Posted by: Patricia Salkin | June 2, 2014

Fed. Dist Court in Arkansas Holds That An Email With A Video Attachment Of The Court Meetings Satisfies The In Writing Requirement of the Telecommunications Act

Smith Communications, LLC (“Smith”) asserted a claim under the federal Telecommunications Act (TCA) based on the denial by defendant, Washington County, Arkansas (“Washington County”), of a conditional use permit to build and operate a personal wireless communications facility (the “East Prairie Grove Tower Site”). In June 2013, the Quorum Court heard the appeals and voted to reject Smith’s application with three members voting in favor of it; ten members voting against it; and with one member being absent and not voting. The Washington County staff sent an email to Smith later on June 28, 2013, stating that: “[t]he minutes and video of the first and last Quorum Court meetings will act as the County’s written reason for denial.”

The Court held it cannot substitute its determination for that of the administrative fact-finder just because it might believe that the fact-finder is, or might be, wrong. Instead, if those findings are supported by some substantial level of evidence (but less than a preponderance) on the record as a whole, so that a reasonable fact-finder could reach the same conclusion, the Court must affirm them. Here, keeping in mind that the foregoing standard is “essentially deferential”, the Court concluded that Washington County had before it substantial evidence on the record as a whole that the tower’s preeminence on the landscape; its proximity to residences; its dominance of the views available to occupiers of adjacent properties; and the effects of its presence on the values and aesthetics of nearby properties made approval inappropriate. As to the sufficiency of the email as a written decision, the court held that a written decision must only “(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.” The Court found the written decision contained in the addendum in compliance with the TCA. For the foregoing reasons, the Court found that the decision of the Washington County Quorum Court was based on substantial evidence and that Smith’s motion for relief under the TCA should be denied.

Smith Communications, LLC v Washington County, 2014 WL 2450067 (WD Ark 6/2/2014)

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