Opposition Brief — Rancho Palos Verdes v. Abrams

CG) Supreme Court, U.S.

No. 03-1601 FILED

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

Ciry OF RANCHO PALOS VERDES, ef ail.,

Petitioners,

Vv.

MARK J. ABRAMS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

WILKIE CHEONG DAVID FINLEY WILLIAMS

CHEONG, DENOVE, ROWELL Counsel of Record

& BENNETT ROBERT T. LASKY

10100 Santa Monica Boulevard JONATHAN R. STONE

Suite 2460 APRIL OLIVER

Los Angeles, CA 90067 CADWALADER, WICKERSHAM

(310) 277-4857 & TAFT LLP

1201 F Street, N.W., Suite 1100

Washington, DC 20004

(202) 862-2200

CHRISTOPHER D. IMLAY

BOOTH, FRERET, IMLAY

& TEPPER, P.C.

14356 Cape May Road

Silver Spring, MD 20904

(301) 384-5525

Counsel for Respondent

EE a ET LT a TOE IE NITED

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether this Court should review the Ninth Circuit’s

holding that Petitioners failed to rebut the presumption in

favor of the availability of § 1983 monetary remedies to a

person deprived of federal rights guaranteed by the Tele-

communications Act of 1996, where the private right of

action in Section 332(c)(7)(B)(v) of the Act provides only for

a 30-day limitations period and a right to expedited judicial

review, and where the case is on remand to the district court

for a determination of the appropriate damages remedy?

(i)

TABLE OF CONTENTS

QUESTION PRESEN TED....ccccccscovsccsssecssoccssescssesscoscees

Oe ee GRR COIS MiB recerersevereccceseesssessecenesnsosceees

BRIEF FOR THE RESPONDENT IN OPPOSITION..

STATEMENT OF THE CASE .....ccccoccoscosssessscesesscesscees

REASONS FOR DENYING THE PETITION .............

I. THERE IS NO NEED FOR THIS COURT TO

DEPART FROM ITS USUAL PRACTICE

OF AWAITING A FINAL JUDGMENT .........

Il. THE CIRCUIT SPLIT DOES NOT WAR-

RANT THE GRANTING OF REVIEW AT

RR Ce icctcccndpecocesceqgesecsessessenvesscosnmennsessessees

Ill. THE DECISION BELOW IS PLAINLY

IV. PETITIONERS OVERSTATE THE NA-

TIONAL SIGNIFICANCE OF THIS CASE ....

SPP URAIITD ccntcsvscpantitverscenccsocacsveceenssncesseorsennsssescoonpne

Appendix A District Court Stay (dated April 16,

2004; filed April 19, 2004).............cccscssssrssssscsssoseseess

Appendix B_ Expedited Judicial Review of Section

332 District Court Cases Cited in the Petition...........

Appendix C Section 332 District Court Cases by

Pe i ictitishniinibindibnenindinneretinemsmnniiinnimen

(iii)

iv

TABLE OF AUTHORITIES

CASES . Page

Adamo Wrecking Co. v. United States, 434 U.S.

ig, ERI TH wr nnD UE OEE 17

American Constr. Co. v. Jacksonville, Tampa &

Key W. Ry. Co., 148 U.S. 372 (1893) cece. 10

AT&T Wireless PCS, Inc. v. City of Atlanta,

210 F.3d 1322, vacated, 223 F.3d 1324 (11th

Cir. 2000), op. reinstated, 250 F.3d 1307,

vacated on reh’g en banc 260 F.3d 1320 (11th

Is ae cinsenicniiesieciininiiailciaiaainlia adalat ities cass 8

Blessing v. Freestone, 520 U.S. 329 (1997)...4, 7, 13, 18-19

Brotherhood of Locomotive Firemen & Engine-

men v. Bangor & Aroostook R.R. Co., 389

i Ue MITT sitniieviniicnitesieiinneacisiatnidiblataciaiaiaiies 9

Bunting v. Mellen, 124 S. Ct. 1750 (2004)............ 13

City of Littleton v. Z.J. Gifts D-4, L.L.C., No. 02-

1609, 2004 U.S. LEXIS 4026 (June 7, 2004)... 17

City of Rancho Palos Verdes v. Abrams, 101 Cal.

App. 4th 367, 124 Cal. Rptr. 2d 80 (Ct. App.

nO nT SO TT Te eT TTT 4-5

Dickinson v. Petroleum Conversion Corp., 338

See ee IEE stcdiihiiisiienserinsnincsnsidtidisnlinibitiitapiemilias 10

Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S.

Ge niiiiniehintcinceninatipeiatineaitaasiiaa atin ll iat, 15

Freedman v. Maryland, 380 U.S. 51 (1965) ......... 17

FWIPBS Inc. v. City of Dallas, 493 U.S. 215

Gere iinscicisishicbititdinistintetinesinidlispaiiiidiialiitieanitial 17

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)......... 4, 16

Hanover Star Milling Co. v. Metcalf, 240 U.S.

Sa icciisiiniiciuilieahadiieietieiasanitalatiaathcenla aia, 1]

Keaukaha-Panaewa Cmty. Ass'n v. Hawaiian

Homes Comm'n, 739 F.2d 1467 (9th Cir.

V

TABLE OF AUTHORITIES—Continued

Page

Land v. Dollar, 330 U.S. 731 (1947)....ccccceseeeeeeees 10

LeBoeuf, Lamb, Greene & MacRae, L.L.P. v.

Worsham, 185 F.3d 61 (2d Cir. 1999)... 9

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737

Ori cecencesusseessnsncnniniucsanseconsnenepssannsacnsneoneveassens 9

Middlesex Cty. Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) ..ccccceeeeeeee 8, 18, 19

Nextel Partners Inc. v. Kingston Tp., 286 F.3d |

687 (3d Cir. 2002) ........ccccccccccccssesscccrrrrcresssseseees passim

PrimeCo Pers. Comms., Ltd. P’Ship vy. City of

Mequon, 352 F.3d 1147 (7th Cir. 2003).........++. passim

Smith v. Robinson, 468 U.S. 992 (1984) .....ecceeeeee 16, 18

United States v. General Motors Corp., 323 U.S.

SID CII cecescciescencstccsecsccsesnssessmsenenniessesnsnonsenes 10

Virginia Military Inst. v. United States, 508 U.S.

946 (1993) (Scalia, J., OP.)...cccceeseeeeeeeeeeeeeneeees 9, 10, 15

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498

CF ececenccccecsnnestenscsninneniesenianseenenenmennaitannentnn 16

Wright v. City of Roanoke Redev. & Hous. Auth.,

479 U.S. 418 (1987) .........cccsccsccresssreceereesssesssees 16

STATUTES AND OTHER AUTHORITIES

B2 UBL. © 1DGS .ceccceccccecccccsecescescsssescovscssccsssccnseses 3-4

47 U.S.C. § 332(C)(7)(B)(iii) ......sseesssceereeesreceennees 3

47 U.S.C. § 332(C)(T)(B)(V) ....seccceesrseeereeeserneeeeneens l

H.R. Rep. No. 104-204, pt. 1 (1995) ....cesseeeseeees 2

H.R. Conf. Rep. No. 104-458 (1996)... 3, 19

1 Dan B. Dobbs, Law of Remedies: Damages -

Equity - Restitution § 1.1 (2d ed. 1993)... 16

Robert L. Stern et al., Supreme Court Practice

(Babe ©6. BODZ)...ccccescocccvscevecsccesscssscccsscessessosscesees 9, 10, 11

IN THE

Supreme Court of the Anited States

No. 03-1601

CITY OF RANCHO PALOS VERDES, et al.,

Petitioners,

Vv.

MARK J. ABRAMS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

Section 704(c)(7)(B)(v) of the Telecommunications Act of

1996 (“TCA”), codified at 47 U.S.C. § 332(c)(7)(B)(v),

allows a person (here, Respondent Mark J. Abrams

(“Abrams”)) claiming a violation by a state or local govern-

ment of certain provisions of the TCA affecting wireless

communications facilities to file an action in court. The

statute requires filing “within 30 days” of the claimed viola-

tion, and further provides that the reviewing court “shall hear

and decide such action on an expedited basis.” /d. It says

nothing about damages, injunctions, attorneys fees or other

types of remedies. The United States Court of Appeals for

the Ninth Circuit—invoking the presumption repeatedly rec-

ognized by this Court in favor of the availability of remedies

under 42 U.S.C. § 1983 for violations of federal statutory

rights—held that the City of Rancho Palos Verdes failed to

overcome the presumption in its attempt to prove that Con-

gress intended to foreclose resort to § 1983 through creation

-

<

of a “comprehensive remedial scheme” in the TCA. Petition-

ers’ Appendix (“Pet. App.”) at 12a. The Ninth Circuit held,

accordingly, that Abrams was entitled to § 1983 damages and

remanded to the district court for further proceedings on that

issue. /d.

Respondent respectfully submits that this Court should not

grant review. As a threshold matter, there has been no final

judgment because this case is on remand for a determination

as to damages. No unusual circumstance is present to cause

this Court to depart from its general rule to stay its hand until

final judgment has been issued. The decisions from the Third

and Seventh Circuits relied upon by Petitioners do not

conflict with the decision below to nearly the degree Peti-

tioners assert, and in any event do not warrant the granting of

review. As for the merits, the Ninth Circuit’s decision is

entirely faithful to the language of the TCA, Congressional

intent and this Court’s precedents, and is plainly correct.

Finally, Petitioners’ assertion that this case presents a

question of pressing national importance is overstated and

unpersuasive.

STATEMENT OF THE CASE

In 1996, Congress amended the Communications Act of

1934, 47 U.S.C. § 151 et seq., by enacting the TCA for the

purpose of promoting competition, reducing monopolies, and

deregulating telecommunications. H.R. Rep. No. 104-204, pt.

1, at 65 (1995).' Concerned that zoning decisions by local

governments were unreasonably restricting the growth of

(and competition among) cellular telephone and other per-

sonal wireless services, Congress sought to strike a balance in

Section 704 of the TCA between preservation of local

authority over antenna tower siting and similar zoning issues,

'“The primary purpose [of the TCA] . . . is to increase competition in

telecommunications markets and to provide for an orderly transition from

a regulated market to a competitive and deregulated market.” /d. at 68.

