Posted by: Patricia Salkin | February 28, 2015

Fed. Dist. Court in GA Dismisses Telecommunications Claim For Failure to Challenge Within 30 Days

Athens Cellular, Inc., d/b/a Verizon Wireless (“Verizon”) claims that Oconee County, Georgia violated the Telecommunications Act of 1996 (“Act”), 47 U.S.C. §§ 332(c)(7)(B)(i)(II) and (iii), when it denied Verizon’s application to construct a cellular communications tower. Verizon filed the present action to overturn that denial fifty days after the oral denial of its permit application and forty-eight days after the written denial was placed in the clerk’s record book. Verizon claims that the denial violates the Telecommunications Act because it is not supported by substantial evidence contained in the written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii), and because it has the effect of prohibiting access to personal wireless services in violation of § 332(c)(7)(B)(i)(II). The County seeks dismissal of this action as untimely because it was not filed within thirty days of the County issuing a written decision, as required by the Act.

The Telecommunications Act states: “Any person adversely affected by any final action … by a State or local government … that is inconsistent with this subparagraph may, within 30 days after such action … commence an action in any court of competent jurisdiction.” Because Verizon failed to file the present action within thirty days of the Board’s “final action,” the Court must dismiss this action unless equitable tolling can save it. Equitable tolling is not appropriate, however, when the plaintiff does not file its action in a timely fashion despite knowing or being in a position reasonably to know that the limitations period is running. Although Verizon acknowledges that the written decision was in the clerk’s record book and the zoning department’s file prior to September 2, Verizon argues that it could not have possibly known that the written decision existed because neither the local ordinances nor the website explained this procedure. Despite this, if Verizon had further inquired into how it could receive a copy of that decision, the clerk’s office would have explained the record book and zoning department procedures. Accordingly, the court found equitable tolling did not apply and the case was dismissed as untimely.

Athens Cellular, Inc v Oconee County, 2015 WL 329217 (MD GA 1/26/2015)

The opinion can be accessed at: https://ecf.gamd.uscourts.gov/cgi-bin/show_public_doc?2014-00087-35-3-cv


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