Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

No. 03-1601

* DEC 17 o9

IN THE

Supreme Court of the United States

CITY OF RANCHO PALOS VERDES, et ai.,

Petitioners,

v.

MARK J. ABRAMS,

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE NINTH CIRCUIT

BrieF Or THe CELLULAR TELECOMMUNICATIONS & INTERNET

AssociaTIon (“CTIA”) As Amicus CuRIAE

In Support Or RESPONDENT

—-— ——_— —_—_—— — — re — —---—

——_———_—_— — eee —=- —- ——

MICHAEL ALTSCHUL ANDREW G. McBrIDE

CELLULAR TELECOMMUNICATIONS Counsel of Record

& INTERNET ASSOCIATION Hewat C. WALKER

1409 16th Street, N.W., Suite600 |= KatTHRYN ComMERFORD Topp

Washington, D.C. 20036 JosHUA S. TURNER

(202) 785-0081 Wirey Rei & Fietpinc LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

Counsel for Amicus Curiae

191612

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................008: iii

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Summary of Argument ..........cccccccsccccces 7

DIE. siccnsiecidinee vesceceeadets 8

I. Petitioners Cannot Overcome The Strong

Presumption In Favor Of The Availability Of

PES. 00.046 dionecabvadawenes 8

A. Petitioners’ Attempt To Conjure Up a

“Comprehensive Remedial Scheme”

under this Court’s Precedents Borders

GR GO FUDPUEOUED. 20 occ cccccccsccecses 9

B. Nothing in § 332(c)(7) Is Incompatible

with the Judicial Remedies Made

Available by § 1983. ................. 19

C. Petitioners’ Argument that § 332(c)(7)

Incorporates or Emulates Local Zoning

CARD TO GGCHOUE. cc ccccccccncescesens 22

II. Section 1983 Remedies Are A Necessary Tool

To Proiect Wireless Licensees’ Federai

BAB. ccncccccvedsscccssseccasagesensse 25

A. Section 1983 Remedies Are Necessary

To Make Some Licensees Whole. ..... 25

Contents

Page

B. Section 1983 Suits Are Necessary To

Effectuate Federal Policy and Rein In

Egregious Misconduct. .............. 26

TT SocceReseeeesesescceceececevecnccces 29

—

TABLE OF CITED AUTHORITIES

Page

Cases

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

210 F.3d 1322 (2000), vacated on other grounds,

SEED ov cee cestsnsccccescccenss 11, 18

Abrams v. City of Rancho Palos Verdes,

354 F.3d 1094 (9th Cir. 2004) ..............0... 10

BellSouth Mobility Inc., v. Gwinnett County,

944 F. Supp. 923 (N.D. Ga. 1996) .............. 5

Blessing v. Freestone,

EE aietcvderstvccseccesceneess 9,10

Franklin v. Gwinnett County Public Schools,

PP We PORTED oc sccccecccccncccsese: 13, 14, 15, 19

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ................085. 17

Golden State Transit Corp. v. City of Los Angeles,

ACRE s Rothe dnendeeseenece 17

Gonzaga University v. Doe,

Pe PE PO ED ov vec cncccccccecccecs 10, 14, 18, 19

Jones v. R.R. Donnelly & Sons Co.,

SEEN Ss PEPE Sav cescdcnseccccccesences 20

Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson,

SEE sche cuswassencssnescuae 21

Louisiana Public Service Commission v. FCC,

476 U.S. 35S (1986) .... 2. cee cceccccececceens 3

1v

Cited Authorities

Page

Livadas v. Bradshaw,

PE OT EE enc vekececeicineseneasncen 10, 13

Maine v. Thiboutot,

GP BEE Kon diccnccsesccrusseseieenet 8,9, 17

Middlesex County Sewerage Authority

v. National Sea Clammers Association,

Se CED bas edduescnesbescddsecasues passim

Morton v. Mancari,

Sr a I 666686068 ckd ds ccedividis 14

McCulloch v. Maryland,

17 US. (4 Wheat.) 316 (1819) .............ee5e 17

National Tower, LLC

v. Plainville Zoning Board of Appeals,

a Se ee 23

Nextel v. Town of Randolph

193 F. Supp. 2d 311 (D. Mass. 2002) ............ 25

Nextel Partners, Inc. v. Kingston Township,

BO FG GR7 GG CU. BOGE 6 ccs ccncsccccccsccss 15

Nextel Partners, Inc. v. Town of Amherst,

251 F. Supp. 2d 1187 (W.D.N.Y. 2003) .......... 28

NYNEX Mobile Communications Co.

v. Hazlet Township Zoning Board,

648 A.2d 724 (N.J. Sup. Ct. App. Div. 1994) .... 5

Omnipoint Communications, Inc.

v. City of White Plains,

175 F. Supp. 2d 697 (S.D.N.Y. 2001) ............ 25, 28

Cited Authorities

Omnipoint Communications, Inc.

v. Village of Tarrytown,

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

Omnipoint Communications MB Operations, LLC

v. Town of Lincoln,

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

Omnipoint Holdings, Inc. v. Town of Westford,

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

PrimeCo Personal Communications, L.P.

v. City of Mequon,

Fee Fe AEF CFU GIR. BOO ccc cccccsececveses

Smart SMR of New York

v. Zoning Commission of the Town of Stratford,

9 F. Supp. 2d 143 (D. Conn. 1998) .............

Smith v. Robinson,

Be Ie PED ho ed bedsccescncecescsesce

Telespectrum, Inc. v. Public Service Commission,

227 F.3d 414 (6th Cir. 2000) ............ 0. eee

Thompson v. Thompson,

Se Se SPT + Keke cccccesesseseneccesses

Town of Amherst v. Omnipoint Communications,

173 FOG D9 (hat Cae. TIFF) onc ccccccccsccccvcces

Voicestream Minneapolis, Inc. v. St. Croix County,

342 F.3d 818 (7th Cir. 2003) ............ 00 ee eee

Weston v. Charleston,

27 US. 2 Pat.) G69 (IBRD)... cc cccsccsccccccces

passim

27

14

23

23

17

vi

Cited Authorities

Page

Wilder v. Virginia Hospital Association,

TIO UD Gee GED 6 cc ecccccvesecvsessccensess 13,14

Wilson v. Garcia,

GE UB. BOR CITED ccc cccecccccecesedssasvsuss 20, 21

Wright v. City of Roanoke Redevelopment

and Housing Authority,

SFP UE Gao AG ove ceccccssccccesvvssvneses 9

Statutes and Regulations:

Be es Gp PEED sc cccccesncavacnaseneestes 10

Be es BOGS hoes cescscesevepeccanwccsnsetres 13

| PETTITT TES TT TT TUTTI eT TTT ere 20, 21

y fie toe pe | PPPPTTTTTETT TTT eee 13

42 USC. § ISRGRIAMISMA) «2. oc ccsvccvcccvcceces 10

GRUB. BTIGE oc cccccvccesvecccesscvscssvesecs 10

42 UB. BITES cc cccicccscccccesccsccccucuvess passim

GRU BA GRE sc ccvcceccvcecsicesstseveseses 10

OF es Te NED 66d 05 000 00c0neseescbesecdns 11

BA, BUD ccc ccvctcecsvsnccesesesesdnene 3

FF UK, GE 0 voce ccvccccccetsacnsiess 3

SF Wis DOD oka 5 8 680s cccasvedvcccossens passim

vil

Cited Authorities

Page

OF Gs PIED Soccccccesccvscicsceteses 23

OF ee POPPED esas rccsice secsecescecees 18, 23

GF UB. GSR PID os ccccccesccscceveces 7, 24

47 US.C. § 332(c)(7)(B)(I)(TI) sw... ce eee cece 7,23

MP Os ED Sid sncvcnvccescseccas 7

GF UA, FOR NE occ cccccccccccesesesss 7

OF Wes TID oc ce cccccccesecscesess 7,24

G7 UBL. GB FEAICN TMT) oo cc cccccccvcvcccsccce passim

FF ED 00 ch6p50cbcncedccntincvewees 14

OF OE 5 SNS Kb 4 vhs cb vedarsccdcescceus’ 4

EE be Geer WG Re ddcddcncessveseedes 4

BF Gr POPE chs cacccccnccesscndcevesces 4

SF Ges FD 5 cash seb dy iidescccicccccscens 4

Legislative Material:

uses SO, SOU. DPR RE CEDUUD cccscccescccccecsess 3

H.R. Rep. No. 104-204 (1995) ..............005. 6, 24, 26

H.R. Rep. No. 104-458 (1996) ...........ccceeeuee “7, 26

vill

Cited Authorities

Page

Administrative Materials:

Amendment of the Commission’s Rules

to Establish New PCS,

PP OED Kénvegascenccenaseescecs 4

Amendment of the Commission’s Rules to Preempt State

and Local Regulation of Tower Siting For Commercial

Mobile Services Providers, Petition for Rulemaking,

TENG Gay CPGA, COG: BR, TIRED nsec cccesccsceses 6

Amendment of Part 22 of the Commission’s Rules,

DA PED cheb Bnesnkdscesvdsdeces. 4

Comments of Frontier Cellular Holding, Inc.,

Petition for Rulemaking, RM-8577

as CU Os BOUND. Kee einveneccvndscccececass 6

Comments of McCaw Cellular Communications, Inc.,

RM-8577 (PCC Feb. 17, 1995) ......ccscccscceee 6

Comments of Sprint Corp., RM-8577

ale SU Sly ME Ke need ddaveciccseccnesctes 6

Comments of United States Cellular Corp.,

RM-8577 (FCC Feb. 17, 1995) ...........eseee0. 6

Revision of Commission's Rules To Ensure Compatibility

with E-911 Emergency Calling Systems,

11 P.CCLR. TBG7G (BBG) 2. nc cccccccccccveccees aq

U.S. West Petition for Expedited Partial

Reconsideration and for Clarification,

GEN Docket No. 90-314 (FCC Dec. 8, 1993) ..... 4

ve

ix

Cited Authorities

Miscellaneous:

CTIA Industry Mid-Year Data Survey

SD CUOEE sc ce ccccerecescssespgeveccceses 3

Peter M. Degnan, et al., The Telecommunications Act

of 1996: § 704 of the Act and Protections Afforded the

Telecommunications Provider in the Facilities Siting

Context, 3 MICHIGAN TELECOMMUNICATIONS

TECHNOLOGY LAW REVIEW 1 (1997) ............5. 5

David W. Hughes, When NIMBYs Attack: The Heights

to Which Communities Will Climb to Prevent the

Siting of Wireless Towers,

23 JOURNAL OF CORPORATION LAW 469 (1998) ..... 5, 7, 24

Leonard Kennedy & Heather Purcell, Section 332

of the Communications Act of 1934: A Federal

Regulatory Framework That Is “Hog Tight, -

Horse High, and Buil Strong,”

50 FEDERAL COMMUNICATION LAW JOURNAL 547

PGC cbN OG USNCbRs ond dccescnceseoss 3, 23

Gregory M. Kratofil, Jr., The Telecommunications

Act of 1996 and Section 704: A “Boom” or “Bust”

for the Mobile Telephony Industry,

16 Saint Louis UNiversity Pustic

Re PP UEED svdnccavaccensuccccecess 2, 25

WILLIAM C.Y. LEE, MosiL—E COMMUNICATIONS

SIDERED coccseceseseccesncceseesens 2

Kevin M. O'Neill, Wireless Facilities Are a Towering

Problem: How Can Local Zoning Boards Make

the Call without Violating Section 704 of the

Telecommunications Act of 1996?,

40 WituiaM & Mary Law Review 975 (1999) ..... 2,7

x

Cited Authorities

Page

Reinventing Competition: The Wireless Paradigm

and the Information Age, CTIA Monograph Series

oT S| Preererrrrrrrrrrr rrr rrr rte 4

Brief of the United States,

Gonzaga Univ. v. Doe, No. 01-679

(filed Feb. 22, 2002) ............---0e- i Prete 14

1

STATEMENT OF INTEREST’

The Cellular Telecommunications & Internet Association

(“CTIA”) represents all sectors of the wireless communications

industry. Members of CTIA include service providers,

manufacturers, wireless data and Internet companies, and

other industry participants. CTIA frequently participates in

Federal Communication Commission (“FCC”) proceedings

and coordinates efforts to educate government agencies and

the public about wireless issues. CTIA has been involved in

tower siting issues for decades. It participated in the FCC’s

1994 proceeding examining the ways in which local zoning

board decisions had stymied the deployment of wireless

infrastructure. That proceeding led directly to the passage of

the statutory provision at issue in this case, 47 U.S.C. § 332(c)(7).

CTIA was also actively involved in the legislative process that

led to enactment of § 332(c)(7). CTIA has presented its views

in testimony before Congress, and has filed numerous amicus

briefs in the federal courts on behalf of the wireless industry.”

Given its direct participation in the processes that led to

the enactment of § 332(c)(7) and its membership, CTIA is in a

unique position to inform the Court as to the history and

purpose of § 332(c)(7) and why § 1983 remedies are critical to

effective vindication of the rights created by § 332(c)(7).

STATEMENT

1. Modern “cellular” telephony’ works by dividing a large

geographic region into smaller “cells,” each of which is served

‘ Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent have been

lodged with the Clerk of the Court. Pursuant to Rule 37.6, CTIA states that no

counsel for a party has written this brief in whole or in part and that no

person or entity, other than CTIA, its members, or their counsel, has made

a monetary contribution to the preparation or submission of this brief.

2 CTIA has filed amicus briefs in, inter alia, Cincinnati SMSA L.P. v.

Pub. Utils. Comm'n of Ohio, N». 02-1711 (U.S.); Bartnicki v. Vopper, 532 U.S.

514 (2001); AT&T Wireless Servs. v. Tenore, No. 98-947 (U.S.); and Cellco

Partnership v. Hatch, No. 04-3198 (8th Cir.).

*A “cellular phone” is a device using any one of a number of discrete

radio services, separately licensed by the FCC, including cellular (the

original technology), Personal Communications Service (“PCS”) (a

competitive technology licensed in 1994), and certain types of Specialized

Mobile Radio (“SMR”) (a cellularized service model).

2

by a base station sited on a tower or other structure, such as a

water tower or a building. When a user makes a call, the

handset automatically communicates with the base station that

provides the strongest transmission. As the user moves

through a service area, the network hands the call from one

base station to another. By using relatively low-power, short-

range handsets to communicate with a network of relativeiy

low-power base stations, cellular technology minimizes the

interference between customers in different parts of a service

area, and allows a slice of radio spectrum to serve a far higher

number of people in a given region. |

The nature of cellular technology means that, to ensure

reliable communications, a wireless operator must construct

a network of two-way radio antennae throughout its service

area. The number of antennae needed depends on many

factors, including the radio frequency used, the transmission

technology employed, the surrounding terrain, and the

number of subscribers. Generally, the larger the number of

subscribers, the more cells and thus the more antennae are

required to provide service. See WILLIAM C.Y. LEE, MOBILE

COMMUNICATIONS ENGINEERING 9 (1982). 7

The need to site and place antennae and the towers to

which they are attached has led to conflicts between the

wireless industry and local zoning authorities. Wireless carriers

often had to seek “variance[s]” or “conditional use permit(s]”

from local zoning boards, which historically had neither clear

rules nor zoning classifications for wireless facilities. Kevin

M. O'Neill, Wireless Facilities Are a Towering Problem: How Can

Local Zoning Boards Make the Call Without Violating Section 704

of the Telecommunications Act of 1996?, 40 Wm. & Many L. Rev.

975, 986-87 n.62 (1999) (“Towering Problem”). “In some cases, a

small community simply denies the permit, and cellular

providers are forced to delay operations as they appeal or

rework an entire plan at huge costs to the provider.” Gregory

M. Kratofil, Jr., The Telecommunications Act of 1996 and Section

704: A “Boom” or “Bust” for the Mobile Telephony Industry, 16 St.

Louis Pus. L. Rev. 499, 505 (1997) (“Boom or Bust’).

2. The FCC granted the first cellular communications

license in 1983. State and local regulatory burdens, zoning laws,

3

and policies directed at protecting incumbent wireline

telephone companies contributed to the sluggish pace of

cellular expansion in the early 1980's. Leonard Kennedy and

Heather Purcell, Section 332 of the Communications Act of 1934:

A Federal Regulatory Framework That Is “Hog Tight, Horse High,

and Bull Strong,” 50 Fev. Comm. L. J. 547, 559 (1997-1998) (“Hog

Tight”). Rapid growth of cellular telephony began in the late

1980's with the introduction of smaller and less expensive

handsets and the advent of more attractive price plans. As of

December 1991, there were approximately 7.5 million cellular

subscribers nationwide. CTIA Industry Mid-Year Data Survey

(June 30, 1994). By 1994, that figure had grown to more than

19 million; despite this rapid growth, only seven percent of

the U.S. population had cell phone service. Id.

In 1993, Congress amended the Communications Act to

“foster the growth and development of mobile services that,

by their nature, operate without regard to state lines as an

integral part of the national telecommunications

infrastructure.” H.R. Rep. No. 103-111, at 260 (1993). These

sweeping changes prohibited “any” state or local regulation

of the “the entry of or the rates charged by any” wireless carrier,

47 U.S.C. § 332(c)(3)(A), and excluded wireless

telecommunications from the traditional system of state

regulation of intrastate telecommunications services and

FCC regulation of interstate telecommunications services,

rat 152(b); La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 373-74

1986).

Congress failed, however, to extend the preemptive force

of § 332 itself to state and local zoning decisions. The legislative

history of the 1993 amendments makes clear that “facilities

siting issues (e.g., Zoning)” were considered to be within the

“other terms and conditions” that were not subject to express

statutory preemption under § 332. H.R. Rep. No. 103-111, at

261.

