within 30 days from the date of the denial, §332(c)(7)(B)(v), and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.Pp. 8–11.
(b) Petitioner’s contrary arguments are unavailing. The statute’s word “decision” does not connote a written document that itself provides all the reasons for a given judgment. The absence of the word “notify” in the provision at issue also does not signal an intention to require communication of more than a judgment. Nor does an obligation to provide reasons in the writing conveying the denial arise from the “substantial evidence” requirement itself or from the requirement of court review “on an expedited basis,” §332(c)(7)(B)(v). It is sufficient that a locality’s reasons be provided in a manner that is clear enough and prompt enough to enable judicial review. Pp. 11–13.
3. The City failed to comply with its statutory obligations under the Act. Although it issued its reasons in writing and did so in an acceptable form, it did not provide its written reasons essentially contemporaneously with its written denial when it issued detailed minutes 26 days after the date of the written denial and 4 days before expiration of petitioner’s time to seek judicial review. P. 14.
731 F. 3d 1213, reversed and remanded.
Here is the decision in full (28 pages, PDF format): tmobile.v.roswell.13-975_8n6a
Update: Catalina Lehner, the wireless planner par excellence at the City of Albuquerque reminded me that the big winners in this case were, as usual, the lawyers. So true.
As expected, the new FCC rules for wireless siting appeared in today’s Federal Register. I have attached them here as a PDF.
According to the Federal Register, not all of the rules may become effective on the dates published in the notice. Some of the rules are still pending Office of Management and Budget approval.
Tripp May, my partner is in the process of updating our ‘Clients and Friends Memo’ on the new rules. If you are a Client or government attorney and would like a complimentary copy of our memo, please email Tripp or give him a call on 310-405-7340.
Jonathan
Today, January 5 the FCC issued an “Erratum” to its Report and Order, FCC 14-153 (the wireless siting order released on October 21, 2014).
The Erratum spans six (6) pages.
Here is the document, in PDF format:
Tripp and I are in the process of reviewing the changes, and we’ll be issuing a revision to our memorandum to clients and friends of Telecom Law Firm, P.C.
Last night I presented at the City of Calabasas, California’s Communications and Technology Commission on the new FCC rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. I also talked about a bunch of other stuff the FCC added in to the mix. If you’re in to such things you may find the video (below) of my presentation and the Q&A that followed to be useful, or at least entertaining. Maybe even both.
To better understand some elements in my lecture, please understand that it followed immediately after planning item where Verizon Wireless came to the City to permit-in-arrears a site they modified without first securing City permits. This was the sixth time they had modified their cell sites in the City without benefit of first securing City permits.
Thanks to the City of Calabasas for putting the video up on their YOUTUBE channel.
My discussion is based on my own opinions and does not reflect the position of any government, but it might.
Today, October 17, 2014, the Federal Communications Commission (“Commission”) voted to adopt new federal rules that significantly undermine local police powers to regulate wireless infrastructure. The rules will become effective 90 days after the Commission publishes the Report and Order (“Order”) in the Federal Register.
Although as of this writing the Commission has not yet released its Order to the pubic, each Commissioner previewed portions of the Order in their comments before the vote.
State and local governments can expect new special exceptions and exclusions from environmental and historic preservation reviews for DAS and small cells, even when the project involves a diesel generator or hydrogen fuel cells.
Section 6409(a)
Perhaps the most dramatic changes will deal with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Section 6409(a)” which is codified at 47 U.S.C. § 1455(a)) and the Commission’s time limits on local wireless site application reviews (colloquially known as the “Shot Clock”) for projects that qualify for treatment under Section 6409(a).
Section 6409(a) mandates that State and local governments “may not deny, and shall approve” an “eligible facilities request” so long as that eligible facilities request does not “substantially change the physical dimensions of the existing wireless tower or base station.” The Commissioners explained that the Order would define ambiguous statutory terms, impose a 60-day deadline for State and local governments to act on a collocation application, and inflict a “deemed granted” remedy for failures to act before the deadline.
Commissioner Ajit Pai emphasized that, under the rules adopted today, an applicant can begin construction on day 61 after the State or local government fails to act on day 60. Whether this preempts building permit requirements is unclear, and could lead to serious public safety hazards from tower/facility construction like the ones that caused the 2007 Malibu Canyon fire.