3

and promotion of competitive telecommunications services.

Accordingly, in § 332(c)(7), captioned “Preservation of local

zoning authority,” Congress placed limits on, but did not

entirely preempt, the authority of local governments over the

construction and siting of wireless facilities.

Among other limitations, Congress required state and local

government decisions denying requests for land use permits

for wireless service facilities to be “in writing and supported

by substantial evidence contained in a written record.” 47

U.S.C. § 332(c)(7)(B)(iii). As an additional limitation on the

zoning authority of local governments, a persenal wireless

service provider claiming a violation of the requirements of

§ 332(c)(7)(B) may file suit in court under the expedited

review provisions of § 332(c)(7)(B)(v), subject to a 30-day

statute of limitations. As previously noted, the statute 1s

entirely silent as to the type or scope of remedy that

the reviewing court may consider as relief for proof of a

, . 2

violation.

As the Ninth Circuit observed, Pet. App. at 3a, § 1983 is a

remedial provision. It provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage .. . subjects, or causes to be

subjected, any citizen of the United States . . . to the

deprivation of any rights . . . secured by the Constitution

and laws, shall be liable to the party injured in an action

? A claimant may also petition the Federal Communications Commis-

sion (“FCC”) for relief under § 332(c)(7)(B)(v), but this administrative

remedy is restricted to claims that the challenged zoning decision ome

improperly based on alleged “environmental effects of radio frequency

emissions” under § 332(c)(7)(B)iv). The Conference Report discussing

§ 332 stressed the intent of Congress to foreclose all administrative

remedies for claimed violations of the TCA except in the limited circum-

stance of a claimed violation of clause (iv). H.R. Conf. Rep. No. 104-458,

at 208 (1996).

4

at law, suit in equity or other proper proceeding for

redress ....

42 U.S.C. § 1983. To obtain remedies pursuant to § 1983, a

plaintiff must first establish a federal “right.” Blessing v.

Freestone, 520 U.S. 329, 340 (1997). A plaintiff who

satisfies the initial burden of proving entitlement to a federal

Statutory right creates a rebuttable presumption of a right to

§ 1983 remedies. /d. at 341; Gonzaga Univ. v. Doe, 536 U.S.

273, 284 (2002). It is undisputed that the TCA grants

enforceable “rights.” Pet. App. at 4a. It is also undisputed

that the City has violated Abrams’ rights under the TCA?

Abrams is an amateur radio operator who is also engaged

professionally in the provision of personal wireless services

(which includes commercial, mobile radio services). His

amateur radio station is located at his residence within the

municipality of Petitioner Rancho Palos Verdes, California

(the “City”). Pet. App. at 2a, 22a-23a. He is licensed by the

FCC for both amateur operation and the provision of personal

wireless services. Pet. App. at 2a, 22a; Court of Appeals

Supplemental Excerpts of Record (“C.A. Supp. E.R.”) C.A.

Supp. E.R. at 008. Abrams’ home is located high on a

mountain ridge, a key location for receiving and sending

radio signals to the Los Angeles basin and other coastal areas.

C.A. Supp. E.R. at 010. For several years, Abrams and the

City have been engaged in various disputes regarding the

constriction and use of radio antennae on Abrams’ property.

See generally Certified Administrative Record (“Admin. R.”)

at 01-1678 (Vols. 1-6). These disputes resulted in litigation

in both the state and federal courts, in which Abrams’

position has been largely upheld. City of Rancho Palos

* The City initially filed an appeal from the district court’s holding

dated January 9, 2002, but withdrew that appeal after the Court of Appeals

of California, Second Appellate District issued its decision dated August

20, 2002 in City of Rancho Palos Verdes v. Abrams.

5

Verdes v. Abrams, 101 Cal. App. 4th 367, 370, 124 Cal. Rptr.

2d 80, 82 (Ct. App. 2002); Pet. App. at 24a.

In 1990, the City issued Abrams a permit to construct an

antenna on his property for his amateur use—that is, for

passive reception and retransmission of messages on

frequencies designated as “amateur.” Pet. App. at 22a, 54a.

Several years later, the City took exception to the height of

the antenna constructed by Abrams, and, in 1998, claimed for

the first time that Abrams was using his antenna for what the

City termed “commercial purposes” (i.e., use of frequencies

designated by the City as “commercial”) in violation of the

City’s permit. /d. at 54a. Abrams denied that the City had

any basis for its claims, asserting that the FCC had exclusive

authority to regulate the radio frequencies that his antenna

received and transmitted. Admin. R. at 340-49. In April

1999, the City initiated suit against Abrams in Los Angeles

Superior Court, which issued a preliminary injunction in

September 1999, and a permanent injunction in May 2001,

preventing Abrams from using his antenna for commercial

use unless and until he obtained a Conditional Use Permit

(“CUP”). Pet. App. at 23a, 55a.

Abrams appealed. On August 20, 2002, the Court of

Appeals of California, Second Appellate District, reversed the

Superior Court and overturned the injunction, holding that the

City’s claimed authority to regulate Abrams’ use of his

antenna for commercial purposes was preempted by the

FCC’s exclusive jurisdiction over radio communications and

its comprehensive licensing scheme. Abrams, 101 Cal. App.

4th at 370, 124 Cal. Rptr. at 82.

Although Abrams disputed the City’s claimed jurisdiction

over the commercial use of his wireless facilities, Abrams

nevertheless complied with the suggestion of the Superior

Court judge that he apply for a CUP as a means of resolving

the issue. Pet. App. at 23a. Abrams did so in July 1999,

shortly after the City filed its state court action. Admin. R. at

6

16-39. His application stressed that the addition of certain

radio frequencies (allowing use for commercial purposes) to

the amateur radio frequency allocations would not involve

any change, addition or modification whatsoever to the

existing antenna facilities, Abrams’ home, or the surrounding

area. /d. at 17-18. More than a year later, and after repeated

requests for additional information, in August 2000 the City

eventually denied Abrams’ CUP application. /d. at 43-46,

72-75, 101, 945-51; C.A. Supp. E.R. at 013.

On August 24, 2000—within the 30-day statute of limi-

tations specified in the TCA—Abrams filed this action in the

U.S. District Court for the Central District of California,

alleging that the City’s denial of his CUP application violated

the TCA. C.A. E.R. at 1-2. Abrams also claimed a right to

damages under 42 U.S.C. § 1983 and to attorneys fees under

42 U.S.C. § 1988. Jd. at 14-15. Approximately 17 months

later, in its order dated January 9, 2002, the district court

agreed with Abrams that the City had violated the TCA. The

court held that the City’s decision to reject Abrams’ CUP

application to add passive reception and retransmission of

certain radio frequencies via an existing, unmodified antenna

Structure was not supported by substantial evidence as

required by § 332(c)(7)(B)(iii). Pet. App. at 18a-26a. The

district court remanded the matter to the City Council,

ordering the City to grant Abrams a CUP subject to reason-

able conditions. /d. at 14a. In its Judgment of Injunction

dated March 18, 2002, the court denied Abrams’ request for

§ 1983 remedies, stating only that the TCA subsumed such

remedies. Pet. App. at I4a-15a. The court also denied

Abrams’ corresponding request for § 1988 relief. /d. at iSa.

Abrams appealed the issue of §§ 1983 and 1988 relief to

the Ninth Circuit. The City did not pursue an appeal of the

district court’s decision that the City had violated Abrams’

rights under the TCA. The Ninth Circuit reversed as to the

7

§ 1983 issue.’ Pet. App. at la-12a (T.G. Nelson, joined by

Kozinski, J. and the Hon. Jane A. Restani, U.S. Ct. of Int’l

Trade, by designation).

The Ninth Circuit began its analysis by stressing the

“rebuttable presumption” in favor of § 1983 remedies estab-

lished by this Court in Blessing. Pet. App. at 3a-4a. The

court then noted that it was undisputed that the TCA grants

enforceable “rights.” /d. at 4a. Thus, the court stated, the

only question was whether the City could overcome the

presumption that Abrams was entitled to § 1983 damages for

violation of his TCA rights by proving that Congress,

expressly or by implication, foreclosed § 1983 remedies. The

court found “no support” :n the language of the TCA that

Congress expressly foreclosed § 1983. /d. Therefore, the

court examined the next prong in the analysis required by

Blessing: whether Congress had impliedly foreclosed § 1983

remedies by creating a comprehensive remedial scheme in the

TCA that was incompatible with individual enforcement

under § 1983, thereby evincing Congress’ intent to “close the

door on § 1983 liability.” Jd. at 4a-Sa (quoting Blessing, 520

U.S. at 348). The court held that the City had not carried

its burden.

The Ninth Circuit held that “the statute grants no remedies

beyond procedural rights,” which “are insufficient for us to

conclude that the TCA contains a remedial scheme that closes

the door on § 1983 liability.” Pet. App. at 6a. The 30-day

limitation period, stated the court, is not a “remedy” in any

sense because it “imposes a burden on an aggrieved plaintiff,

not a benefit.” /d. at 8a. The only “benefit” identified in the

statute by the Ninth Circuit was expedited judicial review, but

the court found that to be a procedural mechanism that “does

‘The court stated that its holding made it unnecessary to address

Abrams’ argument that he was entitled to recover attorneys fees under

§ 1988 for a due process violation. Pet. App. at 12a n.49.

8

nothing to remedy a TCA violation in itself.” Jd. at 8a-9a.

The Ninth Circuit pointed out that: “Significantly, a court can

fully comply with all of the TCA’s provisions before it

determines liability. Thus, the TCA contains procedural,

rather than remedial, provisions.” /d. at 9a (emphasis in

original). The Ninth Circuit explained that the cases (see,

e.g., Middlesex County Sewerage Authority v. National Sea

Clammers Association, 453 U.S. 1 (1981)) in which courts

have found “that Congress implied its intent to foreclose

resort to § 1983 remedies presented remedial schemes more

comprehensive than, and thus distinguishable from, the

TCA.” Pet. App. at 6a.

