Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

No. 03-1601

In the Supreme Court of the United States

CITY OF RANCHO PALOS VERDES, et al.,

Petitioners,

Vv.

MARK J. ABRAMS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF LOCAL GOVERNMENTS AND

RELATED ASSOCIATIONS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

JAMES N. HORWOOD Roy T. ENGLERT, JR.*

PETER J. HOPKINS MAX HUFFMAN

Spiegel & McDiarmid Robbins, Russell, Englert,

1333 New Hampshire Orseck & Untereiner LLP

Ave., N.W. 1801] K Stree:, N.W.

Washington, D.C. 20036 Suite 41]

(202) 879-4000 Washington, D.C. 20006

202) 775-4500

* Counsel of Record

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AL TEIEMD ccccccccccccccccceess

INTEREST OF THE AMICI] CURIAE ..............

EEE 9 60040008e6s0kenneneaeesdae

A. The Statutory ScROMeS .. 2... ccc ccccccces

B. The Proceedings in this Case..............

SUMMARY OF ARGUMENT ...................

EEE 66. cc606eddnescidedkudne eee

I. Section 332(c)(7) Does Not Create Rights

Enforceable Through a Cause of Action

ae

II. Sections 1983 and 1988 Are Irreconcilable

with the Comprehensive Remedial Scheme

Under Section 332(c)(7)(BYiv) ............

Il. Allowing Section 1983 Remedies in this

Context Produces Results that Congress Did

RED on ou ub hae ee eee

CED a0 senacdddéaddvnenceeneeaneee

(1)

ll

TABLE OF AUTHORITIES

Page(s)

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001). .......... 16

ATC Realty, LLC v. Town of Kingston, 303 F.3d 91

EE 20

AT&T Wireless PCS, Inc. v. City Council of Virginia

Beach, 155 F:3¢ 423 (4th Cir. 1998) ............. 18

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

1322 (11th Cir. 2000), vacated, 260 F.3d 1320

(11th Cir.) (en banc), dismissed, 264 F.3d 1314

De Te ee ue ecbecéec 4

Barnes v. Gorman, 536 U.S. 181 (2002) .............. 22

Blessing v. Freestone, 520 U.S. 329 (1997) .. 10, 13, 15,30

California v. Sierra Club, 451 U.S. 287 (1981) ........ 15

Cannon v. University of Chicago, 441 U.S. 677 (1979) .. 16

Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir.

RE a a Ee a a 6

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490

ee ee ena mencnn sees 28

Conboy v. AT&T Corp., 241 F.3d 242 (2d Cir. 2001) .... 17

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

Sa RE ES ac 22

ill

TABLE OF AUTHORITIES—Cont’d

Page(s)

Golden State Transit Corp. v. Los Angeles, 493 U.S.

ie hia. de wea kee ed 06s weieee 11, 15, 19

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

Howard v. City of Burlingame, 937 F.2d 1376 (9th

EE EE ee 17

Lechtner v. Brownyard, 679 F.2d 322 (3d Cir.1982) .... 17

Livadas v. Bradshaw, 512 U.S. 107 (1994) ............ 16

Maine v. Thiboutot, 448 U.S. 1 (1980) .......... 4, 26, 27

Middlesex Cty. Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) ..... 23, 24, 25, 26

Nextel Partners, Inc. vy. Kingston Township, 286

F.3d 687 (3d Cir. 2002) .............. 10, 12, 22, 23

O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994) ...... 27

Omnipoint Comm'ns. Enters., L.P. v. Zoning Hrg. Bd.

331 F.3d 386 (3d Cir. 2003) ................. 18-19

Omnipoint Comm'ns, Inc. v. Village of Tarrytown Plan-

ning Bd., 302 F. Supp. 2d 205 (S.D.N.Y. 2004)... 7,21

Primeco Personal Comm'ns, L.P. v. Village of Fox

Lake, 35 F. Supp. 2d 643 (N.D. Ill. 1999) ......... 18

Primeco Personal Comm'ns Ltd. P ‘ship v. City

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

iV

TABLE OF AUTHORITIES—Cont’d

Page(s)

