Posted by: Patricia Salkin | December 20, 2013

11th Circuit Court of Appeals Holds City Complied with “In Writing Requirement” of the Telecommunications Act of 1996 (TCA)

The Circuit Court was asked to interpret the meaning of TCA 332(c)(7)(B)(iii)’s provision which states that “any 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 a written record” (emphasis added). The Milton City Council had denied two of the three applications made by T-Mobile South to construct cell towers in the City, basing that decision on a “non-exhaustive” list of five reasons for the denial recited at the time the City Council voted, and had sent T-Mobile letters about its application denials which did not include any of the reasons for the denials. A third application received a conditional approval, which contained terms T-Mobile believed were unfair and inappropriate.

T-Mobile filed suit under the TCA claiming that (1) these letters failed to meet the TCA’s “in writing” requirement, (2) that the City’s regulations on cell towers prohibited or effectively prohibited their placement, construction, or modification, (3) the City had unreasonably discriminated against wireless providers, and (4) the City had generally acted in a way which effectively prohibited the provision of cell service. Soon thereafter, T-Mobile moved for summary judgment on its claims that the denials violated the TCA’s “in writing” and “supported by substantial evidence” requirements. The District Court granted summary judgment on T-Mobile’s claim that the City had violated the TCA’s “in writing” requirement because it’s written decisions, the letters sent to T-Mobile, did not contain any reasons for the denial. On the substantial evidence claim, the Court remanded to the issue to the City of Milton to provide, in writing, the basis for its denial. None of T-Mobile’s other claims were addressed. Upon reconsideration, the District Court awarded T-Mobile a permanent injunction preventing the City from denying T-Mobile’s applications, so long as T-Mobile produced information required by the City. The City here appeals.

On appeal, the City argued that it had fulfilled the TCA’s “in writing” requirement because the letters it provided to T-Mobile unambiguously stated the reasons for the City’s decision, and the detailed explications of those reasons were listed in the 181-page written transcript of the hearings on the matter, as well as the 65-pages of City Council meeting minutes on the issue. While many other jurisdictions have held that the TCA demands a separate writing, with an explanation of reasons, in order to fulfill the “in writing” requirement, the Eleventh Circuit held it was sufficient that the City provided enough written documentation, even if the basis for the decision was explained in a separate document from the decision letter, so long as the written record, taken as a whole, conveyed the same information.

For those reasons, the Court found that the written records provided by the City, taken together, adequately conveyed the City’s decision and fulfilled the TCA’s “in writing” requirement.

T-Mobile South, LLC v. City of Milton, Georgia, 728 F.3d 1274 (11th Cir. 9/5/13)

The opinion can be accessed at:

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