3. Rapid changes in the industry, spurred by the federal

government's desire to encourage competitive wireless service,

soon followed. Three developments dramatically increased

demand for new cell sites: (1) Cellular subscription continued

to grow rapidly, requiring the doubling of cell sites over a ten-

+

year period, Reinventing Competition: The Wireless Paradigm

and the Information Age, CTIA Monograph, at 13 (Feb. 1995)

(“Reinventing Competition” ); (2) major SMR carriers moved to

a cellularized model and began offering connections to the

public telephone network in addition to their traditional

mobile-to-base (or “ dispatch”) radio function; and (3) the FCC

licensed PCS systems in 1994, which compete with cellular

services, Amendment of the Commission’s Rules to Establish New

PCS, 8 F.C.C.R. 7700, 7710 (1993).

The FCC imposed “build out” requirements on wireless

carriers as conditions of their licenses.* The “most important

goal” was to create “a seamless and integrated nationwide

cellular service, so that subscribers [could] receive high quality

cellular service throughout the nation.” Amendment of Part 22

of the Commission's Rules, 6 F.C.C.R. 6185, 6187 (1991). The FCC

also recognized the vital role that wireless communications

play in emergencies, and since 1994 has worked with carriers

to implement Enhanced 911 standards for wireless telephony

nationwide. Revision of Commission’s Rules To Ensure

Compatibility with E-911 Emergency Calling Systems, 11 F.C.C.R.

18676 (1996).

While the need for new wireless infrastructure grew

dramatically, wireless carriers seeking zoning approval for

network construction increasingly confronted so-called

“NIMBY” groups. As one commentator explained:

NIMBY is an acronym that stands for “ Not-In-My-

Backyard.” It refers to the phenomenon of local

citizens who desire the benefit of essential

infrastructure (e.g., nursing homes and wireless

telecommunications facilities), but want them

+ Due to the physics of PCS systems, PCS providers require between

four and seven cell sites to provide coverage identical to one cellular radio

cell site. U.S. West Petition for Expedited Partial Reconsideration and for

Clarification, GEN Dkt. No. 90-314, at 7-12 (Dec. 8, 1993). In 1994, CTIA

estimated that the rollout of PCS necessitated as many as 100,000 additional

cell sites. Reinventing Competition, at 13.

’ The FCC mandated that licensees construct sufficient tower sites to

provide coverage for their service area within a specified number of years.

See 47 C.E.R. §§ 22.947, 22.949 (cellular), 24.203(a) (PCS), 90.685(b) (SMR).

)

placed in locations other than their own

neighborhoods or communities.

David W. Hughes, When NIMBYs Attack: The Heights to Which

Communities Will Climb To Prevent the Siting of Wireless Towers,

23 J. Corp. Law 469, 482-83 (1998) (footnotes omitted) (“When

NIMBYs Attack’).

The efforts of NIMBY activists in thousands of localities

across the fifty states caused confusion, delay, and

discrimination among wireless providers. Often, zoning

boards would accede to residents’ opposition by delaying or

rejecting variance requests, resulting in litigation.* Carriers

were whipsawed between federal “build out” and service

obligations that were conditions of their FCC licenses and local

requirements that prevented them from building out their

networks.’

4. Toaddress the related problems of NIMBY-ism, zoning

board indifference or hostility, and irrational and unscientific

claims regarding health effects of radio frequency emissions,

the wireless industry, through the CTIA, petitioned the FCC

* See, e.g., BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923

(N.D. Ga. 1996) (five minute testimony from a single resident found

sufficient by zoning board to justify denial of tower permit, despite

BellSouth's presentation of an Airspace Safety Analysis, a memorandum

from County Departments of Transportation and Public Safety indicating

no objection, an independent appraisal of property values, and a willingness

to reduce the proposed pole height by 20 feet); NYNEX Mobile

Communications Co. v. Hazlet Township Zoning Bd., 648 A.2d. 724, 726-728

(N.J. Sup. Ct. App. Div. 1994) (zoning board denied use permit to locate

antenna on existing tower based solely on generalized concerns of board

and audience at hearing, where NYNEX produced testimony from town’s

former planner and drafter of town plan and zoning ordinance that permit

was consistent with the town’s plan, as well as supporting engineering

testimony regarding health and safety issues).

”“[I}n many localities, tower construction is bogged down in a

quagmire of community complaints and politically motivated governmental

reviews. Thus, cellular providers are saddled with increasing demands of

customers and federal licenses that require the cellular company to provide

adequate service in the face of increasing opposition to telecommunications

siting.” Peter M. Degnan, et al., The Telecommunications Act of 1996: § 704 of

the Act and Protections Afforded the Telecommunications Provider in the Facilii s

Siting Context, 3 Micn. Tetecomo. Tscu. L. Rev. 1, 2 (1997) (emphasis added),

a at http:/ / www.mttlr.org/volthree/ mclaren.pdf (visited Dec. 17,

6

to preempt state and local tower siting regulations and replace

them with a federal regime. See Amendment of the Commission’s

Rules to Preempt State and Local Regulation of Tower Siting For

Commercial Mobile Services Providers, Petition for Rulemaking,

RM 8577 (FCC Dec. 22, 1994).*

5. While CTIA’s petition was pending, Congress began

considering what would become the landmark

Telecommunications Act of 1996 (“1996 Act”). Ina committee

report accompanying an early version of the 1996 Act, the

House Commerce Committee found that “current State and

local requirements, siting and zoning decisions by non-federal

units of government, have created an inconsistent and, at times,

conflicting patchwork of requirements which will inhibit the

deployment of PCS as well as the rebuilding of a digital

technology-based cellular telecommunications network.”

H.R. Rep. 104-204, Pt. 1, at 94 (1995). Thus, it was “in the national

interest that uniform, consistent requirements, with adequate

safeguards of the public health and safety, be established as

soon as possible.” Id. at 94 (emphases added).

Rather than completely divesting local authorities of any

role in the zoning process and supplanting these entities with

a federal administrative solution, Congress addressed the

problem of zoning bottlenecks in a different fashion. Section

704 of the 1996 Act, codified as 47 U.S.C. § 332(c)(7), federalized

much of the local zoning process requiring that all local zoning

* A few prominent examples from the record before the FCC include:

(1) an lowa zoning board that disregarded both a state legislative

determination that cellular licensees were public utilities and an FAA

determination that a particular cell tower posed no hazard to aviation,

Comments of United States Cellular Corp., RM-8577, at 4 (Feb. 17, 1995);

(2) the denial of a zoning permit based on the claim of a single resident that

radiation from a cell tower killed one of her pet dogs, Comments of McCaw

Cellular Communications, Inc., RM-8577, at 14 (Feb. 17, 1995); and (3) the

denial of a permit to place a cell tower at a local sewage treatment plant

because of putative concerns about health, migratory birds, and

neighborhood character, Comments of Frontier Cellular Holding, Inc.,

Petition for Rulemaking, RM-8577, at 8 (Feb. 17, 1995). Even where a

variance or conditional use permit was granted, it could take years to work

through the multiple public hearings, denials, and resubmissions before

construction could begin. Comments of Sprint Corp., RM-8577, at 4 (Feb.

21, 1995).

7

decisions be supported by a federal standard of “substantial

evidence,” and creating federal rights and immunities

designed to guarantee wireless carriers fair, rational, and

competitively neutral treatment and to furnish incentives for

state and local officials to resist the political allure of NIMBY-

ism. H.R. Rep. 104-458, at 208 (1996).

Section 332(c)(7) imposes five key limits on local zoning

authorities, intended to “speed the approval and construction

of wireless facilities by limiting the means by which local

zoning boards could oppose these facilities.” Towering Problem,

40 Wo. & Many L. Rev. at 976. First, the zoning authority may

not “unreasonably discriminate” among providers of

functionally equivalent services. 47 U.S.C. § 332(c)(7)(B)(i)(I).

Second, the authority may not issue a decision that

“prohibit([s] or has the effect of prohibiting” wireless service.

Id. § 332(c)(7)(B)(i)(II). Third, the authority must act on

permit requests “within a reasonable period of time.”

Id. § 332(c)(7)(B)(ii). Fourth, the decision must be in writing

and supported by substantial evidence contained in a written

record. Id. § 332(c)(7)(B)(iii). Fifth, local and state governments

may not regulate the placement of personal wireless service

facilities on the basis of the environmental effects of

electromagnetic radiation, so long as the facilities meet FCC

standards. Id. § 332(c)(7)(B)(iv).

SUMMARY OF ARGUMENT

Section 332(c)(7) vests in wireless carriers a series of federal

statutory rights designed to override traditional principles of

local zoning law. Congress took this bold action to effectuate

a broader federal policy goal—a goal that many local zoning

authorities had systematically opposed and effectively

frustrated. The statute expressly relies upon private

enforcement in any court of competent jurisdiction to effectuate

the national goal of creating a seamless wireless

telecommunications infrastructure. Nothing in § 332(c)(7)

bespeaks any intent by Congress to select or exclude any form

of judicial relief.

Confronted with the reality that § 332(c)(7) does not

contain a “comprehensive enforcement regime,” let alone one

that is “incompatible” with the remedial provisions of § 1983,

8

petitioners alternatively seek to import such a remedial scheme

from federal common law or from the very state and local

zoning principles that § 332(c)(7) was enacted to displace. This

effort to call “spirits from the vasty deep” is fundamentally

flawed. The focus must be on Congressional intent —as

expressed in the statutory scheme at issue. Any other approach

ignores the terms and function of § 1983 by improperly using

implied judicial remedies to oust its express remedial

provisions. It would also mean that any statutory right that

satisfied the first prong of the test for enforcement under § 1983

would perforce fail the second and thus would never be

enforceable under § 1983.

There is no incompatibility between § 332(c)(7) and § 1983.

Section 332(c)(7) is the product of FCC and congressional

frustration with many zoning authorities’ conscious efforts to

block deployment of wireless facilities. The award of damages

and attorney’s fees is appropriate where injunctive relief alone

cannot vindicate federal rights and local zoning authorities

engage in willful disregard of federal rights or administrative

chicanery that frustrates their vindication. Because the Ninth

Circuit faithfully applied this Court’s precedents, and because

the arguments of petitioners and supporting amici would

effectively gut § 1983 as an enforcement mechanism for all

federal statutory rights —nct only those contained in § 332—

the judgment of the court of appeals should be affirmed.

ARGUMENT

I. PETITIONERS CANNOT OVERCOME THE STRONG

PRESUMPTION IN FAVOR OF THE AVAILABILITY

OF § 1983 REMEDIES.

On its face, § 1983 creates no federal rights but supplies

federal remedies against anyone who, under color of state law,

deprives a person “of any rights, privileges, or immunities

secured by the Constitution and laws.” 42 U.S.C. § 1983

(emphases added). Nothing in § 1983 limits its reach only to

certain types of federal rights, and this Court has recognized

that § 1983 “means what it says” and extends to “laws” of the

United States. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Thus,

where a federal statutory right is clearly at stake — as petitioners

—<-—

9

and the United States concede here, Pet. Br. 33; U.S. Br. 16—

there is a heavy presumption that Congress intended § 1983

to provide federal remedies for the deprivation of any federal

right, unless Congress “specifically foreclosed a remedy under

§ 1983,” Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984).

Petitioners therefore have the burden to demonstrate that

Congress, by providing a cause of action in § 332(c)(7),

intended to “close the door on § 1983 liability.” Blessing v.

Freestone, 520 U.S. 329, 348 (1997); see Wright v. City of Roanoke

Redev. and Hous. Auth., 479 U.S. 418, 424 (1987). Not even

petitioners suggest that Congress expressly “forb[ade] recourse

to § 1983 in the statute itself.” Blessing, 520 U.S. at 341.

Accordingly, petitioners must demonstrate that Congress

“impliedly” foreclosed § 1983 liability “by creating a

comprehensive enforcement scheme that is incompatible with

individual enforcement under § 1983.” Id. at 341 (emphases

added). In the more than 20 years since Maine v. Thiboutot,

this Court has found such an extraordinary implied ouster of

§ 1983 remedies only twice. Middlesex Cty. Sewerage Auth. v.

Nat'l Sea Clammers Ass’n, 453 U.S. 1 (1981); Smith, 468 U.S. 992.

This is not such an extraordinary case.

A. Petitioners’ Attempt To Conjure Up a

“Comprehensive Remedial Scheme” under this

Court’s Precedents Borders on the Frivolous.

Section 332(c)(7) grants a limited and identifiable class of

beneficiaries a specific set of substantive and procedural rights.

The substantive rights include a right to be free from state and

local prohibitions on federally licensed commercial activity

and immunity from anti-competitive discrimination by those

governments. The procedural rights include the right to a

written and timely decision. The statute contemplates the

vindication of these federal rights through judicial

enforcement — thus effectuating through private litigation the

statutory goal of overcoming staunch local resistance to the

rapid and efficient deployment of a seamless national wireless

infrastructure. In this sense, § 332(c)(7) is no different from a

host of federal statutes that create specific rights in private

10

parties, using private law suits to promote broader statutory

goals.’

Section 332(c)(7)(B)(v) creates a private cause of action,

authorizing “[a]ny person adversely affected” by any denial

of the federal rights created by the statute to “commence an

action in any court of competent jurisdiction.” As petitioners

themselves point out, Pet. Br. 2-3, 46, Congress specifically

rejected a model of preemption through exclusive federal

administrative proceedings in favor of creating specific rights

enforceable in state or federal court. Section 332(c)(7) contains

exactly the “sort of explicit ‘right-or-duty creating language,’”

Gonzaga Univ. v. Doe, 536 U.S. 273, 284 n.3 (2002) (citation

omitted), that is “ presumptively enforceable by § 1983,” id. at

284. Indeed, this was undisputed below, see Abrams v. City of

Rancho Palos Verdes, 354 F.3d 1094, 1096 (9th Cir. 2004), and is

undisputed by the parties here.

Because § 332(c)(7) unambiguously vests respondent and

all providers of personal wireless services with judicially

enforceable federal rights, petitioners must establish that this

is one of those “exceptional cases,” Livadas v. Bradshaw, 512

U.S. 107, 133 (1994), where they can “make the difficult

showing that allowing § 1983 actions to go forward in these

circumstances ‘would be inconsistent with Congress’ carefully

tailored scheme.” Blessing, 520 U.S. at 346 (citation omitted).

They cannot make that “difficult showing” without doing

violence to the well-established methods of ascertaining

congressional intent or radically reworking more than 20 years

of § 1983 jurisprudence.

The text and structure of § 332(c)(7) reveal no evidence of

a congressional intent to “close the door” on § 1983 remedies.

The only affirmative (or negative) remedial choice Congress

made in § 332(c)(7) was the decision to create judicially

enforceable ights that could support some form of judicial

relief. Nothing in the text, structure, or legislative history of

* See, e.g., 20 U.S.C. §§ 1681-1688 (Title IX of the Education

Amendments of 1972); 42 U.S.C. § 1396a(a)(13)(A); 42 U.S.C. § 2000d (Title

IV of the Civil Rights Act of 1964); 42 U.S.C. § 1971 (Voting Rights Act).

Each of these statutes creates individual rights, enforceable in federal court,

to further national policy goals.

Rayne eat Sea ES

11

§ 332(c)(7) hints that Congress preferred any one form of

judicial relief over another, or that Congress viewed § 332(c)(7)

as a “comprehensive enforcement scheme” incompatible with

the statutory remedies for vindicating federal rights

presumptively available under § 1983.

To the contrary, Section 601 of the Communications Act

conclusively proves otherwise. Section 601(c)(1) provides

courts with a specific rule of statutory construction when faced,

as here, with the question whether Congress in the

Communications Act meant “impliedly” to affect the

continuing applicability of any federal statute.’ Section 601

mandates that the provisions of the Act “shall not be construed

to modify, impair, or supersede Federal, State, or local law

unless expressly so provided in such Act.” 47 U.S.C. § 152 note,

110 Stat. 143. This statutory text—including the title, “[nJo

implied effect”~makes clear that nothing in the

Communications Act can overcome any other federal statute

unless Congress says so explicitly. Congress has not expressly

stated that § 1983 remedies are unavailable in a suit arising

under § 332(c)(7); petitioners’ only argument is that Congress

impliedly ousted § 1983.

In light of the plain language of Section 601, as the

Eleventh Circuit correctly understood, there is no reason even

to examine the “comprehensiveness” of § 332(c)(7). AT&T

Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1327 (2000),

vacated on other grounds, 260 F.3d 1320 (2001). That inquiry is

only an indirect means of ascertaining Congressional intent.

See Sea Clammers, 453 U.S. at 20. Here, Congress has already

directly and unambiguously expressed its intent with respect

to any possible nullification by implication. The judicial review

provisions of the Act “shall not be construed” to have any

“implied effect” on § 1983.

Implicitly recognizing the lack of “rebuttal evidence” in

the statute itself, petitioners’ argument is consumed with

drawing inferences from congressional silence and reaching

” Unlike the “savings clauses” at issue in Sea Clammers, Section 610

does not simply preserve substantive rights outside the Communications

Act. See 433 U.S. at 20-21 n. 31. Rather, it supplies a rule of construction for

assessing the interaction of the Communications Act with preexisting

provisions of federal law, including § 1983.

12

outside of § 332(c)(7) for evidence that Congress meant to

exclude § 1983 as an enforcement tool for this statute.

Petitioners argue that because (a) § 332(c)(7) creates a federal

cause of action, Pet Br. 4-5, 36; and (b) general principles of

federal common law require federal courts to imply

appropriate judicial relief where none is specified, Pet. Br. 37-

39; these judicially implied remedies demonstrate that

Congress intended to “shut the door” on all § 1983 remedies.