Primeco Personal Comm'ns, Ltd. P''ship v. City

of Mequon, 242 F. Supp. 2d 567 (E.D. Wis. 2003) .. 12

Pennsylvania Pharmacists Ass'n v. Houstoun, 283

F.3d 531 (3d Cir. 2002) (en banc) ............... 16

Qwest Corp. v. City of Portland, 385 F.3d 1236

GED «cast esandussecuneesuckswusceus 9

Owest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th

Sh 05000 40% beeesnteekes uuiee 8, 15,19

Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d

SPE ED 04440 becbasendabseceuts 17, 30

Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942) ...... 17

Second Generation Props. L.P. v. Town of Pelham,

Dad Oe ee CG BUD v5 Fic kab ed edeccceens 18

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ....... 4

Smith v. Robinson, 468 U.S. 992 (1984) .............. 24

Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d

Re Us 4.0-04450400né0nseeee eae 18

Three Rivers Center for Indep. Living, Inc. v.

Housing Auth. of the City of Pittsburgh,

382 F.3d 412 (3d Cir. 2004) ........... 13, 15, 16, 17

Town of Amherst v. Omnipoint Comm'ns Enters., Inc.,

eee gi eer re ere 19

Vv

TABLE OF AUTHORITIES—Cont’d

Page(s)

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

Supervisors, 245 F. Supp. 2d 817 (W.D. Va.),

rev'd, 343 F.3d 262 (4th Cir. 2003) ............ 7,21

Verizon Comm ns Inc. v. Law Offices of Curtis V.

Trinko, LLP, 124 S. Ct. 872 (2004) ........... 12, 26

VoiceStream Minneapolis, Inc. v. St. Croix Cty., 342

ho re pen 7

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

Se, Be Re es I 6s vaec bncectesecuns 7

Wright v. City of Roanoke Redev. & Hous.

Be a es NE os hock ceuececasdedness 17

Statutes, Regulations, and Rules:

Ps PE. Ga vhdpccncn dun eswndes i ceaseenceen 8

Fe O RPE 6. v6-0seendcesccensccens 24

PG EY doh c cedcnkdunthernwiesawew aks passim

gk de | Se Serr ear passim

GF ee A hs ks wuislbreanedatasccusecenai passim

gp er er re re 5

Oy Gn ED dc wth be bs oe eukacddennescomenwds

47 U.S.C. § 276(b)(1)(A) .........--- wadeunarens 16

v1

TABLE OF AUTHORITIES—Cont’d

Page(s)

Se Ges EE oo cccecakaevudbeeoecewes passim

og 8 a a ae 5, 20, 21

ae ris Oe or ao a A passim

47 U.S.C. § S32 TBA)... 2 wee eee 9,11, 18, 28

Se Gon OF TIED occ wb ce ada bectcccece passim

ail. Gar Pe PUI cds ccc ccnececcucuennes 28

a gS 12, 22, 28

IND. CODE § 36-7-4-1003(a) ............ ccc cece eee 20

MASS. GEN. LAWS ANN. ch. 249 § 5 ................. 20

a Oe IIE oo cc cnccounscccoecess 20-21

Pub. L. No. 104-104, 110 Stat. 56 (1996) .............. 5

Pub. L. No. 104-104, § 601(b)(1), reprinted at 47

U.S.C. § 152, historical and statutory notes ........ 2

Pub. L. No. 104-104, § 601(c)(1), reprinted at 47

U.S.C. § 152, historical and statutory notes 5, 11, 27,28

Miscellaneous:

141 CONG. REC. $8170 (daily ed. June 12, 1995)

(statement of Sen. Feinstein) ................... 30

Vill

TABLE OF AUTHORITIES—Cont’d

Page(s)

141 CONG. REC. $8170 (daily ed. June 14, 1995)

(statement of Sen. Gortom) ............2.eeeeeee 30

Brett D. Baber, For Every Right There Is a Remedy:

Civil Rights Litigation Pursuant to 42 U.S.C. §

OR Pe ere 10

Bnef for the United States as Amicus Cunae Support-

ing Petitioners, Gonzaga Univ. v. Doe, 536 U.S.

273 (2003) (No. 01-679), available at http://www.

usdoj.gov/osg/bnefs/2002/3mer/1ami/2001-0679.

