November 25, 2015 Urban Lawyer

Recent Developments in Land Use Regulations of Cellular Telecommunications Facilities

by Alexander Judd

Alexander W. Judd ( is an Associate at Robinson & Cole LLP in its Environmental and Utilities Practice Group. Mr. Judd’s practice focuses on all aspects of energy and telecommunications law. As part of his telecommunications
practice, he represents wireless carriers in regulatory proceedings before state and municipal agencies.

I.  The Telecommunications Act

The Telecommunications Act of 1996 (“TCA”) enables, but limits, local zoning authority for wireless facilities. The TCA provides: “nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”1 However, the TCA limits the powers of local zoning authorities in several ways: (1) no regulation can “unreasonably discriminate among providers” or “prohibit or have the effect of prohibiting the provision of personal wireless services”; (2) “[a] State or local government” must act “within a reasonable period of time after [a] request” to “place, construct, or modify” a facility has been filed by a wireless provider; (3) “[a]ny decision by a State or local government . . . to deny a request . . . shall be in writing and supported by substantial evidence contained in a written record”; (4) “[n]o State or local government [can] regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s (“FCC”) regulations”; and (5) “[a]ny person adversely affected by any final act[] or failure to act by a State or local government . . . may, within 30 days,” commence a court action.2

II.  Written Decision: Any Decision by a State or Local Government to Deny 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

A.     “In Writing” Requirement

For years, courts grappled with the requirement that a local board decision must be in writing. A majority of circuits to address this issue, including the First,3 Sixth,4 and Ninth Circuits,5 had previously interpreted the TCA to require that the denial of a wireless communication facility application by a local board “(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.”6 These same courts “conclude[d] that something more than a bare written statement of denial [was] necessary, because judicial review contemplated by the TCA is frustrated if a reviewing court has no means to ascertain the rationale behind the decision of a local zoning board.”7

The Fourth,8 Eighth,9 and Eleventh Circuits10 took a different approach. For instance, in 2013, the Eleventh Circuit Court of Appeals held that the “in writing” requirement does not require that a decision be in a separate writing.11 In differentiating its holding from those circuits that had held otherwise, the Eleventh Circuit stated:

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 views” than the words themselves bring along, or to take a more “pragmatic, policy-based approach” than the plain meaning of those words taken. We are interpreting a statute, not designing one.12

In January 2015, the Supreme Court decided T-Mobile South, LLC v. City of Roswell, which reversed a 2013 Eleventh Circuit decision.13 In City of Roswell, the City denied an application for a cellular tower and argued that its denial satisfied the “in writing” requirement, as it was “reduced in writing in numerous forms, including the denial letter, hearing minutes, and hearing transcript.”14 T-Mobile contended that the district court “adopted the correct test . . . and the City’s brief, three-sentence letter notifying T-Mobile of the denial of its permit application did not suffice under that test.”15 The minutes of the meeting were not published until twenty-six days after the letter denying the application was sent to T-Mobile.16 In reversing the Eleventh Circuit, the Supreme Court resolved issues the circuits had been unable to resolve. First, it confirmed that the TCA requires localities to “provide reasons when they deny applications to build cell phone towers.”17 Second, the reasons need not “appear in the same writing that conveys the locality’s denial of an application”18 as long as the other writing is “issued essentially contemporaneously with the denial.”19

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