See also U.S. Br. 16-17.

These endeavors are fundamentally flawed. Section 1983

is an express statutory authorization of certain remedies,

intentionally crafted in general and capacious terms. The plain

language of that provision provides that “[e]very person” who

subjects “any citizen of the United States or person within the

jurisdiction thereof to the deprivation of any rights” under

federal law “shail be” liable for damages and attorneys fees.

42 U.S.C. § 1983 (emphases added). The notion that

congressional silence, “federal common law,” the inherent

remedial powers of the federal courts, Pet. Br. 34-36; U.S. Br.

15-17, 20-22, or even the limits on state-court power to enforce

state law, Pet. Br. 36-39, 41-45 & Apps. B & C, Nat'l League of

Cities Br. 13-15, can constitute a “comprehensive enforcement

scheme” sufficiently robust to overcome the plain language

of § 1983 and the presumption in favor of its applicability is

both unprecedented and unwise. —-_ . |

1. Section 332 breathes not a word about remedies. As

petitioners concede, “[the statute] does not enumerate the

available remedies.” Pet. Br. 37; see PrimeCo Personal

Communications, L.P. v. City of Mequon, 352 F.3d 1147, 1152 (7th

Cir. 2003). Simply put, congressional silence as to remedies

does not “a comprehensive enforcement regime” make. See,

e.g., Sea Clammers, 453 U.S. at 20 (“When the remedial devices

provided in a particular Act are sufficiently comprehensive, they

may suffice to demonstrate congressional intent to preclude

the remedy of suits under § 1983.” (emphasis added)); id. at 21

(“[T]he existence of these express remedies demonstrates ... that

[Congress] intended to supplant any remedy that otherwise

would be available under § 1983.” (emphasis added)).

13

. Nor can the failure to select or exclude any particular

judicial remedies be deemed “incompatible” wilicanetinaien

of a statute that is by design “a generally and presumptively

available remedy for claimed violations of federal law.”

Livadas, 512 U.S. at 133. Section 332(c)(7) is no more or less

compatible or incompatible with § 1983 remedies than it is

with the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202,

the All Writs Act, 28 U.S.C. § 1651, or the Article III powers of

the federal courts to remedy violations of federal law.

2. As both petitioners and the United States acknowledge,

congressional intent is the touchstone of the rebuttal analysis

under Sea Clammers. Pet. Br. 20; U.S. Br. 13. But heretofore the

search for that intent has been limited to the text and legislative

history of the federal enactment at issue; it has never been a

free-floating inquiry into remedial possibilities outside the

relevant statutory scheme. See Wilder v. Va. Hosp. Ass’n, 496

U.S. 498, 521 (1981) (“[W]e have found private enforcement

foreclosed only when the statute itself creates a remedial scheme

that is ‘sufficiently comprehensive ... to demonstrate

congressional intent to preclude the remedy of suits under

§ 1983.’" (emphasis added) (quoting Sea Clammers, 453 US. at

20)); Smith, 468 U.S. at 1011 (relying upon the “comprehensive

nature of the procedures and guarantees set out in the EHA”

in finding Sea Clammers test satisfied).

In contrast to the established approach of analyzing the

statutory enforcement scheme immediately surrounding the

federal right at issue, looking to general judicially implied

remedies makes no sense as a means of ascertaining

congressional intent. Such remedies are, after all, created by

the judiciary and, by definition, constitute no evidence as to

Congress's intent concerning any particular federal right. See

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992)

(Scalia, J., concurring in the judgment). Section 1983's remedial

provisions are as much (or more) a part of the background

against which Congress legislates than any remedy implied

by application of “federal common law.”

Only three Terms ago, the United States expressly

recognized these principles, noting that once Congress creates

a specifically enforceable statutory right, it “need not go further

14

and warn in advance of ‘the remedies available against a

noncomplying State.’ Section 1983's text already makes that clear.”

U.S. Br. at 8-9, Gonzaga Univ. v. Doe, No. 01-679 (filed Feb. 22,

2002) (emphasis added) (citation omitted). Given the state of

the law in 1996, the most logical inference to be drawn from

Congress's creation of a specific federal right, without the

selection or exclusion of any form of judicial relief, is that

Congress intended to authorize a federal court to award the

relief authorized by § 1983.

Likewise, it is difficult to see how the judicial power to

imply remedies could operate to “repeal or replace,” Smith,

468 U.S. at 1012, § 1983 remedies. Unlike a judicially implied

right of action or remedy, “§ 1983 provides an ‘alternative

source of express congressional authorization of private suits.’”

Wilder, 496 U.S. at 509 n.9 (citation omitted). The very

separation-of-powers concerns that militate against broad

judicial implication of private remedies, see Thompson v.

Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring in

the judgment), counsel against finding that judicially implied

remedies supplant a generally applicable remedial statute.

Indeed, if legislative repeals by implication are “not favored,”

Morton v. Mancari, 417 U.S. 535, 549 (1974), one would think

that repeals by “judicial implication” are forbidden, see

Franklin, 503 U.S. at 77-78 (Scalia, J., concurring in the

judgment) (suggesting judicial power to limit implied

remedies because they “should be limited by the same logic

that gave them birth”)."

Not surprisingly, given its tenuous roots, the

“comprehensive enforcement scheme” that petitioners

would erect from background principles of federal and state

law is of uncertain dimension. By positing that a federal

court’s power under § 332(c)(7) is limited to injunctive relief,

" That Congress knows how specifically to limit the availability of

certain remedies by express provision is clear from the Communications

Act itself. Section 635A(a) of the Communications Act, entitled “Suits

for damages prohibited,” specifically limits the ability of cable operators

to seek damages from local governments for violations of federal rights.

47 U.S.C. § 555a(a) (“limit[ing]” suits against local cable franchising

authorities to “injunctive relief and declaratory relief”).

—

15

Pet. Br. 37-39"*— which would fail to make some plaintiffs

whole, see infra Part Il—petitioners break faith with the

Seventh Circuit opinion upon which they otherwise so

heavily rely. See PrimeCo, 352 F.3d 1152-53 (conferral of a

private cause of action to enforce a federal statute “is

presumed to entitle a successful plaintiff to the usual

remedies, [citing Franklin], which include damages as well

as injunctive relief”); see also Nextel Partners Inc. v. Kingston

Township, 286 F.3d 687, 695 & n.6 (3d Cir. 2002).

The United States is agnostic on this point, expressly

avoiding “the question whether and under what

circumstances other [non-injunctive] forms of relief are

available.” U.S. Br. 16 n.2. Petitioners too claim that this

Court need not resolve the issue of availability of damages

under § 332(c)(7) in order to find that statutory scheme

sufficiently comprehensive to foreclose § 1983 remedies. Pet.

Br. 38 n.12. The disagreement highlights the ad hoc nature

of casting about for general principles of federal law and

inherent judicial powers to conjure up a remedial regime to

“repeal or replace” § 1983's statutory remedies.

3. Once petitioners’ attempts to divorce the test for

ouster of § 1983 remedies from the text, structure, and

purpose of § 332(c)(7) are rejected, the argument that a

“comprehensive enforcement scheme” exists in this statute

is burlesque. The only two cases in which this Court has

found a “comprehensive enforcement scheme” involved a

panoply of administrative, public, and private enforcement

mechanisms that this Court described as “unusually

elaborate,” Sea Clammers, 453 U.S. at 13, “carefully tailored,”

and “detailed,” Smith, 468 U.S. at 1019, 1011.

" This is a quite a leap from Franklin, where the Court reiterated its

prior rulings that “federal courts ‘have the power to grant all necessary

remedial relief for violations of [federal statutory rights],” 503 U.S. at 68

(emphasis added) (citation omitted), and “that the ‘existence of a

statutory right implies the existence of all necessary and appropriate

remedies,” id. at 68-69 (emphasis added) (citation omitted), and held that

“a damages remedy is available for an action brought to enforce Title

IX,” id. at 76. Nowhere do petitioners explain how a party that suffers

otherwise unrecoverable economic losses from a zoning board's violation

of federal rights can be made whole with only injunctive relief. See infra

Part Il.

16

For example, in Sea Clammers, Congress made

affirmative remedial choices that evinced a conscious design

to include certain types of remedies and exclude others.

These included administrative “compliance orders,” civil

actions by the EPA Administrator, federal civil and criminal

penalties, state civil and criminal enforcement authority, and

judicial review of actions by the EPA Administrator. 453 U.S.

at 13-14. Both statutory schemes also contained “citizen suit

provisions,” which contained detailed requirements and

exceptions to the private right of action and authorized only

injunctive relief. 453 U.S. at 14."