EE 5 bus 600 ks ckaneAueeteeeeeeeekees 14

Harry A. Blackmun, Section 1983 and Federal Protec-

tion of Individual Rights — Will the Statute Remain

Alive or Fade Away?, 60 N.Y.U. L. REV. 1 (1985) .. 26

H.R. CONF. REP. No. 104-458 (1996), reprinted in

RR OEE 60es viens cnencens 4, 6, 8, 20

Kevin M. O'Neill, Note, 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. &

PT Rc PEE :cddoessenbewceausdes 29

Bruce A. Peterson & Mark E. Van Der Weide, Suscep-

tible to Faulty Analysis: United States v. Gaubert

and the Resurrection of Federal Sovereign Im-

munity, 72 NOTRE DAME L. REV. 447 (1997) ....... 27

Vill

TABLE OF AUTHORITIES—Cont’d

Page(s)

Timothy J. Tryniecki, Cellular Tower Siting Jurispru-

dence Under the Telecommunications Act of 1996

— The First Five Years, 37 REAL PROP. PROB. &

Wee Pe Es os okay cecseeeeces ttc 18, 28

BRIEF OF LOCAL GOVERNMENTS AND

RELATED ASSOCIATIONS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

Amicus Michigan Coalition To Protect Public Rights-Of-

Way (PROTEC) was formed in 1996 by several Michigan cities

interested in protecting their citizens’ control over public nghts-

of-way and their nght to receive fair compensation for use of

public property. Since PROTEC’s formation, the residents and

businesses of numerous cities, villages, and townships have ben-

efited from the allied efforts of the coalition. PROTEC repre-

sents jurisdictions of all sizes through coordinated lobbying and

litigation efforts at both the state and federal levels.

Amicus Texas Cities Coalition for Utilities Issues

(TCCFUI) is an unincorporated nonprofit association of Texas

cities concerned with issues involving telecommunications, gas,

and electric utilities. TCCFUI has as members more than 100

cities in Texas, including many of the State’s largest cities.

TCCFUI represents the interests of its member cities in part by

participating in legal, legislative, and regulatory activity affect-

ing the nghts of cities with respect to nghts-of-way and utility

issues.

Amici County of San Diego, California, City of San Diego,

California, City of Los Angeles, California, City and County of

San Francisco, California, City of Santa Fe, New Mexico, and

City of Tucson, Anzona, are local governments as that term is

' 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 of the

Rules of this Court, amici state that no counsel for a party has written this

brief in whole or in part and that no person or entity, other than the amici

curiae, their members, or their counsel, has made a monetary contribu-

tion to the preparation or submission of this brief.

2

used throughout the Communications Act. See, e.g., 47 U.S.C.

§ 253(c). Amici have been, or may be in the future, defendants

in litigation under 42 U.S.C. §§ 1983 & 1988, seeking damages

and attorneys’ fees for “violations” of federal statutes.

Amicus California State Association of Counties (CSAC)

is a non-profit corporation, with membership consisting of the

58 counties in the State of California. CSAC sponsors a Litiga-

tion Coordination Program, which is administered by the

County Counsels’ Association of California and is overseen by

the Association’s Litigation Overview Committee, composed of

county counsel throughout the State. The Litigation Overview

Committee monitors litigation of concern to counties statewide

and has determined that this case is a matter affecting all coun-

ties in California.

Amicus League of California Cities is an association of 474

cities united in promoting the general welfare of cities and their

citizens. The League is advised by its Legal Advocacy

Committee, which is composed of 24 city attorneys representing

all 16 divisions of the League from all parts of the State. The

committee monitors appellate litigation affecting municipalities

and identifies those that are of statewide significance.

Amicus Nevada Association of Counties (NACO) is a non-

partisan, nonprofit corporation founded in 1924 and composed

of Nevada’s county governments. NACO represents the inter-

ests of its members before all branches of both the state and the

federal government.

Amicus League of Oregon Cities (LOC) is a voluntary asso-

ciation of 239 incorporated cities throughout the State of Ore-

gon. LOC was founded in 1925 and pursues a core mission of

working for strong, livable communities. In pursuit of its mis-

sion, LOC represents the common interests of its members on

issues of critical concern to cities.

Amicus Association of Oregon Counties (AOC) is a

volunteer-membership organization that represents all 36

3

Oregon counties. Its mission is to strengthen county

government’s ability to serve people.