The Ninth Circuit found no incompatibility between the

procedural mechanisms of the TCA and § 1983. Contrary to

the Petitioners’ repeated gross mischaracterization, Pet. at 24,

28, the Ninth Circuit did not rule that the 30-day limitations

period or expedited review provisions of the TCA would be

inapplicable to a TCA plaintiff claiming § 1983 damages. In

fact, the court held just the opposite: “Congress can limit the

time in which a plaintiff can file for relief, and require an

expeditious review in any court of competent jurisdiction,

without inadvertently limiting the plaintiff's remedies at the

same time.” Pet. App. at 9a.

Finally, the Ninth Circuit—like the Eleventh Circuit in

AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322,

vacated, 223 F.3d 1324 (11th Cir. 2000), op. reinstated, 250

F.3d 1307, vacated on reh’g én banc, 260 F.3d 1320 (11th

Cir. 2001) —reasoned that the savings clause in § 601(c)(1)

of the TCA forbidding the impairment of any federal “law”

affirmed Congress’ intent not to foreclose § 1983 remedies.

Pet. App. at 10a-12a. The Ninth Circuit—departing from the

Third Circuit’s reasoning in Nextel Partners Inc. v. Kingston

Township, 286 F.3d 687 (3d Cir. 2002)—concluded that the

City had failed to rebut the presumption in favor of § 1983

a

9

remedies and that the district court should award § 1983

damages, and remanded to the district court. /d. at 12a.

On April 16, 2004, the district court stayed all proceedings

based on the City’s representation that it would seek a writ

of certiorari. Respondent’s Appendix (“Resp. App.) at la.

Thus, the district court has not yet issued a final judgment on

damages.

REASONS FOR DENYING THE PETITION

I. THERE IS NO NEED FOR THIS COURT TO

DEPART FROM ITS USUAL PRACTICE OF

AWAITING A FINAL JUDGMENT

Because of the Ninth Circuit's remand to the district court

for a determination as to damages, the case before the Court

is not final, and thus the petition should be denied.” As a

general rule, this Court awaits final judgment in the lower

courts before exercising its certiorari jurisdiction. See, e.g.,

Virginia Military Inst. v. United States, 508 U.S. 946, 946

(1993) ((Scalia, J., op.) denying certiorari on grounds that

district court had not yet determined appropriate remedy as to

admission of women to men-only military college);

Brotherhood of Locomotive Firemen & Enginemen v. Bangor

& Aroostook R.R. Co., 389 U.S. 327, 328 (1967) (because

case was on remand for further consideration of issues of

contempt and imposition of fines, it was “not yet ripe for

review by this Court”); Robert L. Stern et al., Supreme Court

Practice § 4.18 at 258-61 (8th ed. 2002). The Court generally

stays its hand because review prior to final judgment may

* A judgment of liability prior to the award of damages or other relief is

plain y not final. See, e.g., Liberty Mut. Ins. Co. v. Weizel, 424 U.S. 737,

744 (1976) (judgment on liability not “final” within meaning of 28 U.S.C.

§ 1291 “where assessment of damages or awarding of other relief remains

to be resolved”); LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham,

185 F.3d 61, 64 (2d Cir. 1999).

10

prolong litigation unnecessarily and result in piecemeal

litigation. Dickinson v. Petroleum Conversion Corp., 338

U.S. 507, 511-12 (1950).

As Virginia Military Institute and Brotherhood illustrate,

the Court’s usual practice of awaiting final judgment prior to

review applies to cases in which the circuit court remanded to

the district court for further action related to remedies. Even

in Virginia Military Institute—a highly visible case involving

constitutional and cultural issues of unquestionable national

importance—the Court adhered to the general rule regarding

finality. In the opinion accompanying denial of the petition,

Justice Scalia stated:

This present petition . . . seeks our intervention before

the litigation below has come to final judgment. The

Court of Appeals . . . remanded the case to the District

Court for determination of an appropriate remedy. . . .

We generally await final judgment in the lower courts

before exercising our certiorari jurisdiction. . . . | think it

is prudent to take that course here.

508 U.S. at 946.

The Court on occasion grants certiorari in the absence of a

final judgment when “‘it is necessary to prevent extraordinary

inconvenience and embarrassment in the conduct of the

cause,” or if resolution of the issue is “‘fundamental to the

further conduct of the case.””’ Those exceptions are clearly

° Stern et al., supra, § 4.18 at 258 (citing American Constr. Co. vy.

Jacksonville, Tampa & Key W. Ry. Co., 148 U.S. 372, 384 (1893) for this

proposition).

” Land v. Dollar, 330 U.S. 731, 734 n.2 (1947) (quoting United States

v. General Motors Corp., 323 U.S. 373, 377 (1945)). For example, in’

General Motors, the Court found that it was fundamental to the further

conduct of the case to review a case on remand when the core issue

concerned the proper interpretation of the takings clause of the Fifth

Amendment. 323 U.S. at 377. Resolution of the meaning of “taken” and

“just compensation” was “fundamental” prior to further proceedings at

trial in the district court. /d.

not present here. This case is on remand to the district court

for a routine damages determination — a function squarely

within the province of the trial court. Moreover, the narrow

dispute over remedies, exclusively financial in nature, may

resolve itself without further judicial intervention. There is

simply no need for this Court to insert itself in this dispute

before the abstract question of a right to damages is expressed

in a concrete and final form.

The Court also, on occasion, agrees to review non-final

judgments when a circuit split is of sufficient importance to

warrant this Court’s departure from its general rule in favor of

finality.” As discussed below, that exception also does not

apply to this case and is not a sufficient reason for the Court

to grant certiorari here.

Il. THE CIRCUIT SPLIT DOES NOT WARRANT

THE GRANTING OF REVIEW AT THIS TIME

Petitioners have substantially overstated the depth and

breadth of the circuit split regarding the compatibility of

§ 1983 with the TCA.

In a strenuous effort to paint a picture of conflict between

the TCA and § 1983 when there is none, Petitioners grossly

mischaracterize the Ninth Circuit’s holding and draw a false

contrast between it and the Third Circuit’s opinion in Nextel.

After discussing the short limitations period and expedited

judicial review features of the TCA, Petitioners state: “The

Ninth Circuit’s decision to allow tower-siting claims to be

asserted under Section 1983—without required expedition

and subject to a four-year limitations period [-] fatally under-

mines that carefully crafted scheme.” Pet. at 24 (citations

omitted; emphasis supplied).’ Petitioners then quote from

*® Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 408-09 (1916);

Stern et al., supra, § 4.18 at 260.

* Petitioners repeat this characterization later in their brief to support

their argument that the Ninth Circuit's decision, if allowed to stand, will

12

Nextel to the effect that allowing a TCA plaintiff seeking

§ 1983 relief to bypass the limitations and judicial review

provisions of § 332(c)(7)(B)(v) would indeed be incompatible

with the TCA. /d. (quoting and discussing Nextel, 286 F.3d

at 695). But, as previously noted, the Ninth Circuit held

precisely the opposite—that a TCA plaintiff seeking § 1983

remedies would be subject to the 30-day limitation period and

would be entitled to expedited judicial review under the

TCA.'” The Ninth Circuit’s analysis in that regard was a

central reason why it found no conflict between the proce-

dural provisions of the TCA and the remedies available under

§ 1983. Pet. App. at 9a.'' A fortiori, the so-called “conflict”

that Petitioners attempt to create between the Third and Ninth

Circuits on this point is illusory.

open the floodgates to litigation: “And the lure of damages and attorney's

fees, as well as the ability to avoid the Communications Act's short

limitations period, all but guarantee that the resulting lawsuits will, absent

this Court's intervention, include Section 1983 claims with increasing

frequency.” Pet. at 28 (emphasis supplied).

’ It is instructive that, while Abrams complied with the 30-day filing

deadline in asserting his TCA and § 1983 claims in the district court

below, the plaintiff in Nextel did not. Nextel, 286 F.3d at 691.

'' The Ninth Circuit's full discussion of the point was as follows:

Second, the TCA’s provisions are compatible with § 1983's reme-

dies. As we said, the TCA’s provisions are procedural in nature—

not remedial. Congress can limit the time in which a plaintiff can

file for reli. , and require an expeditious review in any court of

competent jumsdiction, without inadvertently limiting the plaintiff's

remedies at the same time. Were we to consider the TCA’s proce-

dural provisions sufficiently comprehensive to foreclose § 1983

remedies, we would prevent Congress from ever providing statutes

of limitations or other procedural provisions without also defining

specific remedies. Such a holding would unnecessarily limit § 1983

remedies to those generic statutes that grant a right and nothing else.

We decline to take that path. The TCA’s procedural provisions are

compatible with § 1983's remedial provisions.

Pet. App. at 9a.

13

The conflict claimed by Petitioners between the Third and

Ninth Circuits is more apparent than real for another reason:

the statements in Nextel regarding the availability of § 1983

remedies to TCA plaintiffs are dicta. Before reaching the

§ 1983 issue, the Third Circuit first held that the appellant

(Nextel Partners Inc.) did not have an actionable claim

against the local government for violation of the TCA.”

Because appellant had not established a substantive TCA

violation entitling it to relief under any theory, there was no

reason for the Third Circuit to reach the § 1983 issue. That is

because, as previously discussed, a plaintiff claiming entitle-

ment to relief under § 1983 must first establish a violation of

his federal “rights.” Blessing, 520 U.S. at 340. Here, Abrams |

did that; in Nextel, appellant did not. To be sure, the Third

Circuit in Nextel characterized its pronouncements on the

interaction between § 1983 and the TCA as a “holding” (and

the Ninth Circuit below acquiesced in that characterization,

Pet. App. at 8a). But saying so does not make it so. Because

it was unnecessary for the Third Circuit to reach the § 1983

issue, its view on that subject is more properly characterized

as an advisory opinion. As this Court recently instructed:

“We sit, after all, not to correct errors in dicta; ‘[t}his Court

reviews judgments, not statements in opinions.’ Bunting v.

Mellen, 124 S. Ct. 1750, 1754 (2004) (citation omitted).