Similarly, in Smith, Congress made an affirmative choice

to require, as a prerequisite to suit, an “elaborate procedural

mechanism” that brought together all relevant parties in a

mediation-type environment. 468 U.S. at 1011 (providing

for state hearings before judicial review in “a process that

begins on the local level and includes ongoing parental

involvement [and] detailed procedural safeguards” ). These

carefully crafted “administrative remedies,” designed to

produce a non-adversarial process, constituted the

comprehensive scheme inconsistent with the adversarial

nature of federal litigation. Jd. at 1101-02.

4. More fundamentally, petitioners and the United

States rely upon the flawed premise that the availability of

any form of judicial relief to vindicate a federal right ousts

§ 1983 remedies. Indeed, the United States goes so far as to

urge this Court to erect a new rule —any statutory provision

that creates a cause of action is per se comprehensive and

therefore ousts § 1983 remedies as a matter of law. See, e.g.,

U.S. Br. 15-17 & n.3

This accretion to the Sea Clammers rebuttal analysis has

no foundation in the language of § 1983, the precedent of

this Court, or logic. In fact, the strange regime advocated

'’ The “citizen-suit provisions” of each statute contained a detailed

set of notice requirements and preclusion of suit where a governmental

actor had initiated parallel civil or criminal proceedings. Sea Clammers, 453

U.S. at 6 n.9, id. at 7, n.11. The contrast with the unalloyed right to

“commence an action in any court of competent jurisdiction,” 47 U.S.C.

§ 332(c)(7)(B)(v), could not be more stark.

17

by the United States, and implicitly endorsed by petitioners,

Pet. Br. 36, would eviscerate the very two-part test the

government dutifully recites in its brief, U.S. Br. 12, and

render those statutory rights that could be enforced

pursuant to § 1983 a null set. Through the backdoor of

“rebuttal analysis,” the United States is asking this Court

to take the radical step of overruling Maine v. Thiboutot by

reading the “and laws” clause out of § 1983, as demonstrated

below.

First, § 1983 unambiguously authorizes an aggrieved

party to seek the relief enumerated therein for the

deprivation of “any” “right[]” under the “laws” of the

United States. 42 U.S.C. § 1983. Nowhere does it say that

the absence of other judicial relief (or any other form of

redress) is a precondition to the availability of remedies

under § 1983, or that § 1983 is a civil action of last resort.

Quite simply, § 1983 contains no hint of exclusivity.

Second, the rule advocated by the United States is

contrary to more than one hundred years of jurisprudence.

“Rights, privileges and immunities” granted by the Federal

Constitution have been enforced by private parties against

state actors since well before the passage of the Civil Rights

Act of 1871. See, e.g., McCulloch v. Maryland, 17 (4 Wheat.)

U.S. 316, 438 (1819); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

199-200 (1824). Similarly, federal courts enjoined state action

in conflict with federal statutes well before the passage of

what is now § 1983. See, e.g., Weston v. Charleston, 27 U.S. (2

Pet.) 449, 466 (1829). But the fact that judicial relief may be

available independent of § 1983 to enforce federal law

against state actors has never been held to work a per se

ouster of § 1983. In fact, this Court has held exactly the

opposite. Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103, 108 (1989) (“[T]he fact that a federal statute

has preempted certain state action does not preclude the ~

possibility that the same federal statute may create a federal

right for which § 1983 provides a remedy.”).

Third, the United States’ new rule guarantees that no

statutory right will ever be enforceable under § 1983. That

is because the very statutory indicia that would satisfy the

18

demanding first part of this Court's test for determining

whether § 1983 relief is available (the existence of an

enforceable federal “right” in the plaintiff) would, at the

same time, constitute conclusive evidence that Congress

intended to shut the door on any § 1983 remedy. Specifically,

as to the first part of the test, the United States concedes, as

do petitioners, that § 332(c)(7)(B) creates such a right. This

means, as this Court explained in Gonzaga just three Terms

ago, that there exists in the statute nothing “short of an

unambiguously conferred right to support a cause of action

brought under § 1983,” and that § 332(c)(7) satisfies the

standards articulated in this Court's implied right of action

cases. See 536 U.S. at 283.

Indeed, as the Eleventh Circuit observed in AT&T

Wireless PCS, there is no question that Congress intended

that § 332(c)(7) confer benefits on particular individuals.

By its terms, it allows “‘[a]ny person adversely affected by

any final action or falure to act by a State or local

government. .. that is inconsistent with this subparagraph’

to ‘commence an action in any court of competent

jurisdiction.’” 210 F.3d at 1326 (quoting 47 U.S.C.

§ 332(c)(7)(B)(v)). Nor is any right protected by § 332(c)(7)

“so ‘vague and amorphous’ that its enforcement would

strain judicial competence,” 210 F.3d at 1326 (citation

omitted), because it “imposes well-defined obligations on

governmental entities,” id.; see 47 U.S.C. § 332(c)(7)(B)(i)-

(iv). In addition, “[t]he obvious inference” from Congress's

decision to permit aggrieved parties to go to court pursuant

to § 332(c)(7)(B)(v) “is that Congress itself believed that the

rights protected [by the statute at issue] are not so vague

and amorphous as to strain judicial competence.” 210 F.3d

at 1326. Finally, the statute’s mandatory terms—“shall not

unreasonably discriminate,” “shall not prohibit or have the

effect of prohibiting the provision of personal wireless

services,” and “shall [make any denial] in writing and

supported by substantial evidence contained in a written

record” —make clear that § 332(c)(7) “‘unambiguously

impose[d] a binding obligation’ on the governmental body

in question.” Id. (citation omitted).

—_— ——— «=~ -

19

Under the United States’ reasoning, the very satisfaction

of the demanding “specific right” test enunciated in Gonzaga

demonstrates Congress's intent to close the door on § 1983.

As soon as the conditions for finding a right of action are

satisfied, the statute will necessarily supply a cause of action

and some avenue for “meaningful judicial review”; but the

availability of that “meaningful judicial review” is always

“sufficient” to find a comprehensive enforcement scheme

that ousts § 1983 remedies. U.S. Br. 17 n.3. Thus, the United

States conflates the two-part test for determining whether

a right is enforceable under § 1983 into a single question

(does an enforceable right exist?) to which either answer fails

the test for the applicability of § 1983. This “heads | win,

tails you lose” approach would eviscerate any enforcement

of federal statutory rights through § 1983."

B. Nothing in § 332(c)(7) Is Incompatible with the

Judicial Remedies Made Available by § 1983.

Beyond what Congress does not say, none of what

§ 332(c)(7) does say evinces any congressional intent to “shut

the door” on § 1983 relief. Petitioners do not even suggest

that these limited procedural provisions—the 30-day

statute of limitations and expedited review, 47 U.S.C.

§ 332(c)(7)(B)(v) — constitute a comprehensive enforcement

scheme. Instead, they argue only that these provisions are

inconsistent with the § 1983 remedy.” They are not.

'* Nor can the United States seriously contend that there is some

difference between “explicit” or “express,” U.S. Br. 4, 15, 21, and “implied”

rights of action for purposes of its rule. Certainly it cannot be the United

States’ position that where Congress was less clear than in § 332(c)(7) about

whether it intended to create a right of action, the § 1983 remedy should be

more readily available. See Franklin, 503 U.S. at 78 (Scalia, J., concurring in

the judgment).

' Petitioners also suggest that the requirement in § 332(c)(7) that there

be “final action or a failure to act by a State or local government,” prior to

bringing suit erects some sort of “exhaustion” requirement that is

inconsistent with § 1983. Pet. Br. 32 n.10; see U.S. Br. 25 n.5. There is, however,

no requirement in § 332(c)(7) that applicants exhaust administrative

remedies, such as by appealing any adverse decision to a board of review,

filing a petition for reconsideration, or pursuing judicial review in state

court. This is not a case where there is some separate and additional

(Cont'd)

20

First, the centerpiece of petitioner’s case for

incompatibility — the “dramatic inconsistency” between the

statute of limitations applicable to a § 1983 action in the

abstract and the 30-day limitations period in § 332(c)(7),

Pet. Br. 28; see U.S. Br. 23-25 —is ephemeral. Indeed, in their

efforts to manufacture a conflict between the § 1983 and

§ 332 limitations periods, petitioner and the United States

cannot even agree on what the applicable statute of

limitations under § 1983 is or from whence it could be

“imported.” Compare Pet. Br. 28, 34 n. 11 (arguing that a four-

year statute of limitations applies under 28 U.S.C. § 1658

and this Court’s decision in Jones v. R.R. Donnelly & Sons

Co., 124 S. Ct. 1836 (2004)), with U.S. Br. 23 & n.4 (arguing

that the limitations period for a § 1983 action would be

“either the four-year period provided for in 28 U.S.C. 1658

... or the appropriate limitations period under Wilson v.

Garcia, 471 U.S. 261, 267 (1985)”). Neither is correct. There

is no inconsistency: the limitations period for a § 1983 action

brought to enforce § 332 rights can only be 30 days, as

respondent explains.