One big question the Order will answer is how the Commission defined a “substantial change in the physical dimensions of a wireless tower or base station.” This issue is crucial because Section 6409(a)—and the truncated time for review under a deemed-granted threat—applies only when the applicant submits a request to collocate or modify a site that does not result in a substantial change. None of the Commissioners offered specifics, but the Commission hinted that it leaned towards a one-size-fits-all approach.
The FCC Shot Clock
The Commission also indicated that the Order will revise its Shot Clock rules. Prior to today’s Order, local governments had to review and grant or deny applications for new sites within 150 days or 90 days for collocations. Now, for at least collocations, the Shot Clock is reduced to 60 days. The Order will likely extend the Shot Clock to DAS and small cells.
The Commissioner’s hinted that the Order would preempt or sharply local moratoria.
One potential bright spot came from Commissioner Pai, who suggested that the “deemed granted” remedy imposed under Section 6409(a) does not extend to Shot Clock violations for new sites or eligible facilities requests that cause a substantial change. However, Commissioner Pai hopes the Commission will revisit that issue within 18 to 24 months.
So What Now?
In the near-term, the administrative process at the Commission is not yet finished. Municipalities and other interested parties can file a “Petition to Reconsider,” which asks for specific changes to a published order. Petitions must be received within 30 days after the Commission publishes a public notice of the Order (expected in the Federal Register). Such petitions do not necessarily stop the rules from becoming effective or during the time the Commission considers the petition.
Court Challenges to the Order
It seems very likely that the Order will be challenged in federal court. State and local governments will likely argue that the Constitution and settled case law prohibit the federal government from enacting a statute that forces State and local governments to administer a federal program. Lawyers will likely argue that Section 6409(a) unconstitutionally forces municipalities to administer a federal wireless infrastructure deployment program because it requires them to process applications under federal standards within a federal timeline or face federal penalties. Further, Section 6409(a), now presumably exacerbated by the rules in the Order, isolate the federal government from the political accountability of the law and rules, shifting that accountability to the states and local governments that have no option but to administer the program. Any such challenge might not occur for many months, and the machinery of the judicial system turns slowly.
New Local Wireless Ordinances
In the meantime, the wireless industry seems intent on rewriting local ordinances, too. For example, Commissioner Mignon Clyburn commended CTIA and PCIA (lobbyists for the wireless industry) for their offer to teach local governments “best practices” and to provide “model ordinances and applications” for streamlined application reviews. If this sounds like the fox guarding the hen house, it is. Local governments should look to advocates unaligned with the industry to be regulated for help rewriting their local laws and ordinances to comply with the Order.
Blame the Local Governments?
Commissioner Michael O’Rielly said that the new rules will streamline wireless deployment because “the gig is up” for recalcitrant municipalities. Unfortunately for all involved, one more likely result is that wireless ordinances and review processes will become more detailed, more rigorous, and more contentious. More to the point, however, is that the public will likely be far from happy with Congress Members who have passed a law that makes their local community officials mere functionaries forced to carry out this federal government program at the expense of local community aesthetics and interests.
We will offer commentary on the specifics in the Order once the Commission makes the Order available to the public.
Telecom Law Firm, P.C.
In 2012, at the behest of the wireless industry (and specifically the PCIA), Congress passed and the President signed the Middle Class Tax Relief and Job Creation Act. Buried within the hundreds of thousands of words in the Act are 149 word comprising Section 6409(a) dealing with wireless site collocations.
Here are those 149 words:
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.
As you can imagine reading the plain words of this portion of the Act, it doesn’t make a lot of sense. Most of the key terms are undefined. Terms like, “wireless tower”, “base station”, “transmission equipment”, and my personal favorite, “substantially change the physical dimensions.”
More important, this Act is Congress commanding that “a State or local government may not deny, and shall approve, any eligible facilities request…” Lawyers know that these types of words implicate the Tenth Amendment to the Constitution, and are designed and intended to “blur the lines of political accountability” by isolating those who intend the result (here, Congress) from those who have to produce the result (the State and local governments commanded with carrying out the law). For more on the unconstitutionally of Section 6409(a), see John Pestle’s expansive review linked via his blog.
