The U.S. Supreme Court has leveled a blow to state and local governments that attempt to limit the expansion of wireless companies because they don’t like their towers. The decision upholds the requirements of the Telecommunications Act of 1996, which requires that companies whose zoning applications for cell towers are denied be provided with the reasons in writing in a timely fashion.
The decision, T-Mobile South vs. City of Roswell, Ga., sends T-Mobile’s appeal of a zoning decision denying permission to build a cell tower back to the circuit court. The lower court will be required to reconsider its decision now that the Supreme Court has overturned it. In turn, that means T-Mobile will have a chance for judicial review of the reasons for the denial.
This is important because zoning approvals are a significant problem for wireless companies. Normally, a tower requires that the local zoning board approve the construction, and it’s not at all uncommon for those zoning boards to deny approval for a variety of reasons that are contrary to the law. Making it clear that the reasons for denial must be provided in writing and in a timely manner means that wireless companies have the opportunity to appeal those decisions.
The Telecommunications Act limits the reasons zoning boards or other municipal or state bodies can deny the installation of a cell tower. For example, towers can’t be denied for health reasons if the radios installed on them meet FCC requirements. Likewise, they can’t be blocked for other reasons, including esthetics. In addition, if the governmental body does decide to deny permission to build a tower, they must provide reasons with specific evidence as to why.
“It’s good news for wireless carriers and wireless infrastructure,” said attorney Joseph Palmore, a partner at Morrison & Foerster, where he’s co-chair of the firm’s Supreme Court and Appellate group. “The court understood that the reason for the requirement is that the courts need something to review when denials are challenged.” He said that the requirement for written reasons provides a reasonable check on the actions of those local boards.
The decision allows local authorities to retain their authority over zoning, but places limits on what they can do in regards to wireless infrastructure, Palmore said. The idea here is to make sure that the denial is for permitted reasons. He noted that those reasons don’t include what’s frequently called the NIMBY, or not in my backyard, problem.
In some areas, including here in Washington, the NIMBY problem is so bad that entire heavily populated areas go without wireless service due to zoning challenges. The court’s decision would make those challenges easier to fight because the denials would have to make the actual reasons visible to whomever is trying to build the tower.
In the Roswell, Ga., case, the city provided the minutes of the city council meeting that included the discussion about the zoning prior to voting down the change. In that discussion, one of the city councilmen said that he was opposed because Roswell already had other wireless carriers, and this is not an approved reason for turning down the zoning request.
Supreme Court Wireless Decision Limits Municipal Zoning Actions
Other discussions during the meeting included one in which the council members decided that the artificial tree that T-Mobile was planning to use to hide the cell tower wasn’t attractive enough. This, too, is not an adequate reason for turning down the tower.
Many observers indicate that once T-Mobile gets to challenge the denial, the use of reasons that aren’t permissible will make the city’s arguments unlikely to succeed. The use of such an artificial tree was required by the city’s zoning code as one way to disguise the fact that it was a cell tower.
“T-Mobile is leading the charge on fairness and transparency in providing mobile wireless services to consumers,” a T-Mobile spokesperson told eWEEK in an email. “Mobile customers demand better voice and data services—and now local governments must explain their reasons when they deny a permit application to build or modify a cell site and provide those reasons to the applicant contemporaneously with the denial decision.”
The court decision requiring local authorities to provide substantial evidence in writing in a timely manner gives wireless companies a significant tool in fighting restrictions on wireless towers. Two of the most common complaints by opponents to such towers are that they’re afraid of the radio waves from the towers, and that they think they’re ugly and, because of that, will detract from real estate values.
While opponents can still make those arguments, zoning authorities can’t use such reasons in denying approval. However, there are times when denial is valid, and local boards can act on those. For example, a zoning board can issue a denial if a wireless company wants to put a tower in an historic area. Likewise, a board can issue a denial for safety reasons, as long as the safety reasons are backed by substantial evidence although general concerns about health risks from radio waves won’t make the cut.
“It’s a consequential decision,” Palmore said. “It will apply to countless zoning authorities.” The decision will also free up large numbers of applications for wireless infrastructure that are currently pending.