Fed. Dist Court of MS Grants Permanent Injunction Against City in Telecommunications Case

This post was authored by Matthew Loescher, Esq.

Alltel Corporation d/b/a Verizon Wireless brought suit for alleged violations of the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332(c)(7)(B), following the City of Jackson’s denial of an application to place a wireless communications facility, a cellular tower, near the intersection of Terry Road and Lakeshore Road in South Jackson in order to fill an alleged gap in cellular coverage. Verizon alleged that the City’s decision to deny Verizon permission to build a 150-foot-high monopole at the subject location violated the TCA because its decision was not supported by “substantial evidence,” 47 U.S.C. § 332(c)(7)(B)(iii). Verizon requested a permanent injunction ordering the City to approve its application and issue all approvals necessary to allow construction of the proposed cell tower.

 

The City argued that Verizon’s application was denied because the criteria set forth in the zoning ordinance relevant to a decision on granting a use permit were not satisfied. The court noted, however, that the City did not identify, either in its denial letter or at the hearing on Verizon’s application, any criteria that it had determined were not met. Instead, the denial letter simply recited, without explanation or elaboration, that “the City Council was of the opinion the criteria for granting the Use Permit had not been met.” The court held this denial did not satisfy the TCA’s substantial evidence requirement.

 

The record reflected that the petition presented to the City Council contained the signatures of twenty-one residents. However, the petition itself contained no information as to the basis for their collective opposition or for any individual’s objection; instead, it merely recited, “We the undersigned members of the Association of South Jackson Neighborhoods oppose the Special Exception for a wireless communication facility in the vacant field behind the property located at 196 Lakeshore Drive, Jackson, MS.” Additionally, no evidence was presented that Verizon’s proposed tower would be visible from any objecting resident’s home. Accordingly, the court granted Verizon’s motion for summary judgment and granted its request for a permanent injunction requiring the City of Jackson to grant its application for a use permit and to issue all approvals necessary to allow this construction.

 

Alltel Corp. d/b/a Verizon Wireless v City of Jackson, MS, 2020 WL 3086249 (S.D. MS 6/10/2020)