Notwithstanding the constitutional issues of the law, until struck by a court, state and local governments are bound to follow it. After the law became effective, those state and local governments started amending their local laws and ordinances to create the gap-filling definitions necessary to make rational sense of the law.
It turns out that those state and local governments had their own ideas how to fill in the missing definitions in a way that made sense in the local setting. The wireless industry was not amused.
As the expert agency for telecommunications, in January 2013 the FCC’s wireless bureau stepped in offering a non-binding guidance on what it thought Section 6409(a) meant and how it should be made operational in practice. The state and local governments were not amused.
In September, 2013 the FCC released a Notice of Proposed Rulemaking (“NPRM”) to pave the path to formal rules that would have to be followed by states and local governments.
Today the FCC Commissioners adopted rules flowing out of the NPRM process to explain what Congress intended through 47 U.S.C. § 1455(a), and what it really means. Congressional intent is an interesting subject all by itself because in connection with Section 6409(a), Congress was mute. There were no speeches or floor debates during the adoption phase, and the only record comment came after the law was adopted. That one comment actually misstated the law that was adopted. Oh well.
As of the initial posting of this blog item, the Report and Order are not yet out. I’ll post the R&O when it’s available.
Here is the audio of the item. The running time is 27 minutes, 23 seconds.
As you’ve likely seen in the general media, MARRIOTT INTERNATIONAL, INC. and MARRIOTT HOTEL SERVICES, INC. (jointly, “Marriott”) and the FCC have entered into a Consent Decree in connection with Marriott’s intentionally blocking of Wi-Fi access points brought in to the conference center portion of the Gaylord Opryland Hotel and Convention Center in Nashville, Tennessee (a property operated by Marriott). The Consent Decree provides that Marriott will pay a fortitude of $600,000 for violating 47 U.S.C. § 333.
47 U.S.C. § 333, the law violated by Marriott, says in its entirety, “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government. ”
It turns out that Marriott used its own sophisticated Wi-Fi network to detect and disable what the Commission called “rogue” portable Wi-Fi access points that use the cellular network for Internet connectivity. If you own a “Mi-Fi” type device like that shown here, this is what Marriott electronically hunted down and disabled.
Why would Marriott want to do such a thing? Well, it turns out that Marriott charged between $250-$1,000 per access point to allow convention visitors and booth-holders to use their own device inside the convention center.
Based on the detailed description and terms provided by the FCC, it appears that Marriott used something like (if not specifically) a Cisco system and software to detect and disable the so-called rogues. Cisco’s Prime Infrastructure, used to manage a Cisco Unified Network Solution, does exactly what the FCC described.
According to Cisco in its “Cisco Prime Infrastructure Configuration Guide, Release 1.3“,
When the Cisco Unified Wireless Network Solution is monitored using Prime Infrastructure, Prime Infrastructure generates the flags as rogue access point traps and displays the known rogue access points by MAC address. The operator can then display a map showing the location of the access points closest to each rogue access point. The next step is to mark them as Known or Acknowledged rogue access points (no further action), Alert rogue access points (watch for and notify when active), or contained rogue access points (have between one and four access points discourage rogue access point clients by sending the clients deauthenticate and disassociate messages whenever they associate with the rogue access point).
(Page 3-67, Emphasis added)
Basically, if the controlled wireless network detects a “rogue” access point (say, a Mi-Fi not paying a Troll-Toll) operating within the physical confines of the larger Wi-Fi network, then the Wi-Fi controller can intentionally disrupt the Mi-Fi’s operation by sending the clients trying to connect to the Mi-Fi deauthenticate and disassociate messages whenever those devices try to associate with the Mi-Fi.
Now that the FCC has dinged Marriott to the tune of $600,000, will the Commission turn its attention to firms that manufacture the software and equipment allowing people and entities like Marriott to violate Section 333 of the Communications Act?
To read the FCC’s full Order and Consent Decree CLICK HERE. If the PDF does not save or open up in your browser, right click to do a save as to your computer.
Jonathan
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.
Jonathan
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.”
III. Conclusion
The judgment of the district court is affirmed.
You can download the entire decision here.