A Closer Look at T-Mobile v. Roswell
On Jan. 14, the U.S. Supreme Court issued its long-awaited decision in T-Mobile South LLC v. City of Roswell, holding that the city violated the "in writing" requirement of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii), when it failed to provide T-Mobile with its reasons for denying a permit application within a reasonable time of its notice of denial.
While the court could have concluded its analysis there, it instead took the opportunity to also address the substantive component of the in-writing requirement, explaining that although the city was not required to provide its written reasons for denying a siting application in a particular format, the Telecommunications Act mandated that the stated reasons provide enough detail to "enable judicial review."
Although the Supreme Court clarified a number of important issues impacting how public agencies and telecommunications providers process future applications, as is often the case when the U.S. Supreme Court rules, it did leave one key issue unresolved. Specifically, the majority declined to state whether injunctive relief is the appropriate remedy for a violation of the in-writing requirement.
Because of this open question, some have argued that the court's ruling, while at first blush a victory for telecommunications companies, was in actuality a victory for public agencies. While only time will tell, given the strong precedent supporting injunctive relief for violations of the Telecommunications Act, we believe that it is premature for public agencies to declare such a victory.
Brief Overview of the In-Writing Requirement
Section 332(c)(7)(B)(iii) of the Telecommunications Act provides that "[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 the record." As such, courts have interpreted Section 332(c)(7)(B)(iii) as imposing two requirements: (1) that the denial be in writing, and (2) that the denial be supported by substantial evidence. T-Mobile Northeast LLC v. City Council of the City of Newport News, Virginia, 674 F.3d 380, 385 n.5 (4th Cir. 2012).
With respect to the first requirement, that a denial be in writing, the Unites States Court of Appeals for the Ninth Circuit has found that a locality must "issue a written decision separate from the written record which contains sufficient explanation of the reasons for the decision to allow a reviewing court to evaluate the evidence in the record supporting those reasons." MetroPCS Inc. v. City and County of San Francisco, 400 F.3d 715, 723 (2005).
While a handful of appellate courts have adopted a similar interpretation (see New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002); Sw. Bell Mobile Sys. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)), a number of other courts have held that the stamping of the word "denied" on a zoning application, without any statement of reasons for the decision, is sufficient to satisfy the "in writing" requirement. E.g., AT&T Wireless PCS Inc. v. City Council, 155 F.3d 423, 429 (4th Cir. 1998). It was this circuit split that prompted the Supreme Court's review.
Relevant Facts and Procedural History
In 2010, T-Mobile submitted an application to build a cell phone tower on a vacant residential property. During the hearing on the application, several city council members expressed concerns about the tower's aesthetic compatibility and impact on the surrounding area. Subsequently, the council voted unanimously to deny the application. Two days later, the city informed T-Mobile by letter that the application was denied and that minutes from the hearing would be made available to T-Mobile. The detailed minutes of the hearing were published and delivered 26 days later.
Within 30 days of the notice of denial, consistent with the short statute of limitations provided for in the Telecommunications Act, T-Mobile filed suit in federal court alleging that the city council's denial violated the in-writing requirement and was not supported by substantial evidence in the record. The district court agreed that the city council violated the Telecommunications Act when it failed to issue a written decision that stated the reasons for the denial. The district court did not address the substantial evidence issue because the violation alone would entitle T-Mobile to summary judgment and issuance of appropriate injunctive relief.
The Eleventh Circuit reversed, concluding 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." Therefore, the Eleventh Circuit found that because the denial letter stated that the application had been denied, and informed T-Mobile that it could obtain access to the minutes of the hearing, the city had met the requirements of the Telecommunications Act.
The Supreme Court's Reversal
As to the first issue, whether the Telecommunications Act requires government agencies to provide the basis for their denial of a cell tower siting application, the court answered in the affirmative. The Supreme Court explained that in order to determine whether a denial is supported by substantial evidence, the court must be able to determine the reasons for the denial of an application. And, a writing stating the reasons is not only "commonsensical" given this reality, but the statutory text and structure of the Telecommunications Act supports the imposition of such a requirement. The court also stressed, however, that the grounds need not be elaborate or sophisticated but must be merely clear enough to enable judicial review.
