Posted by: Patricia Salkin | February 19, 2017

6th Cir. Court of Appeals Holds Residents May Not Bring Torts Claims Against Company for Construction of a Cell Tower under TCA

New Cingular Wireless, doing business as AT&T Mobility (“AT&T”), applied for a permit from the Lexington-Fayette Urban County Planning Commission to build a 125-foot cell-phone tower. Several Kentucky residents sued to stop the company from building the cell-phone tower near their homes, and alleged tort claims arising out of their beliefs that the tower would harm their health, devalue their properties, and emit excessive light and noise. The district court dismissed their claims and denied their request to amend their complaint.

On appeal, the residents first argued that the TCA neither expressly nor impliedly pre-empted their tort claims. The court determined, however, that allowing RF-emissions-based tort suits would impair the federal government’s ability to promote the TCA’s goals. The Residents requested discovery to find proof of whether AT&T’s proposed tower would exceed the FCC’s standards, but the court found that the Residents failed to allege facts in their complaint to support such a claim. Furthermore, the court held that approving this request would turn discovery into a fishing expedition.
As to AT&T’s argument that the Residents’ claims constituted an improper collateral attack on the Commission’s decision to approve the tower, the court found that while the Residents filed their administrative action on the last allowable day under the applicable 30-day statute, they failed to name the property owner of the land as a defendant – which the statute required for perfecting such an appeal. Moreover, the Residents failed to show that their harms arose from anything other than the Commission’s decision. Specifically, Residents’ tort claims relied entirely on alleged harms resulting from the Commission’s approval of the tower design and siting, and therefore Residents were merely attempting to attack the Commission’s decision through different means.
Lastly, the court found that the district court did not abuse its discretion in denying the Residents’ leave to amend. The court determined that once AT&T removed the case to federal court, the Residents could have amended the complaint as a matter of course during the 21 days after AT&T filed its motion to dismiss, moved for leave to amend after that period, or sought the written consent of AT&T. However, over the year that followed, from the removal to the district court’s issuance of its dismissal order, the Residents took none of those actions. The district court’s dismissal of Residents’ claims and leave to amend was therefore affirmed.
Robbins v New Cingular Wireless,  2017 WL 395978 (6th Cir CA 1/30/2017)

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