# Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A14

## Record

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

## Text

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
SORASMNONE GE TMBBEEER ono cc rescacsosccscccssssees 1
SOS og evcccccescvccccccsscucesecesvocaunen 1
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0003%3A14. Public record. Not legal advice.