As to the second issue, whether the reasons for the denial of the application must appear in the same writing that conveys the government agency's decision of denial, the court answered in the negative. The court did note, however, that "[a]lthough the statute does not require a locality to provide its written reasons in any particular format, and although a locality may rely on detailed meeting minutes as it did here, we agree with the Solicitor General that ‘the local government may be better served by including a separate statement containing its reasons.'"
As to the issue of timing, the court, focusing on the fact that the Telecommunications Act provides a short 30-day statute of limitations for challenging a denial, concluded that "[b]ecause an entity may not be able to make a considered decision whether to seek judicial review without knowing the reasons for the denial of its application, 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." The court declined to provide explicit parameters for determining what would be considered "essentially the same time."
As to the third issue, whether a failure to comply with the "writing" requirement should result in the issuance of the requested permit or approval, the court simply punted, thereby allowing the lower courts to muddle through this issue and reach their own conclusions.
While Justice Samuel Alito concurred with the majority's interpretation of the "writing" requirement under the Telecommunications Act, he wrote separately to address the merits. In his concurrence, Justice Alito focused on three administrative law principles.
First, Justice Alito noted the principle that a court must "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Justice Alito explained that a succinct statement that a permit has been denied because of aesthetic incompatibility with the surrounding area should be sufficient to satisfy this principle.
Second, Justice Alito noted a court must not invalidate a decision if the error was harmless. Based on the facts of this case, Justice Alito had difficulty seeing any prejudice to T-Mobile, since the entity participated in the decision-making process and transcribed the hearing. And third, Justice Alito noted the principle that a court must not remand errors to the agency except in rare cases. Applying this third principle, Justice Alito explained that the majority's decision should not be viewed to require that the cell tower be built.
In addition to the concurrence by Justice Alito, Chief Justice John Roberts, joined by Justice Ruth Bader Ginsburg, and Justice Clarence Thomas (as to Part I only), wrote a strong dissent to the majority opinion, disagreeing with the majority's analysis.
Because the Supreme Court declined to address the remedy issue, it seemed likely that public agencies would continue to argue that a harmless error standard should apply to violations of the in-writing requirement. And in what may be the first decision addressing the issue after the U.S. Supreme Court's decision in T-Mobile South LLC v. City of Roswell, there would appear to be some support for that argument.
In Vantage Tower Group LLC v. Chatham County-Savannah Metropolitan Planning Commission, No. 4:13-cv-258, 2015 U.S. Dist. LEXIS 6727 (S.D. Ga. Jan. 20, 2015), the Southern District of Georgia found that the city of Savannah violated the in-writing requirement of Telecommunications Act when it failed to provide the reasons for its denial of a variance.
Despite this finding, however, the district court declined to issue injunctive relief. Instead, the district court found that because the Eleventh Circuit had previously interpreted the in-writing requirement to merely require a statement informing the applicant that the application was "denied" without providing any reasons for the denial, the city had not acted in bad faith when it complied with then-current law. And therefore, instead of issuing injunctive relief, the district court remanded the matter back to the city so that it could issue a new decision that complied with the Telecommunications Act.
While the Georgia District Court's decision is clearly a win for public agencies, based on the district court's analysis, the outcome should arguably be different in circuits that established a more robust in-writing requirement, like the Ninth Circuit.
Further, some courts already have a history of concluding that the failure to provide the reasons for a denial in a timely manner allows "for the evasion of substantive review," and is contrary to congressional intent, and therefore remanding the matter back to the public agency "would frustrate the [Telecommunications Act's] intent to provide aggrieved parties full relief and on an expedited basis." See Va. Metronet Inc. v. Board of Sup'rs of James City County, 984 F. Supp. 966, 973 (E.D. Va.); Sprint Spectrum LP v. City of Dardenne Prairie, No. 4:06CV-00095, 2006 U.S. Dist. LEXIS 67006, at *17 (E.D. Mo. Sept. 19, 2006) (same). Therefore, in these jurisdictions, one would anticipate that a court would not hesitate to issue injunctive relief when there is a violation of the in-writing requirement.