In its analysis of the TCA’s savings clause, the Ninth

Circuit cited with approval the Eleventh Circuit’s vacated

opinion in AT&T Wireless PCS. Petitioners argue that the

Eleventh Circuit case is further evidence of the split in the

circuits. Pet. at 19. However, because that decision has been

vacated, it is not binding, lessening the circuit split. This

'2 The court ruled that, because Nextel Partners had not applied for a

building permit, there had been no “failure to act” by the local gov-

ernment triggering a violation of § 332(c)(7)(B)(v). The court held, in the

alternative, that the TCA claim was moot because the municipal ordinance

in question had been amended. 286 F.3d at 692-93.

14

leaves only two binding circuit opinions in apparent conflict

on the narrow issue at bar, the Ninth-Circuit’s and that of

the Seventh Circuit. PrimeCo Pers. Comms., Ltd. P’ Ship

v. City of Mequon, 352 F.3d 1147 (7th Cir. 2003)

(“Verizon Wireless’).

The Seventh Circuit’s decision does not create the type of

conflict requiring resolution by this Court. First, it relies on

the dicta of the Third Circuit’s decision in Nextel. Id. at

1152. Second, its focus was on the availability of attorneys

fees under § 1988 (not § 1983 damages as in the decision

below) and associated implications for the “American rule”

against award of fees to the prevailing party—an issue not

considered by the Ninth Circuit nor raised by the parties

below. In this regard, the court made plain that Verizon was

seeking an extremely broad holding on the general avail-

ability of such fees that the Ninth Circuit’s analysis would not

support: “Verizon wants us to hold that any time Congress

creates a right that is enforceable against state or local

officials or agencies, section 1983, and its companion, section

1988, come in the door and the American rule goes out the

window.” /d. The court was also motivated by a public

policy concern regarding corporate largesse inapplicable to a

case, as here, involving an individual. /d. In sum, the circuit

split is of less moment than Petitioners claim.

Petitioners also point to a split in views at the district court

level, but this factor, in Respondent’s view, counsels in favor

of denying review. Allowing other courts and circuits to

consider the issue, in a variety of factual situations, might

lead to a resolution of the split—or, alternatively, to a more

clear-cut consensus as to just what the issues are.'? Of

'* See, e.g., Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (“Though the

importance and novelty of the question presented by this certiorari

petition are sufficient to warrant review by this Court, those factors also

provide a principled basis for postponing consideration of the issue until

after it has been addressed by other courts”).

15

course, a denial of review at this stage does not preclude

Petitioners from raising the issue after final judgment.

Virginia Military Inst., 508 U.S. at 946.

A final consideration—suggested by language in Peti-

tioners’ own brief as well as by the Seventh Circuit’s opinion

in Verizon Wireless—counsels against granting review in this

case. Quoting Franklin v. Gwinnett County Public Schools,

503 U.S. 60, 70-71 (1992), Petitioners point out that “federal

courts adjudicating claims under statutes that create a cause

of action but are silent about remedies are presumed to ‘have

the power to award any appropriate relief.’” Pet. at 22.

Similarly, the Seventh Circuit observed in Verizon Wireless

that “a conferral [of a right to sue to enforce the TCA]

is presumed to entitle a successful piaintiff to the usual

remedies . . . which include damages as well as injunctive

relief.” 352 F.3d at 1152-53 (citation omitted).'* If, as

Petitioners imply and the Seventh Circuit ruled, damages are

available directly under § 332(c)(7)(B)(v) of the TCA, it is of

less than urgent importance for this Court to resolve a circuit

split on whether damages are also available via § 1983.

Il. THE DECISION BELOW IS PLAINLY

CORRECT

Review in this case is also unnecessary because the Ninth

Circuit’s decision is plainly correct and presents a far more

persuasive analysis of the interaction between § 1983 and the

TCA than the decisions of the Third and Seventh Circuits.

There is no dispute that the burden lies with the City to

overcome the rebuttable presumption in favor of Abrams’

'* The Third Circuit in Nextel declined to decide the question of

whether damages are directly available under the TCA. 286 F.3d at 695

n.6. No circuit court of appeals other than the Seventh Circuit has ad-

dressed that issue, which is another reason why this Court should stay its

hand pending further development of the case law in the lower courts.

16

entitlement to § 1983 relief. On this score, the Third and

Ninth Circuits are in agreement. See Nextel, 286 F.3d at 694;

Pet. App. at 3a-4a; see also Gonzaga Univ., 536 U.S. at 284.

This Court has cautioned that “[wJe do not lightly conclude

that Congress intended to preclude reliance on § 1983 as a

remedy for the deprivation of a federally secured right.”

Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S.

418, 423-24 (1987) (quoting Smith vy. Robinson, 468 U.S.

992, 1012 (1984)); Wilder v. Virginia Hosp. Ass'n, 496 U.S.

498, 520 (1990). The presumption has been characterized as

weighty, requiring a “strong government showing of

Congressional intent to foreclose alternative remedies before

ruling out a section 1983 claim.” Keaukaha-Panaewa Cmty.

Ass'n v. Hawaiian Homes Comm'n, 739 F.2d 1467, 1471 (9th

Cir. 1984).

There can likewise be no dispute that § 332(c)(7)(B)(v) of

the TCA does not, on its face, provide for damages,

injunctive relief, attorneys fees or the other forms of relief

that are universally considered “remedial” in nature. Thus,

Petitioners’ attack on the decision below is based on the

argument that a right to file in court, a right to expedited

judicial review, and a severely abbreviated limitations period

constitute a “comprehensive remedial scheme” sufficient to

overcome the presumption in favor of § 1983. Petitioners are

wrong. As the Ninth Circuit correctly held, this is a

procedural scheme that is fulfilled before the issue of

“remedy” is even reached.'°

The 30-day limitations period requires only the briefest of

discussion. Even Petitioners do not take issue with the Ninth

Circuit’s conclusion that a short limitations period, which

“imposes a burden on an aggrieved plaintiff, not a benefit,” is

'S “Procedural law deals with process of getting from right to remedy.

... For most purposes . . . remedies questions and remedies law are quite

distinct from both substance and procedure.” | Dan B. Dobbs, Law of

Remedies: Damages - Equity - Restitution § 1.1 at 2 (2d ed. 1993).

17

not a remedy. Pet. App. at 8a. Therefore, Petitioners’ argu-

ment rests on the notion that a right to seek judicial review o

n an expedited basis is a “comprehensive remedial scheme”

trumping the presumption in favor of § 1983. But, as the

Ninth Circuit persuasively concluded, “an expedited decision

does nothing to remedy a TCA violation in itself.” /d. at 8a-

9a. The Ninth Circuit’s characterization of this right as

procedural is nothing new. This Court, for example, routinely

frames the mechanisms of filing deadlines and expedited

judicial review as procedures, not remedies. Last month

Justice Breyer explained that “ordinary court procedural

rules and practices . . . provide-reviewing courts with judicial

tools sufficient to avoid delay-related First Amendment harm.

Indeed, where necessary, courts may arrange their schedules

to ‘accelerate’ proceedings.” City of Littleton v. Z.J. Gifts D-

4, L.L.C., No. 02-1609, 2004 U.S. LEXIS 4026, at *3 (June 7,

2004) (emphasis supplied). Other decisions of this Court are

to the same effect. See, e.g., FW/PBS Inc. v. City of Dallas,

493 U.S. 215, 223 (1990) (describing expedited judicial

review as a “procedural safeguard”); Freedman v. Maryland,

380 U.S. 51, 59-60 (1965) (describing expedited judicial

review as a “procedural safeguard’); see also Adamo

Wrecking Co. v. United States, 434 U.S. 275, 284-85 (1978)

(describing filing deadline imposed by statute as a “review

procedure”). '°

Petitioners’ argument that a statutory right to expedited

judicial review is “remedial” is further undercut by the dis-

cretion retained by the trial court in interpreting and

implementing that right, as illustrated by the actual amount of

'° The legislative history cited by Petitioners, Pet. at 22, cuts against,

not in favor of, their argument. The.Conference report states that

Congress intended § 332(c)(7)(BX(v) to “‘provide[] a mechanism for

judicial relief."” /d. (citation omitted). “Mechanism” plainly implies that

expedited judicial review is procedural, i.e., only a means to obtain an

end, and not the ultimate relief itself.

18

time it takes for TCA litigants to obtain a decision from the

courts. A review of the district court TCA cases cited by

Petitioners reveals that the average time from filing to

receiving a district court decision was approximately 10

months, with several languishing for more than a year."

Resp. App. at 2a-5a. Indeed, Abrams’ case below took 17

months to decide in the district court—hardly an example of a

swift resolution. C.A. E.R. at 1, 116.

Petitioners’ argument is hurt, not helped as they claim (Pet.

at 22), by the two cases in which this Court has determined

that a statutory scheme is sufficiently comprehensive to

preclude § 1983 remedies. Sea Clammers, 453 U.S. at 20;

Robinson, 468 U.S. at 1009. The Ninth Circuit discussed Sea

Clammers at some length. Pet. App. at 6a. In Sea Clammers,

this Court stated that the statutes at issue had “unusually

elaborate enforcement provisions” allowing for civil penal-

ties, litigation costs, injunctive relief, and suspensions or

revocations. 453 U.S. at 13-15.'* In marked contrast,

§ 332(c)(7)(B)(v) specifies none of those remedies.

In Robinson, the Court emphasized the “carefully tailored”

administrative scheme in the relevant statute, which provided

extensive local and state agency relief, followed by judicial

review. /d. at 1009-11. However, in § 332(c)(7) of the TCA,

Congress eliminated all administrative remedies except for

the extremely limited right to petition the FCC regarding

adverse health effects under clause (iv).'" Where such

'’ Yiis statistic does not encompass time elapsed during appeals and

remands.

' The Seventh Circuit in Verizon Wireless (relied upon so heavily by

Petitioners for other purposes) agreed that Sea Clammers “is distin-

guishable because the [TCA] is silent on remedies beyond merely

conferring a right to sue to enforce the Act.” 352 F.3d at 1152.

'’ The legislative history made clear Congress’ intent to restrict nearly

all such relevant administrative remedies. “It is the intent of the conferees

that other than under section 332(c\7\B)iv) of the Communications Act

19

elaborate and detailed administrative schemes do not exist,

the Court has declined to hold that a statute precludes

enforcement via § 1983. Blessing, 520 U.S. at 347-48.

Finally, the Ninth Circuit’s analysis of the TCA’s savings

clause, which it interpreted to affirm Congress’ intent to

preserve § 1983 remedies and which it found more sweeping

than the savings clauses addressed in Sea Clammers, Pet.

App. at 10a-12a, is persuasive and provides no basis for

questioning the decision. Petitioners cite a collection of

provisions from other parts of the Communications Act and

the TCA—none targeting wireless communications—spec-

ifying various remedies such as criminal and civil fines,

prison terms, damages, and attorneys fees in support of their

argument that Congress “provided precisely the remedies it

considered appropriate . . . and supplant{ed] any remedy that

otherwise would be available under § 1983” for violations of

the statute. Pet. at 21-22 (quoting Sea Clammers, 453 U.S. at

14-15, 20-21). Far from supporting Petitioners’ argument,

the cited provisions undermine it. First, they list specific

remedies such as damages and penalties, in contrast to the

unrelated provisions of § 332(c)(7)(B)(v) relating to wireless

communications. Second, all of the remedies cited by

Petitioners are police power functions or provide for private

redress in situations where non-governmental persons violate

the statute. Section 1983 on its face is inapplicable to non-

governmental violations. Congress had to specify remedies

in the statute itself to address such matters as prohibitions on

telefax spamming (§ 227(b)(1)(C), (3)) and internet commu-

nications harmful to minors (§ 231). In stark contrast,

§ 332(c)(7) provides a private right of action for violations of

of 1934 as amenaed . . . the courts shall have exclusive jurisdiction over

all other disputes arising under this section. Any pending Commission

rulemaking concerning the preemption of local zoning authority over the

placement, construction or modification of CMS facilities should be

terminated.” H.R. Conf. Rep. No. 104-458, at 208.

20

the TCA by the government—thereby implicating § 1983.

Especially in light of the TCA’s savings clause, the overall

Statutory scheme is entirely consistent with the Ninth

Circuit’s holding that Congress did not intend § 332(c)(7)

(B)(v) to supplant the governmental-injury damages pro-

visions of § 1983.

IV. PETITIONERS OVERSTATE THE NATIONAL

SIGNIFICANCE OF THIS CASE

The case before the Court is not important enough to

warrant granting a writ of certiorari, especially in the face of

the Court’s general practice against review of cases that are

not final. Contrary to Petitioners’ contention that “the federal

courts are awash with Section 332(c)(7) disputes,” Pet. at 26,

litigation has dwindled to a mere trickle. An analysis of the

17 federal cases cited by the Petition (id. n.7) illustrates the

point. Fourteen of these cases were originally filed in the

1990s, when the TCA—enacted in 1996—was new and

relatively untested. Resp. App. at 7a-13a. Only three were

filed after the year 2000. A more thorough analysis of all

reported § 332(c)(7) cases demonstrates that there has been a

steep decline in the number of such cases filed in federal

district court. In 1997, the year after the TCA was enacted, at

least 38 Section 332(c)(7) cases were filed. By contrast, less

than 10 were filed in 2003. /d. at 17a-18a.

This sharp decline is due to the effectiveness of the TCA.

Local governments and telecommunications providers now

increasingly work together to avoid disputes under the TCA.

“A survey by the American Planning Association, for

example, showed that 92 percent of applications for cellular

towers were approved by local governments, most within 60

days.” Admin. R. at 1054. Rather than turning to the courts,

local governments and providers have learned to compromise

to accommodate both the needs of providers and the pref-

erences of local communities. See id. at 1057-59. Notably,

21

swift review of such applications is consistent with Congress’

core intent in enacting the TCA—the establishment of a

seamless, nationwide wireless network. Likewise, the avail-

ability of a damages remedy is consistent with Congress’

purpose in enacting the TCA of promoting competition and

placing limits on local regulation.

Petitioners advance various other reasons why this Court

should take this case, having nothing to do with these parties

or the Ninth Circuit’s holding. For example, they argue that

certiorari should be granted because § 332(c)(7) plaintiffs

“are [typically] large telecommunications companies’” faced

off against “‘smal!, rural municipalities’” that are not in a

good position to defend themselves.” Pet. at 15-16 (citations

omitted). Petitioners are describing the parties to another

case—not this one. They also assert that “the ability to avoid

the [TCA’s] short limitations period” is an important factor

virtually ensuring a flood of new litigation. /d. at 28.

However, as previously discussed, the Ninth Circuit clearly

held that a TCA plaintiff asserting § 1983 damage claims

would have to file within the 30-day limitations period

prescribed in the TCA—just as Abrams did here.

eee

’ The Third Circuit (in a case involving Nextel) and the Seventh Cir-

cuit (in a case involving Verizon) made the same point. Nextel, 286 F.3d

at 695; Verizon Wireless, 352 F.3d at 1152.

22

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

WILKIE CHEONG DAVID FINLEY WILLIAMS

CHEONG, DENOVE, ROWELL Counsel of Record

& BENNETT ROBERT T. LASKY

19100 Santa Monica Boulevard JONATHAN R. STONE

Suite-2460 APRIL OLIVER

Los Angeles, CA 90067 CADWALADER, WICKERSHAM

(310) 277-4857 & TAFT LLP

1201 F Street, N.W., Suite 1100

Washington, D.C. 20004

(202) 862-2200

CHRISTOPHER D. IMLAY

BOOTH, FRERET, IMLAY

& TEPPER, P.C.

14356 Cape May Road

Silver Spring, MD 20904

(301) 384-5525

Counsel for Respondent

July 1, 2004

la

APPENDIX A

UNITED STATES DISTRICT COURT

~ CENTRAL DISTRICT OF CALIFORNIA

[Filed Apr 19 2004]

Case No.C V00-907 1-SVW(RNBx)

MARK J. ABRAMS

Vs.

CITY OF RANCHO PALOS VERDES, et al.

CIVIL MINUTES—GENERAL

Present: The Honorable Stephen V. Wilson, U.S. District

Judge

Paul M, Cruz N/A N/A

Deputy Clerk Court Reporter/Recorder Tape No.

ATTORNEYS PRESENT FOR PLAINTIFFS: N/A

ATTORNEYS PRESENT FOR DEFENDANTS: N/A

PROCEEDINGS: IN CHAMBERS

Because the Ninth Circuit’s ruling in Abrams v. City of

‘Rancho Palos Verdes, 354 F.3d 1094 (9th Cir. 2004), has

created a split in authority between the Ninth Circuit and the

Third and Seventh Circuits and because Defendant City of

Rancho Palos Verdes accordingly anticipates filing a Petition

for a Writ of Certiorari with the United States Supreme Court,

the Court hereby stays all proceedings in this matter until the

Supreme Court has acted on the City’s petition.

APPENDIX B

Expedited Judicial Review of Section 332

2a

District Court Cases Cited in the Petition

The following list of cases appears in the order they were

cited in the Petition.

District Court Cases

Abrams v. City of Rancho

Palos Verdes, No. 00-CV-

09071 (C.D. Cal. 2002)

Sprint Spectrum, L.P. v. Town

of Ogunquit, 175 F. Supp. 2d

77 (D. Me. 2001)

AT &T Wireless PCS, Inc. v.

City of Atlanta, 50 F. Supp. 2d

1352 (N.D. Ga. 1999),

vacated, 210 F.3d 1322,

vacated, 223 F.3d 1324 (11th

Cir. 2000), op. reinstated, 250

F.3d 1307, vacated on reh'g en

banc, 260 F.3d 1320 (11th Cir.

2001)

Nextel Comms. of Mid-

Atlantic, Inc. v. Town of

Randolph, Mass., 193 F. Supp.

2d 311 (D. Mass. 2002)

National Telecomm. Advisors,

Inc. v. City of Chicopee, 16 F.

Supp. 2d 117 (D. Mass. 1998)

CIS Comms., L.L.C. v. County

of Jefferson, Mo., 222 F. Supp.

2d 1148 (E.D. Mo. 2002)

Nextel Partners, Inc. v. Town

of Amherst, N_Y., 251 F. Supp.

2d 1187 (W.D.N.Y. 2003)

File Date

8/24/2000

5/22/2001

4/1/1998

12/13/2000

10/15/1997

7/23/2001

9/19/2002

Decision

Date

1/9/2002

12/12/2001

6/14/1999

3/20/2002

8/11/1998

10/17/2002

3/4/2003

15

10

mos.

District Court Cases

Omnipoint Holdings, Inc. v.

Town of Westford, 206 F.

Supp. 2d 166 (D. Mass. 2002)

APT Minneapolis, Inc. v.

Stillwater Tp., No. 00-2500

JRT/FLN, 2001 WL 1640069

(D. Minn. June 22, 2001)

SBA Comms., Inc. v. Zoning

Comm'n of Brookfield, 96 F.

Supp. 2d 139 (D. Conn. 2000)

Smart SMR of N.Y., Inc. v.

Zoning Comm'n of Stratford,

995 F. Supp. 52 (D. Conn

1998)

Cellco P'ship v. Town Plan &

Zoning Comm'n of

Farmington, 3 F. Supp. 2d 178

(D. Conn. 1998)

Sprint Spectrum L.P. v. Town

of Easton, 982 F. Supp. 47 (D.

Mass. 1997)

Nextel Comms. of Mid-

Atlantic, Inc. v. Town of

Hanson, 311 F. Supp. 2d 142

(D. Mass. 2004)

APT Minneapolis, Inc. v. City

of Maplewood, No. CIV. 97-

2082, 1998 WL 634224 (D.

Minn. Aug. 12, 1998)

Century Cellunet of S. Mich.,

Inc. v. City of Ferrysburg, 993

F. Supp. 1072 (W.D. Mich.

1997)

3a

File Date

7/19/2001

11/13/2000

1/4/2000

6/30/1997

10/8/1997

2/11/1997

12/19/2003

9/15/1997

12/6/1996

Decision

Date

6/17/2002

6/22/2001

5/1/2000

2/17/1998

4/13/1998

10/6/1997

3/26/2004

8/12/1998

11/10/1997

7 mos.

4 mos.

6 mos.

3 mos.

District Court Cases

PrimeCo Pers. Comms. Lid.

P'ship v. Lake Cty., Fla., No.

97-208-CIV-OC-10B, 1998

WL 565036 (M.D. Fla. July

20, 1998)

Sprint Spectrum L.P. v.

Jefferson Cty., 968 F. Supp.

1457 (N.D. Ala. 1997)

BellSouth Mobility Inc. v.

Gwinnett Cty., Ga., 944 F.

Supp. 923 (N.D. Ga. 1996)

AT & T Wireless Servs. of Fla.,

Inc. v. Orange Cty., 982 F.

Supp. 856 (M.D. Fla. 1997)

Omnipoint Comms. MB

Operations, LLC v. Town of

Lincoln, 107 F. Supp. 2d 108

(D. Mass. 2000)

National Tower, LLC v. Frey,

164 F. Supp. 2d 185 (D. Mass.

2001), aff'd sub nom. National

Tower, LLC v. Plainville

Zoning Bd. of Apps., 297 F.3d

14 (1st Cir. 2002)

Cellular Tel. Co. v. Zoning Bd.

of Adj. of Ho-Ho-Kus, 24 F.

Supp. 2d 359 (D.N.J. 1998),

aff'd in part, rev'd in part, 197

F.3d 64 (3d Cir. 1999)

Virginia Metronet Inc. v.

Board of Sup'rs of James City

Cty., Va., 984 F. Supp. 966

(E.D. Va. 1998)

4a

File Date

6/27/1997

6/10/1997

5/21/1996

12/12/1996

5/11/1999

11/20/2000

7/7/1997

7/22/1997

Decision

Date

7/20/1998

7/31/1997

8/13/1996

11/14/1997

8/2/2000

9/12/2001

10/28/1998

1/15/1998

Time

IS%

6 mos.

District Court Cases

Omanipoint Corp. v. Zoning

Hr'g Bd. of Pine Grove Tp., 20

F. Supp. 2d 875 (E.D. Pa.

1998), aff'd, 181 F.3d 403 (3d

Cir. 1999)

Illinois RSA No. 3, Inc. v.

County of Peoria, 963 F. Supp.

732 (C.D. Ill. 1997)

PrimeCo Pers. Comms., L.P. v.

Village of Fox Lake, 26 F.

Supp. 2d 1052 (N.D. Ill. 1998)

American Towers, Inc. v.

Williams, 146 F. Supp. 2d 27

(D.D.C. 2001), aff'd, 50 Fed.

Appx. 448 (D.C. Cir. 2002)

Sa

File Date

11/19/1997

7/3/1996

11/18/1997

10/11/2000

Decision

Date

9/16/1998

4/28/1997

11/19/1998

6/14/2001

Mean:

6a

APPENDIX C

Section 332 District Court Cases By Year of Filing

40 38

1996 1997 1998 1999 2000 2001 2002 2003

Year

The district court cases listed in this chart were selected

following a Lexis and Westlaw searches for opinions in

which a district or appellate court discussed the role of

Section 332 in resolving the dispute. Filing dates were

determined using a combination of Lexis, Westlaw and Pacer.

Ta

Section 332 District Court Cases Per Year

1996 Cases (7 total):

AT & T Wireless Servs. of Fla., Inc. v. Orange Cty., 982 F.

Supp. 856 (M.D. Fla. 1997)

BellSouth Mobility Inc. v. Gwinnett Cty., Ga., 944 F. Supp.

923 (N.D. Ga. 1996)

Century Cellunet of S. Mich., Inc.v. City of Ferrysburg, 993

F. Supp. 1072 (W.D. Mich. 1997)

Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp.

732 (C.D. Ill. 1997)

In re Appeal of Freeman, 975 F. Supp. 570 (D. Vt. 1997),

aff'd as modified sub nom. Freeman v. Burlington

Broadcasters, Inc., 204 F.3d 311 (2d Cir.), cert. denied,

531 U.S. 917 (2000)

Seattle SMSA Ltd. P’ship v. San Juan Cty., 88 F. Supp. 2d

1128 (W.D. Wash. 1997)

Western PCS Il Corp. v. Extraterritorial Zoning Auth. of

Santa Fe, 957 F. Supp. 1230 (D.N.M. 1997)

1997 Cases (38 total):

APT Minneapolis, Inc. v. City of Maplewood, No. CIV. 97-

2082, 1998 WL 634224 (D. Minn. Aug. 12, 1998)

APT Tampa/Orlando, Inc. v. Orange Cty. & Bd. of

Comm'rs, No. 97-891-CIV-ORL-22, 1997 WL 33320573

(M.D. Fla. Dec. 10, 1997)

AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 979

F. Supp. 416 (E.D. Va. 1997), aff'd in part, rev'd in part,

155 F.3d 423 (4th Cir. 1998)

AT&T Wireless PCS, Inc. v. City of Chamblee, 10 F. Supp.

2d 1326 (N.D. Ga. 1997)

AT & T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of

Adj., 11 F. Supp. 2d 760 (M.D.N.C. 1998), aff'd in part,

rev'd in part, 172 F.3d 307 (4th Cir. 1999)

Bell Atl. Mobile v. Zoning Bd. of Butler Tp., 138 F. Supp. 2d

668 (W.D. Pa. 2001)

8a

Cellco P’ship v. Town Plan & Zoning Comm'n of

Farmington, 3 F. Supp. 2d 178 (D. Conn. 1998)

Cellular Tel. Co. v. Board of Adj. of Paramus, 37 F. Supp.

2d 638 (D.N.J.), aff'd, 191 F.3d 444 (3d Cir. 1999)

Cellular Tel. Co. v. Town of Oyster Bay, No. 97-CV-641,

1998 U.S. Dist. LEXIS 21500 (E.D.N.Y. June 17, 1998),

aff'd in part, rev'd in part, 155 F.3d 490 (2d Cir. 1999)

Cellular Tel. Co. v. Zoning Bd. of Adj. of Harrington Park,

90 F. Supp. 2d 557 (D.N.J. 2000)

Cellular Tel. Co. v. Zoning Bd. of Adj. of Ho-Ho-Kus, 24 F.

Supp. 2d 359 (D.N.J. 1998), aff'd in part, rev'd in part,

197 F.3d 64 (3d Cir. 1999)

Flynn v. Burman, 30 F. Supp. 2d 68 (D. Mass. 1998)

Gearon & Co. v. Fulton Cty., Ga., 5 F. Supp. 2d 1351 (N.D.

Ga. 1998)

GTE Mobilnet v. Pierce Tp., No. C-1-97-501, 1998 U.S.

Dist. LEXIS 22007 (S.D. Ohio Nov. 6, 1998)

National Telecomm. Advisors, Inc. v. City of Chicopee, 16 F.

Supp. 2d 117 (D. Mass. 1998)

Omnipoint Comms. Enters., Inc. v. Town of Amherst, N.H.,

74 F. Supp. 2d 109 (D.N.H. 1998), vacated, 173 F.3d 9

(1st Cir. 1999)

Omnipoint Comms., Inc. v. City of Scranton, 36 F. Supp. 2d

222 (M.D. Pa. 1999)

Omnipoint Comms., Inc. v. Foster Tp., 46 F. Supp. 2d 396

(M.D. Pa. 1999)

Omnipoint Comms., Inc. v. Penn Forest Tp., 42 F. Supp. 2d

493 (M.D. Pa. 1999)

Omnipoint Comms., Inc. v. Zoning Hr’g Bd. of E. Pennsboro

Tp., Cumberland Cty., Pa., 4 F. Supp. 2d 366 (M.D. Pa.

1998)

Omnipoint Corp. v. Zoning Hr'g Bd. of Pine Grove Tp., 20

F. Supp. 2d 875 (E.D. Pa. 1998), aff'd, 181 F.3d 403 (3d

Cir. 1999)

OPM-USA-Inc. v. Board of Cty. Comm'rs of Brevard Cty.,

Fla., 7 F. Supp. 2d 1316 (M.D. Fla. 1997)

9a

OPM-USA-Inc. v. County of Marion, Fla., No. 97-290-CIV-

OC-10B, 1999 WL 1427699 (M.D. Fla. Sept. 30, 1999)

PrimeCo Pers. Comms., Ltd. P’ship v. Lake Cty., Fla., No.

97-208-CIV-OC-10B, 1998 WL 565036 (M.D. Fla. July

20, 1998)

PrimeCo Pers. Comms., L.P. v. Village of Fox Lake, 26 F.

Supp. 2d 1052 (N.D. Ill. 1998)

Smart SMR of N.Y., Inc. v. Zoning Comm'n of Stratford, 995

F. Supp. 52 (D. Conn. 1998)

SNET Cellular, Inc. v. Angell, 99 F. Supp. 2d 190 (D.R.L

2000) 7

Southwestern Bell Wireless, Inc. v. Board of Cty. Comm'rs

of Johnson Cty., Kan., 17 F. Supp. 2d 1221 (D. Kan.

1998), aff'd, 199 F.3d 1185 (10th Cir. 1999), cert. denied,

530 U.S. 1204 (2000)

Sprint Spectrum, L.P. v. Board of Cty. of Comm'rs of

Jefferson Cty., Colo., 59 F. Supp. 2d 1101 (D. Colo.

1999)

Sprint Spectrum L.P. v. City of Woburn, 8 F. Supp. 2d 118

(D. Mass. 1998)

Sprint Spectrum L.P. v. Jefferson Cty., 968 F. Supp. 1457

(N.D. Ala. 1997)

Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47 (D.

Mass. 1997)

Sprint Spectrum L.P. v. Town of Farmington, No. 97-CV-

863, 1997 WL 631104 (D. Conn. Oct. 6, 1997)

Sprint Spectrum, L.P. v. Town of N. Stonington, 12 F. Supp.

2d 247 (D. Conn. 1998)

Sprint Spectrum, L.P. v. Willoth, 996 F. Supp. 253

(W.D.N.Y. 1998), aff'd, 176 F.3d 630 (2d Cir. 1999)

Sprint Spectrum, L.P. v. Zoning Hr’g Bd. of E. Nottingham

Tp., No. 97-1837, 1997 WL 688816 (E.D. Pa. Oct. 15,

1997)

U S WEST Comms., Inc. v. City of Vadnais Heights, No. 97-

2248, 1998 U.S. Dist. LEXIS 22962 (D. Minn. May 15,

1998)

10a

Virginia Metronet v. Board of Sup’rs of James City Cty.,

Va., 984 F. Supp. 966 (E.D. Va. 1998)

1998 Cases (29 total):

360 [Degrees] Comms. Co. v. Board of Sup’rs of

Albermarle Cty., 50 F. Supp. 2d 551 (W.D. Va. 1999),

rev'd, 211 F.3d 79 (4th Cir. 2000)

Aegerter v. City of Delafield, Wis., No. 98-C-192, 1998 WL

1057733 (E.D. Wis. May 5, 1998), aff'd, 174 F.3d 886

(7th Cir. 1999)

APT Pittsburgh Ltd. P’ship v. Lower Yoder Tp., Cambria

Cty., 111 F. Supp. 2d 664 (W.D. Pa. 2000)

APT Pittsburgh Ltd. P’ship v. Penn Tp., Butler Cty., Pa., 32

F. Supp. 2d 793 (W.D. Pa. 1998), rev'd, 196 F.3d 469 (3d

Cir. 1999)

AT & T Wireless PCS, Inc. v. City of Atlanta, 50 F. Supp. 2d

1352 (N.D. Ga. 1999), vacated, 210 F.3d 1322, vacated,

223 F.3d 1324 (11th Cir. 2000), op. reinstated, 250 F.3d

1307, vacated on reh'g en banc, 260 F.3d 1320 (11th Cir.

2001)

Barnhill v. City of Fairhope, No. CIV. A. 98-0270-P-S,

1998 U.S. Dist. LEXIS 14056 (S.D. Ala. July 17, 1998)

BellSouth Mobility, Inc. v. Miami-Dade Cty., 153 F. Supp.

2d 1345 (S.D. Fla. 2001)

BellSouth Mobility, Inc. v. Parish of Plaquemines, La., 40 F.

Supp. 2d 372 (E.D. La. 1999)

Cellco P’ship v. Hess, No. CIV. A. 98-3985, 1999 WL

178364 (E.D. Pa. Mar. 30, 1999)

Cellco P’ship v. Russell, No. 1:98CV23, 1998 U.S. Dist.

LEXIS 11639 (W.D.N.C. June 23, 1998), vacated, 187

F.3d 628 (4th Cir. 1999)

Cellco P’ship v. Town of Douglas, 81 F. Supp. 2d 170 (D.

Mass. 1999)

Corkery v. Town of Canton, No. 98-10054-MEL, 1998 U.S.

Dist. LEXIS 23332 (D. Mass. July 13, 1998)

Group EMF, Inc. v. Coweta Cty., 50 F. Supp. 2d 13384N.D.

Ga. 1999)

lowa Wireless Servs., L.P. v. City of Moline, Ill., 29 F. Supp.

2d 915 (C.D. Ill. 1998)

Lucas v. Planning Bd. of LaGrange, 7 F. Supp. 2d 310

(S.D.N.Y. 1998)

National Telecomm. Advisors, LLC v. Board of Selectmen of

W. Stockbridge, 27 F. Supp. 2d 284 (D. Mass. 1998)

Nextel W. Corp. v. Unity Tp., No. 98-CV-01258 (W.D. Pa.

Jan. 20, 1999), rev'd, 282 F.3d 257 (3d Cir. 2002)

Omnipoint Comms. Enters., L.P. v. Charlestown Tp., No.

98-CV-6563, 2000 U.S. Dist. LEXIS 866 (E.D. Pa. Jan.

21, 2000)

Omnipoint Comms. Enters., L.P. v. Newtown Tp., No. CIV.

A. 98-5171, 1999 WL 269936 (E.D. Pa. Apr. 29, 1999),

aff'd in part, vacated in part, 219 F.3d 240 (3d Cir.), cert.

denied, 531 U.S. 985 (2000)

Omnipoint Comms. Enters., L.P. v. Warrington Tp., 63 F.

Supp. 2d 658 (E.D. Pa. 1999)

Omnipoint Comms., Inc. v. Planning & Zoning Comm'n of

Wallingford, 83 F. Supp. 2d 306 (D. Conn. 2000)

Petersburg Cellular P’ship v. Board of Sup’rs of Nottoway

Cty., 29 F. Supp. 2d 701 (E.D. Va. 1998), rev'd, 205 F.3d

688 (4th Cir. 2000)

Southwestern Bell Mobile Sys. v. Todd, No. 98-CV-11959

(D. Mass. Nov. 23, 1999), aff'd, 244 F.3d 51 (lst Cir.

2001)

SprintCom, Inc. v. City of Cumming, No. 2:98-CV-95-WCO,

1998 U.S. Dist. LEXIS 18523 (N.D. Ga. Sept. 21, 1998)

SprintCom, Inc. v. Village of Mundelein, No. 98 C 4451,

1999 WL 652032 (N.D. Ill. Aug. 20, 1998)

Sprint Spectrum L.P. v. Connecticut Siting Council, No. 98-

—~CV-00033 (D. Conn. Jan. 8, 1998), aff'd, 274 F.3d 674

(2d Cir. 2001)

Sprint Spectrum L.P. v. Zoning Hr’g Bd. of Williston Tp., 43

F, Supp. 2d 534 (E.D. Pa. 1999)

12a

Telespectrum, Inc. v. Public Serv. Comm'n of Ky., 43 F.

Supp. 2d 755 (E.D. Ky. 1999), aff'd, 227 F.3d 414 (6th

Cir. 2000)

Western PCS BTA Corp.v. Town of Steilacoom, No. C98-

5664RJB, 1999 U.S. Dist. LEXIS 9068 (W.D. Wash. Apr.

20, 1999)

1999 Cases (17 total):

Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158

(S.D. Cal. 2000)

APT Minneapolis, Inc. v. Eau Clair Cty., 80 F. Supp. 2d

1014 (W.D. Wis. 1999)

AT & T Wireless PCS, Inc. v. Town of Porter, 203 F. Supp.

2d 985 (N.D. Ind. 2002)

Brehmer v. Planning Bd. of Wellfleet, No. 99-CV-11169-

RGS (D. Mass. Aug. 12, 1999), aff'd, 238 F.3d 117 (Ist

Cir. 2001)

Bressette v. Planning & Zoning Comm'n of N. Stonington,

SBA, Inc., 158 F. Supp. 2d 209 (D. Conn. 2001)

Industrial Comms. & Elec., Inc. v. Town of Falmouth, Nos.

Civ. 98-397-P-H, 99-96-P-H, 2000 WL 761002 (D. Me.

May 9, 2000)

Nextel Partners of Upstate N.Y., Inc. v. Town of Canaan, 62

F. Supp. 2d 691 (N.D.N.Y. 1999)

Omnipoint Comms. Inc. v. Comi, 233 F. Supp. 2d 388

(N.D.N.Y. 2002)

Omnipoint Comms., Inc. v. Port Auth. of N.Y. & N.J., No. 99

CIV. 0060, 1999 WL 494120 (S.D.N.Y. July 13, 1999)

Omnipoint Comms. Enters., L.P. v. Township of Nether

Providence, 232 F. Supp. 2d 430 (E.D. Pa. 2002)

Omnipoint Comms., Inc. v. Village of Muttontown, No. CV

99-1155, 1999 U.S. Dist. LEXIS 23004 (E.D.N.Y. June

15, 1999)

Omnipoint Comms. MB Operations, LLC v. Town of

Lincoln, 107 F. Supp. 2d 108 (D. Mass. 2000)

13a

Patterson v. Omnipoint Comms., Inc., 122 F. Supp. 2d 222

(D. Mass. 2000), aff'd, 23 Fed. Appx. 17 (1st Cir. 2001)

Powertel, Inc. v. Clark Cty., Ind. Bd. of Zoning Apps., No.

NA 99-0193-C H/S, 2000 WL 1206702 (S.D. Ind. Aug.

14, 2000)

Sprint Spectrum L.P. v. Mills, 124 F. Supp. 2d 211

(S.D.N.Y. 1999), aff'd in part, vacated in part, rev'd in

part, 283 F.3d 404 (2d Cir. 2002)

Telecorp Realty, LLC v. Town of Edgartown, 81 F. Supp. 2d

257 (D. Mass. 2000)

Vertical Broad., Inc. v. Town of Southampton, 84 F. Supp.

2d 379 (E.D.N.Y. 2000)

2000 Cases (25 total):

Abrams v. City of Rancho Palos Verdes, No. 00-CV-09071

(C.D. Cal. July 19, 2002), rev'd, 354 F.3d 1094 (9th Cir),

petition for cert. filed (U.S. May 25, 2004) (No. 03-1601)

American Towers, Inc. v. Williams, 146 F. Supp. 2d 27

(D.D.C. 2001), aff'd, 50 Fed. Appx. 448 (D.C. Cir. 2002)

APT Minneapolis, Inc. v. Stillwater Tp., No. 00-2500

JRT/FLN, 2001 WL 1640069 (D. Minn. June 22, 2001)

ATC Realty, LLC v. Town of Kingston, N.H., 173 F. Supp.

2d 118 (D.N.H. 2001), rev’d, 303 F.3d 91 (1st Cir. 2002)

Laurence Wolf Capital Mgmt. Trust v. City of Ferndale, 128

F. Supp. 2d 441 (E.D. Mich. 2001), aff'd in part, rev'd in

part, 61 Fed. Appx. 204 (6th Cir. 2003)

Maher v. Hyde, No. 00-CV-11326-REK (D. Mass. Nov. 15,

2000), appeal dismissed, 272 F.3d 83 (ist Cir. 2001)

National Tower, LLC v. Frey, 164 F. Supp. 2d 185 (D.

Mass. 2001), aff'd sub nom. National Tower, LLC vy.

— Zoning Bd. of Apps., 297 F.3d 14 (lst Cir.

002)

New Par v. City of Saginaw, 161 F. Supp. 2d 759 (E.D.

on 2001), aff'd but criticized, 301 F.3d 390 (6th Cir.

l4a

New York SMSA Ltd. P’ship v. Town of Clarkstown, 99 F.

Supp. 2d 381 (S.D.N.Y. 2000)

New York SMSA Ltd. P’ship v. Town of Riverhead Town

Bd., 118 F. Supp. 2d 333 (E.D.N.Y. 2000), aff'd, 45 Fed.

Appx. 24 (2d Cir. 2002)

Nextel Comms. of Mid-Atlantic, Inc. v. City of Margate, No.

00-CV-05137 (D.N.J. Sept. 26, 2002), vacated, 305 F.3d

188 (3d Cir. 2002)

Nextel Comms. of Mid-Atlantic, Inc. v. Manchester-by-the-

Sea, 115 F. Supp. 2d 65 (D. Mass. 2000)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of Milford, No.

00-CV-11576-GAO, 2001 U.S. Dist. LEXIS 18323 (D.

Mass. Aug. 2, 2001)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of Randolph,

Mass., 193 F. Supp. 2d 311 (D. Mass. 2002)

Nextel Partners, Inc. v. Kingston Tp., No. 99-CV-02097

(M.D. Pa. July 25, 2000), aff'd, 286 F.3d 687 (3d Cir.

2002)

Omnipoint Comms., Inc. v. Planning & Zoning Comm'n of

Guilford, 156 F. Supp. 2d 212 (D. Conn. 2001)

Pennsylvania Cellular Tel. Corp. v. Zoning Hr’g Bd. Buck

Tp., 127 F. Supp. 2d 635 (M.D. Pa. 2001)

Preferred Sites, LLC v. Troup Cty., No. 00-CV-00081 (N.D.

Ga. July 11, 2000), aff'd, 296 F.3d 1210 (11th Cir. 2002)

SBA Comms., Inc. v. Zoning Comm'n of Brookfield, 112 F.

Supp. 2d 233 (D. Conn. 2000)

Second Gen. Props., L.P. v. Town of Pelham, No. CIV. 00-

090-B, 2002 WL 1018923 (D.N.H. May 21, 2001), aff'd

but criticized, 313 F.3d 620 (ist Cir. 2002)

SiteTech Grp. Ltd. v. Board of Zoning Apps. of Brookhaven,

140 F. Supp. 2d 255 (E.D.N.Y. 2001)

Sprint Spectrum L.P. v. Charter Tp. of W. Bloomfield, 141 F.

Supp. 2d 795 (E.D. Mich. 2001)

Tower Ventures v. City of Westfield, No. 00-CV-30196-

MAP (D. Mass. Nov. 26, 2001), aff'd, 296 F.3d 43 (Ist

Cir. 2002)

15a

USCOC of N.H. RSA #2 v. Town of Hopkinton, N.H., 137 F.

Supp. 2d 9 (D.N.H. 2001)

USCOC of Okla. RSA #10 Inc. v. Board of Adj., No. CIV-

00-354-S, 2001 U.S. Dist. LEXIS 25373 (E.D. Okla. Jan.

5, 2001)

2001 Cases (28 total):

American Cellular Network, LLC v. Upper Dublin Tp., 203

F. Supp. 2d 383 (E.D. Pa. 2002)

ATC Realty, LLC v. Town of Sutton, N.H., No. CV-01-046-

M, 2002 WL 467132 (D.N.H. Mar. 7, 2002)

AT & T Wireless Servs. of Cal. LLC v. City of Carlsbad, 308

F. Supp. 2d 1148 (S.D. Cal.-2003)

Benjamina Nursery Farm, Inc. v. Miami-Dade Cty., 170 F.

Supp. 2d 1246 (S.D. Fla. 2001)

CIS Comms., L.L.C. v. County of Jefferson, Mo., 222 F.

Supp. 2d 1148 (E.D. Mo. 2002)

Connecticut Architectural Towers, L.L.C. v. Town of

Monroe Zoning Comm'n, No. 3:01CV186, 2001 WL

1829114 (D. Conn. July 23, 2001)

Cox Comms. PCS, L.P. v. City of San Marcos, 204 F. Supp.

2d 1272 (S.D. Cal. 2002)

Crown Atl. Co. LLC v. Town of Fitzwilliam, No. 01-210-M,

2002 WL 1072286 (D.N.H. May 30, 2002)

Crown Castle Atl., LLC v. Board of Sup’rs of Loudon Cty.,

No. 01-526-A, 2002 U.S. Dist. LEXIS 22000 (E.D. Va.

Jan. 14, 2002)

Mason v. O’Brien, No. 1:01-CV-1556, 2002 WL 31972190

(N.D.N.Y. Sept. 30, 2002)

MIOP, Inc. v. City of Grand Rapids, 175 F. Supp. 2d 952

(W.D. Mich. 2001)

Network Towers, LLC v. Town of Hagerstown, No. IP 01-

1833-CH/K, 2002 WL 1364156 (S.D. Ind. May 15, 2002)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of Sudbury,

Mass., No. CIV. A. 01-11754-DPW, 2003 WL 543383

(D. Mass. Feb. 26, 2003)

16a

Omnipoint Comms., Inc. v. City of White Plains, 175 F.

Supp. 2d 697 (S.D.N.Y. 2001)

Omnipoint Comms., Inc. v. Common Council of Peekskill,

202 F. Supp. 2d 210 (S.D.N.Y. 2002)

Omnipoint Holdings, Inc. v. City of Southfield, 203 F. Supp.

2d 804 (E.D. Mich. 2002), aff'd, 355 F.3d 601(6th Cir.

2004)

Omnipoint Holdings, Inc. v. Town of Westford, 206 F. Supp.

2d 166 (D. Mass. 2002)

Pinney v. Nokia (In re Wireless Tel. Radio Frequency

Emissions Prods. Liab. Litig.), 216 F. Supp. 2d 474 (D.

Md. 2002)

PrimeCo Pers. Comms., Ltd. P’ship v. City of Mequon, 242

F. Supp. 2d 567 (E.D. Wis.), aff'd, 352 F.3d 1147 (7th

Cir. 2003)

Schiazza v. Zoning Hr’g Bd. of Fairview Tp., York Cty., Pa.,

168 F. Supp. 2d 361 (M.D. Pa. 2001)

Sprint Spectrum, L.P. v. Board of. Zoning Apps. of

Brookhaven, 244 F. Supp. 2d 108 (E.D.N.Y. 2003)

Sprint Spectrum L.P., v. Parish of Plaquemines, No. CIV. A.

01-0520, 2003 WL 193456 (E.D. La. Jan. 28, 2003)

Sprint Spectrum L.P. v. Town of Ogunquit, 175 F. Supp. 2d

77 (D. Me. 2001)

Telecorp Realty, L.L.C. v. Board of Adj. of Story Cty., No.

CIV. 4-01-CV-10369, 2001 WL 1678736 (S.D. lowa

Nov. 20, 2001)

United States Cellular Tel. of Greater Tulsa L.L.C. v. Tulsa

City Bd. of Adj., No. 01-CV-0531-EA, 2001 U.S. Dist.

LEXIS 25370 (N.D. Okla. Dec. 20, 2001)

United States Cellular Tel. of Greater Tulsa L.L.C. v. City of

Broken Arrow, No. 01-CV-518-E, 2002 U.S. Dist. LEXIS

26654 (N.D. Okla. Oct. 2, 2002), aff'd in part, rev'd in

part, 340 F.3d 1122 (10th Cir. 2003)

United States Cellular Corp. v. City of Wichita Falls, Tex.,

No. CIV. A. 7:01-CV-162-R, 2003 WL 21246125 (N.D.

Tex. Apr. 21, 2003), aff'd, 364 F.3d 250 (Sth Cir. 2004)

17a

VoiceStream Minneapolis, Inc. v. St. Croix Cty., 212 F.

Supp. 2d 914 (W.D. Wis. 2002), aff'd, 342 F.3d 818 (7th

Cir. 2003)

2002 Cases (10 total):

Independent Wireless One Corp. v. Town of Charlotte, 242

F. Supp. 2d 409 (D. Vt. 2003)

MetroPCS, Inc. v. City & Cty. of San Francisco, 259 F.

Supp. 2d 1004 (N.D. Cal. 2003)

Nextel Comms. of Mid-Atlantic, Inc. v. City of Cambridge,

246 F. Supp. 2d 118 (D. Mass. 2003)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of

Provincetown, No. CIV. A. 02-11646-DPW, 2003 WL

21497159 (D. Mass. June 26, 2003)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of Wayland,

Mass., 231 F. Supp. 2d 396 (D. Mass. 2002)

Nextel Partners, Inc. v. Town of Amherst, N.Y., 251 F. Supp.

2d 1187 (W.D.N.Y. 2003)

Sprint Spectrum, L.P. vy. City of Carmel, Ind., No.

102CV01133JDTTAB, 2003 WL 21254443 (S.D. Ind.

Mar. 28, 2002), aff'd, 361 F.3d 998 (7th Cir. 2004)

Tennessee ex rel. Wireless Income Props., LLC v. City of

Chattanooga, No. 1:02-CV-372, 2603 U.S. Dist. LEXIS

22103 (E.D. Tenn. Oct. 20, 2003)

Tower Asset Sub, Inc. v. McHenry Cty. Conserv. Dist., No.

02 C 5147, 2002 WL 31375502 (N.D. Ill. Oct. 21, 2002)

USCOC of Va. RSA #3, Inc. v. Montgomery Cty. Bd. of

Sup ’rs, 245 F. Supp. 2d 817 (W.D. Va.), aff'd in part,

rev'd in part, 343 F.3d 262 (4th Cir. 2003)

2003 Cases (6 total):

Livingstone v. Adler, Nos. CIV. A. 03-1934-DPW, -11935-

DPW, 2004 WL 438927 (D. Mass. Mar. 10, 2004)

Nextel Comms. of Mid-Atlantic, Inc. v. Town of Hanson, 311

F. Supp. 2d 142 (D. Mass. 2004)

18a

Omnipoint Comms., Inc. v. Village of Tarrytown Planning

Bd., 302 F. Supp. 2d 205 (S.D.N.Y. 2004)

Russell’s Garden Ctr., Inc. v. Nextel Comms. of Mid-

Atlantic, Inc., 296 F. Supp. 2d 13 (D. Mass. 2003)

USOC of Greater Iowa, Inc. v. City of Bellevue, Neb., 279 F.

Supp. 2d 1080 (D. Neb. 2003)

Voice Stream PCS I, LLC v. City of Hillsboro, 301 F. Supp.

2d 1251 (D. Or. 2004)