It is beyond dispute that there is no “specific statute of

limitations governing § 1983 actions.” Wilson, 471 U.S. at

266. Where the underlying federal rights are constitutional

rights, they clearly do not contain their own limitations

period, and this Court thus has developed judicial tools for

determining the appropriate limitations period. Before

Congress in 1990 enacted the federal catch-all statute of

limitations, 28 U.S.C. § 1658, this Court faced the same task

as to federal statutory rights. In both cases, the “settled

practice [was] to adopt a local time limitation as federal

law.” Wilson, 471 U.S. at 266-67. It is unclear whether the

four-year federal catch-all statute of limitations, which

applies only to “a civil action arising under an Act of

(Cont'd)

administrative process that must be followed before bringing suit. The first

action by a zoning board “under color of” state law allows the filing of a

suit in federal court. These provisions do not conflict with § 1983 — rather,

they reflect standard ripeness principles for challenging state action that

apply in any federal case.

ets

21

Congress enacted after [December 1, 1990],” would apply

to a § 1983 action seeking to enforce a right that did not

exist until after 1990."* U.S. Br. 23 n.4. Neither method is

necessary here, however, where the underlying statute that

creates the federal right at issue itself establishes a statute

of limitations for all judicial relief.

Where the underlying federal statutory right does

include its own statute of limitations —30 days in the case

of § 332(c)(7) — there is no reason to look beyond that specific

limitations period. See Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, 501 U.S. 350, 359 (1991). Both the

“settled practice” under Wilson and 28 U.S.C. § 1658

expressly recognize that a directly applicable tederal statute

of limitations always governs and makes either the

borrowing exercise or resort to the federal catch-all period

unnecessary. Wilson, 471 U.S. at 266-67 (identifying the

practice as “adopt[ing] a local time limitation as federal law

if it is not inconsistent with federal law or policy to do so”

(emphasis added)); 28 U.S.C. § 1658 (applying a four-year

statute of limitations to actions brought under a federal Act

“[e]xcept as otherwise provided by law” (emphasis added)).

There is simply nothing “inconsistent” in applying a federal

statute of limitations connected to a specific statutory right

in an action under § 1983.

** If the United States were correct that, even after the enactment of 28

U.S.C. § 1658, courts must import the applicable state statute of limitations

for § 1983 actions, Congress's failure to specify a statute of limitations or

its adoption of a specific statute of limitations would always “conflict”

with § 1983. This is because § 1658's four-year limitations period would

apply to any new federal cause of action that was otherwise silent, and any

statute of limitations connected to the new right would conflict with § 1983

unless it mirrored the most analogous state statute of limitations under

Wilson. Under the United States’ view, the only way Congress could create

new federal rights and avoid the “dramatic inconsistency” manufactured

by the government would be to conduct the Wilson enterprise itself and

specify that federal courts should engraft the applicable state statute of

limitations onto the new federal cause of action, thereby achieving

“consistency” with § 1983.

22

Second, contrary to petitioners’ suggestion, Pet. Br. 28-

29; see U.S. Br. 23-24, there is no conflict between Congress's

direction that courts “shall hear and decide” § 332(c)(7)

“action[s] on an expedited basis,” 47 U.S.C. § 332(c)(7)(B)(v),

and § 1983 relief. Even assuming that the requirement of

“expedited” treatment has any teeth —a proposition belied

by the procedural history of this very case’’—it does not

suggest any congressional hostility to § 1983 remedies.'* The

expedition requirement of § 332 supplements the procedures

available under § 1983, but it does not conflict with them.

C. Petitioners’ Argument that § 332(c)(7) Incorporates

or Emulates Local Zoning Law Is Specious.

Much of petitioners’ and their supporting amici’s

incompatibility argument rests on the extraordinary

proposition that a federal law born of the recognition that

local zoning law and procedures were stifling federal

communications policy somehow adopted wholesale

principles of local zoning law. Petitioners boldly assert that

§ 332(c)(7) “reflects a concerted effort to preserve and

emulate traditional [state zoning] procedures.” Pet. Br. 42.

The notion that Congress, frustrated with the Byzantine

tangle of state zoning requirements and the obstructionist

policies of certain local zoning administrations, would have

adopted § 332 solely to “emulate” these policies defies logic.

Even the United States concedes that the “antenna siting

decisions [of local zoning boards] historically have

threatened to impede the development of wireless

communications.” U.S. Br. 2. It goes on to note that, “[w]hen

Congress considered telecommunications reform, it found

that zoning had impaired the development of the wireless

telecommunications industry,” and that because the 1996

Act was designed to promote competition and “encourage

7 It took the district court over sixteen months to conclude that the

City had violated Abrams’s rights, and two more years elapsed before the

Ninth Circuit issued its ruling.

' Moreover, as a procedural matter, nothing prevents zoning boards

and applicants alike from requesting expedited treatment for § 1983 claims

brought to vindicate rights under § 332, and nothing precludes a court

from granting such treatment where it believes it necessary to efficient

administration of the case.

23

the rapid deployment of new telecommunications

technologies,” § 332(c) was amended to “impose specific

restrictions on state and local regulation of personal wireless

service facilities.” Jd. at 2-3 (citations omitted). Indeed,

petitioners’ argument is conclusively refuted by § 332’s

legislative history. Congress did not disturb local zoning

authority in 1993, and it was dissatisfaction with that state

of affairs that led to the passage of § 332(c)(7) in 1996. “If

Congress had sought [in the 1996 Act] to maintain the status

quo, it could have dispensed with the provisions of the 1996

= a to zoning authority.” Hog Tight, 50 Como. L. J.

at ;

In fact, § 332(c)(7)(B) contains three significant new

rights that have no analogue in “traditional” state zoning

procedures. See 47 U.S.C. § 332(c)(7)(A) (preserving local

zoning authority “[e]xcept as provided in” the rest of §

332(c)(7)).* First, local zoning authorities may not issue a

decision that “prohibit[s] or has the effect of prohibiting”

wireless service. Id. § 332(c)(7)(B)(i)(II). This confers upon

wireless carriers a unique federal protection — regardless of

the existence of other justifications for denying an

application, a zoning board is foreclosed by § 332(c)(7) from

making a decision that prohibits or has the effect of

prohibiting wireless service.

The First Circuit summarized the dramatic effect of this

new federal right: “[L]ocal zoning decisions and ordinances

that prevent the closing of significant gaps in the availability

of wireless services violate the statute,” and thus justify the

imposition of a remedial order. Plainville, 297 F.3d at 20, 25

'* Courts have recognized that § 332(c)(7) contains new federal rights,

and does more than simply authorize a zoning board appeal in federal

courts. See, ¢.g., Voicestream Minneapolis, Inc. v. St. Croix Cty., 342 F.3d 818,

833 (7th Cir. 2003); Nat’! Tower, LLC v. Plainville Zoning Bd. of Appeals, 297

F.3d 14, 21-23 (1st Cir. 2002); Town of Amherst v. Omnipoint Communications,

173 F.3d 9, 15-16 (1st Cir. 1999). To this end, where federal rights under §

332(c)(7) are at stake, such as non-discrimination and the bar on prohibiting

service, courts have looked beyond the record below and admitted new

evidence and testimony for their de novo review of the issues. This is not

the stuff of administrative appeal.

24

(citations omitted) (emphasis added). Thus, even if a local

zoning authority’s decision is based on “substantial

evidence,” it will not be upheld if it has “the effect of

prohibiting the provision of personal wireless services.”

Omnipoint Communications MB Operations, LLC v. Town of

Lincoln, 107 F. Supp. 2d 108, 115, 117, 121 (D. Mass. 2000).

Second, neither local nor state governments may

regulate the placement of personal wireless service facilities

on the basis of the environmental effects of electromagnetic

radiation, so long as these facilities meet FCC standards.

47 U.S.C. § 332(c)(7)(B)(iv). Prior to § 332(c)(7), local

communities often justified blocking wireless facilities on

ephemeral environmental concerns. See supra n.8; When

NIMBYs Attack, 23 J. Corp. Law at 493-94 (“NIMBYs

zealously make the [argument that] RF [Radio Frequency]

emissions [are harmful] despite the lack of a connection

between the human health effects from exposure to EMFs

from electrical power lines and the human health effects

from exposure to RF from wireless towers.”). As Congress

recognized early in the drafting of the 1996 Act, “[a] high

quality national wireless telecommunications network

cannot exist if each of its component [sic] must meet

different RF standards in each community.” H.R. Rep. 104-

204, at 95. By eliminating this potential objection, Congress

removed one of the most common methods for objecting to

siting permits.

Third, § 332(c)(7) prohibits local zoning authorities from

discriminating between providers of functionally equivalent

services. 47 U.S.C. § 332(c)(7)(B)(i)(I). This section was

designed to “ensure” that zoning boards could not

“unreasonably favor one competitor over another.” Id.

