The Supreme Court waded into Section 704 of the 1996 Telecommunications Act yesterday and released a decision concerning how and when a local government denies an application for a wireless facility.
In the case before the Court, T-Mobile sued Roswell, Georgia after it denied a tower application and sent a written denial letter after the hearing telling T-Mobile to read the transcript of the hearing if it wanted the reasons for the denial. The city then released the transcript of the meeting 26 days after the hearing.
As those astute readers know, the standard in Section 704 is that a denial “shall be in writing and supported by substantial evidence contained in a written record.” If an applicant doesn’t agree with a denial, they have to file suit within 30 days of the issuance of the denial to preserve their appeal rights.
After considering the facts and the law, the Supreme Court came to the following conclusion:
“Thus, we hold that the Act requires localities to provide reasons when they deny cell phone tower siting applications, but that the Act does not require localities to provide those reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. In this case, the City provided its reasons in writing and did so in the acceptable form of detailed minutes of the City Council meeting. The City, however, did not provide its written reasons essentially contemporaneously with its written denial. Instead, the City issued those detailed minutes 26 days after the date of the written denial and just 4 days before petitioner’s time to seek judicial review would have expired. The City therefore did not comply with its statutory obligations.”
So the takeaway from this is that IF you are going to deny an application, you should put your decision in writing, and provide the reasons for the denial, or if you are going to simply reference the hearing transcript, you need to make sure that transcript is available “essentially contemporaneously” with the denial letter. How long is that? Well, its not 26 days later. Would a week later be “essentially contemporaneous”? The Court doesn’t say.
Chief Justice Roberts and Justice Thomas dissent from the majority with, frankly, better reasoned construction of the statutory language. The majority imposes this new standard of “essentially contemporaneously” that isn’t found anywhere in Section 704. The dissenting justices argue that imposition of this new requirement, while not burdensome, could trip up smaller communities in the future, and is not necessary since it isn’t part of the statutory language.
Nevertheless, this is now the law of the land as interpreted by the Court, so you’ll need to take it into account when considering a denial of an application.
The full text of the Court’s opinion (and dissents) can be found here: