# Opposition Brief — Rancho Palos Verdes v. Abrams

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 113

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A03. Public record. Not legal advice.