By grouping the various constituents of “personal

wireless services” together and prohibiting unreasonable

discrimination among them, Congress forbade localities

from using technological differences as a justification for

blocking new entrants from the market, a problem

encountered nationwide. “[Zoning authorities] all over the

country have been actively discriminating against new

cellular providers in the name of property value and

St nee

aie dee

25

aesthetics, or more appropriately, NIMBYism.” Boom or Bust,

at 517. Thus, it is clear that § 332(c)(7) is not a wholesale

adoption of traditional state zoning principles.

Il. SECTION 1983 REMEDIES ARE A NECESSARY

TOOL TO PROTECT WIRELESS LICENSEES’

FEDERAL RIGHTS.

A. Section 1983 Remedies Are Necessary To Make

Some Licensees Whole.

Section 1983 is necessary to allow courts to fashion

remedies where injunctive relief alone would be insufficient.

In Omnipoint Communications, Inc. v. City of White Plains,

175 F. Supp. 2d 697 (S.D.N.Y. 2001), for example, the zoning

authority’s unlawful delay in acting on Omnipoint’s permit

application resulted in the carrier losing a lease on the

private property where it intended to build the tower. Id. at

706. An injunction requiring grant of a permit would do no

good in that circumstance; indeed, the court suggested that

without the § 1983 claim, the carrier’s cause of action would

have been moot, and the city’s unlawful conduct would have

escaped redress entirely. Id. at 706-07.

Similarly, damages under § 1983 may be appropriate if a

zoning authority imposes gratuitous or excessive fees on a

carrier seeking a permit. In Nextel v. Town of Randolph, an

ordinance required that Nextel pay a $38,000 application fee

and a $38,000 permit review fee in order to construct a single

tower. 193 F. Supp. 2d 311, 314-315 (D. Mass. 2002). While the

court found this fee to be excessive under state law, and further

found a violation of § 332(c)(7), it also held that § 1983 remedies

we. not available. Id. at 321, 322. Fortunately, the municipality

in Randolph had not insisted on upfront payment of the illegal

fees, but the case illustrates how the lack of a damages remedy

can leave a carrier with no redress for a blatant violation of

federal right.

By providing the possibility of attorney’s fees under

§ 1988, § 1983 serves another vital role in siting disputes.

Petitioners attempt to portray all potential § 332(c)(7) plaintiffs

as large well-financed corporations, Pet. Br. 31, but § 332(c)(7)’s

protections also apply to smaller licensees providing personal

26

wireless services. CTIA members like Farmers’ Wireless, which

serves a 50-mile section of the I-59 corridor in Alabama, and

Poka Lambro, which provides service to West Texas, would

benefit from coverage under § 1988. The respondent in this

case is a classic example of a small, entrepreneurial licensee

who would not be able to enforce his federal rights absent the

incentives created by the possibility of a fee award.

Moreover, stripping away the possibility of attorney’s fees

would disproportionately harm new entrants, who may not

yet have revenues as large as previously established players.

One of the primary motivations underlying § 332 was to

encourage new entrants to build out new technologies and

services. See H.R. Rpt. 104-204, Pt. 1, at 94. It would be perverse

for Congress to enact a law designed to encourage market entry

and then have the courts effectively restrict its enforcement to

only those players with enough money to take on wealthy

municipalities such as Rancho Palos Verdes.

B. Section 1983 Suits Are Necessary To Effectuate

Federal Policy and Rein In Egregious Misconduct.

With the passage of the 1996 Act, Congress avoided

creating a Washington-based bureaucracy that would

deprive local zoning authorities of any involvement in

zoning decisions. H.R. Rep. 104-458, at 207. Congress also

specifically directed the FCC to terminate any pending

rulemaking that might produce a similar result. Id. at 208.

Instead, § 332(c)(7) gave wireless providers a set of

procedural and substantive federal rights and authorized

them to challenge local zoning decisions in federal court.

The vigorous enforcement of these rights by private parties

is thus the primary method that Congress selected to

advance its goal of encouraging build-out of wireless

infrastructure.

Experience has shown that every available remedial

device and incentive to adhere to federal law is necessary

in this realm. While numerous local zoning authorities work

with wireless carriers to enable the delivery of new services,

there remain many post-1996 Act instances of egregious

local zoning authority misconduct.

27

* Telespectrum, Inc. v. Pub. Serv. Comm'n, 227 F.3d

414, 417-18 (6th Cir. 2000) (public service commission

could not justify denial of a permit to construct a

tower when: (1) all surrounding land was

agricultural; (2) “[w]ithin one thousand feet of the

site [were] the remains of a burned-out single family

residence, a yard containing ten to twelve

automobiles in varying states of disrepair, a home

built around a manufactured house and surrounded

by tires and debris, and [a] single family ranch

home”; (3) the provider offered evidence from

engineers indicating importance of particular site;

and (4) one of two objectors to the tower, who both

lived in the “single family ranch home,” challenged

tower based on a “personal belief” the tower would

negatively affect health and property values and on

a belief that “the tower could be located at four

[other] sites[,] showing photographs he had taken

from his car as evidence”).

Omnipoint Communications, Inc. v. Vill. of

Tarrytown, 302 F. Supp. 2d 205, 208-216, 225

(S.D.N.Y. 2004) (permit application to install flush-

mounted antennae on the side of a non-residential

building, where a competitor already had facilities,

was denied after eight separate public hearings

spanning nearly one year, including numerous and

repetitive requests on the part of the planning board

and its consultants to study alternative sites that

“would have ‘transform[ed] the application into a

self-perpetuating, endless odyssey’” (citations and

quotations omitted)).

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

F. Supp. 2d 166, 172-173 (D. Mass. 2002) (zoning

board demonstrated “such fixed hostility” to permit

applications that further applications would be

useless; zoning board noted zoning bylaws

precluded grant of application because there were

“other uses” for the property, such as residential

development, and Board member insisted that the

28

proposed tower was “nasty” and she “[didn’t] want

to look at it” (citations omitted)).

¢ Nextel Partners, Inc. v. Town of Amherst, 251

F. Supp. 2d 1187, 1194-1995, 1201 (W.D.N.Y 2003)

(zoning board “willfully disregarded the law”

through discrimination when it denied carrier's

request to place antennae on an existing tower that

had three other wireless facilities already on it, after

granting a similar application for another carrier two

months earlier).

¢ White Plains, 175 F. Supp. 2d at 701-707, 716-717

(after eight months, zoning board denied application

to construct a tower, causing carrier to lose lease on

tower site; zoning board disregarded detailed

evidence that the aesthetic and property value

impact of the tower would be low, including photo

simulations, crane studies, and evidence based on

actual home sales near cell towers, in favor of

“unsupported fears of local residents” and

“unsubstantiated opinions that property values

would decrease”; unfounded implications made by

zoning board of “chicanery...could be viewed as a

reflection of an unacceptable bias on the part of the

Board”).

These decisions are not “mistake[s] in implementing

the Act’s often complex requirements,” Pet. Br. 30, but are

bald denials of federal rights by officials acting under color

of state law. Congress established the protections in

§ 332(c)(7) to free wireless carriers from the “self-

perpetuating, endless odyssey” that local zoning regulators

can force carriers to endure. Tarrytown, 302 F. Supp. 2d at

225 (quotation omitted). There is no “distort[ion of] the

decision-making process” from the threat of such suits. Pet.

Br. 31. Rather, su*'s to enforce federal rights are vital to

deterring local ,uthorities such as those in Tarrytown,

Westford, Amherst, and White Plains from “willfully

disregard[ing] the law and wrongfully den[ying]” permit

applications. Amherst, 251 F. Supp. 2d at 1201.

29

The availability of § 1983 claims enhances this deterrent

effect. In particular, the “threat of attorneys’ fees could

influence zoning boards to ensure that their decisions

comply with the [1996 Act].” Smart SMR of New York v.

Zoning Comm'n of the Town of Stratford, 9 F. Supp. 2d 143,

148 (D. Conn. 1998). Clarifying that § 1983 remedies are

available would also encourage carriers to use this tool,

increasing private enforcement of congressional policy

under § 332. Suits containing § 1983 remedies help ensure

that zoning boards, who have ultimate control over whether

wireless carriers can build or refurbish national networks,

do not focus on the interests of their local constituents to

the exclusion of the “national interest” in expeditiously

building out a wireless communications infrastructure. H.R.

Rpt. 104-204, Pt. 1, at 94. Localities should not be allowed

to hold technological progress hostage. See Lincoln, 107 F.

Supp. 2d at 121 (“A universal technological advance cannot

be permanently stayed by a local stratagem devised to

preserve the character and beauty of a locality.”).

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

MICHAEL ALTSCHUL ANbDREw G. McBripe*

CELLULAR TELECOMMUNICATIONS HELGi C. WALKER

& INTERNET ASSOCIATION KATHRYN COMERFORD TODD

1400 16th Street, N.W. JOSHUA S. TURNER

Suite 600 Wicey Rein & Fietpinc LLP

Washington, D.C. 20036 1776 K Street, N.W.

(202) 785-0081 Washington, D.C. 20006

(202) 719-7000

Counsel for Amicus Curiae

* Counsel of Record

December 17, 2004