Amici or their members are local municipal government or-

ganizations with authority that has been expressly preserved by

the Communications Act—including the responsibility for

making decisions on applications for permits to construet—

wireless service facilities (see 47 U.S.C. § 332(c)(7)) and

managing use of the public rights-of-way by

telecommunications carriers (see id. § 253). Under the

reasoning of the court of appeals below, amici or their members

potentially are subject to damages liability and attorneys’ fees

for exercising their reserved powers in ways that are later

determined to violate the Communications Act. Such a regime

threatens to impose crippling damage awards and attorneys’ fees

on local governments that can ill afford even the relatively

minor expenses of defending against litigation. Because of their

substantial experience with the specific legal issues in this case,

their experience defending against suits under 42 U.S.C. § 1983

in general, and their understanding of the broader ramifications

of the rule announced by the Ninth Circuit, amici are well

situated to brief the Court on the merits of this case.

STATEMENT

The issue in this case is whether a cause of action under 42

U.S.C. § 1983, with the attendant attorneys’ fees provision, 42

U.S.C. § 1988, is available when Congress has passed a pre-

emptive statutory scheme with comprehensive remedial provi-

sions as it did in the enactment of Section 704 of the Telecom-

munications Act of 1996 (TCA), 47 U.S.C. § 332(c)(7). Section

704 provides for expedited judicial appellate review of local

zoning decisions to ensure compliance by state and local gov-

ernments with its provisions. The section also provides for ex-

pedited judicial review for “[a]ny person adversely affected by

any final action or failure to act by a State or local government,”

and in some circumstances (not relevant here) provides a nght

to “petition the [Federal Communications] Commission for re-

lief.” Id. § 332(c)(7)(B)(v).

4

The district court held that the scheme of judicial review

granted it “broad authority to fas[hio]n an appropriate remedy

that would bring expedited relief.” Pet. App. 32a. And the

Third Circuit earlier concluded that Section 332(c)(7)(B)(v)

“provides judicial remedies that incorporate both notable bene-

fits” —including expedited judicial review—“and corresponding

limitations” —such as a short limitation period and no provision

for damages or attorneys’ fees. The court of appeals below

became the first circuit to hold that the Communications Act’s

remedial scheme—with its “benefits” and “limitations” —would

give way to a cause of action under Section 1983.’

The result reached by the court of appeals below is wrong

because it eviscerates the congressional intent behind Section

332(c)(7)(B)(v); “remove[s] * * * completely the protection of

the ‘American Rule’” governing attorneys’ fees (Maine v.

Thiboutot, 448 U.S. 1, 25 (1980) (Powell, J., dissenting)); and

“cannot be reconciled with the purposes for which § 1983 was

enacted” (ibid.). “[I]t is only violations of rights, not laws,

which give rise to § 1983 actions” (Gonzaga Univ. v. Doe, 536

U.S. 273, 283 (2002)), and the exceptionally weak founda-

tion—if any—for concluding that Section 332(c)(7) confers pri-

vate nghts is all the more reason why Section 1983 remedies

should not be engrafted onto it.

A. The Statutory Scheme

Congress passed the TCA, Pub. L. No. 104-104, 110 Stat.

56 (1996), to amend the Communications Act of 1934 and

“accelerate rapidly pnvate sector deployment of advanced com-

munications to all Americans” by providing for a “pro-

competitive, de-regulatory national policy framework.” H.R.

CONF. REP. No. 104-458, at 113 (1996), reprinted in 1996

U.S.C.C.A.N. 124, 124. That goal was accomplished in part by

> A panel of the Eleventh Circuit reached the same result, but its

decision was vacated. See AT&T Wireless PCS, Inc. v. City of Atlanta,

210 F.3d 1322 (11th Cir. 2000), vacated, 260 F.3d 1320 (11th Cir.) (en

banc), dismissed following settlement, 264 F.3d 1314 (2001).

|

!

5

selectively preempting state and local laws and regulations that

Congress determined were contrary to the purposes of the

Communications Act. See, e.g., 47 U.S.C. § 332(c)(7)(B)

(“Limitations”); id. § 253(a) (no prohibition on the ability of

any entity to provide telecommunications service).

At the same time, Congress took great pains to preserve

state and local authority when it was not inconsistent with the

purposes of the Communications Act. See, e.g., 47 U.S.C.

§ 332(c)(7)(A) (“[nJothing in this chapter shall limit or affect

the authority of a State or local government”); id. § 253(c)

(“[n]othing in this section affects the authority of a State or local

government to manage the public nghts-of-way or to require

fair and reasonable compensation from telecommunications

providers”). The preservation of state and local authority was

also reflected in a general “savings clause,” which states:

(1) No implied effect. - This Act and the amendments

made by this Act shall not be construed to modify, impair,

or supersede Federal, State, or local law unless expressly so

provided in such Act or amendments.

Pub. L. No. 104-104, § 601(c)(1), reprinted at 47 U.S.C. § 152,

historical and statutory notes.

1. Section 332(c)(7) reads, in pertinent part:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this

chapter shall limit or affect the authority of a State or

local government or instrumentality thereof over deci-

sions regarding the placement, construction, and modi-

fication of personal wireless service facilities.

(B) Limitations

(i) The regulation of the placement, construc-

tion, and modification of personal wireless service

6

facilities by any State or local government or

instrumentality thereof—

** *

(II) shall not prohibit or have the effect of

prohibiting the provision of personal wireless

services.

** *

(111) Any decision by a State or local government

or instrumentality thereof to deny a request to

place, construct, or modify personal wireless ser-

vice facilities shall be * * * supported by

substantial evidence * * *.

(iv) No State or local government or

instrumentality thereof may regulate the

placement, construction, and modification of

personal wireless service facilities on the basis of

the environmental effects of radio frequency

emissions to the extent that such facilities comply

with the Commission’s regulations concerning

such emissions.

(v) Any person adversely affected by any final

action or failure to act by a State or local govern-

ment or any instrumentality thereof that is incon-

sistent with this subparagraph may, within 30 days

* * * commence an action in any court of

competent jurisdiction. The court shall hear and

decide such action on an expedited basis. Any

person adversely affected by an act or failure to

act * * * that is inconsistent with clause (iv) may

petition the Commission for relief.

The section is unambiguously a preemption provision, but

it also precludes preemption by “preserv[ing] local zoning auth-

ority” except in enumerated circumstances. 1996 U.S.C.C.A.N.

at 222 (section “preserves the authority of state and local

7

governments over zoning and land use matters except in the

limited circumstances set forth”); see also VoiceStream Minne-

apolis, Inc. v. St. Croix Cty., 342 F.3d 818, 829 (7th Cir. 2003)

(local governments “retain the authority to regulate the siting of

wireless telecommunications facilities” subject to “procedural

and substantive limitations” found in Section 332(c)(7)(B)(i)-

(iv)). Congress’s intent could not be any clearer: the inroads to

state and local regulatory authority are only those expressly pro-

vided in Section 332(c)(7). The statutory language “except as

provided in this paragraph” (Section 332(c)(7)(A)) plainly

precludes the importation of liability under Sections 1983 and

1988.

Section 332(c)(7)(B)(v) enables an aggrieved party to seek

a remedy in federal court if a state or local zoning authority

makes a decision that exceeds the limitations set out in clauses

(i) through (iv) of subparagraph (B). It expressly permits

federal court review and requires that such review be conducted

“on an expedited basis.” Section 332(c)(7)(B)(v).

The history of litigation under clause (v) demonstrates that

it has proved effective in achieving its purpose. Courts—in-

cluding the district court in this case—have regularly granted

injunctions when remedying violations of Section 332(c)(7)(B).

See Pet. App. 13a-15a; see also, e.g., Cellular Tel. Co. v. Town

of Oyster Bay, 166 F.3d 490 (2d Cir. 1999); Omnipoint

Comm ns, Inc. v. Village of Tarrytown Planning Bd., 302 F.

Supp. 2d 205, 226 (S.D.N.Y. 2004); USCOC of Va. RA #3, Inc.

v. Montgomery Cty. Bd. of Supervisors, 245 F. Supp. 2d 817

(W.D. Va.), rev’d, 343 F.3d 262 (4th Cir. 2003). In cases in

which the local government’s zoning decision is not preempted

by Section 332(c)(7)(B), reviewing courts reach the opposite

result. See, e.g., Voice Stream PCS I, LLC v. City of Hillsboro,

301 F. Supp. 2d 1251 (D. Or. 2004). No doubt can exist that

parties have effective means for federal court review.

2. Other provisions of the Communications Act also

operate to preempt state and local regulatory authority in the

telecom arena. For example, 47 U.S.C. § 253—a provision

8

governing state and local nght-of-way regulations and com-

pensation for use of the right-of-way, the operation of which is

very important to amici and their members—reads in part:

(a) In general

No State or local statute or regulation, or other State or

local legal requirement, may prohibit or have the effect of

prohibiting the ability of any entity to provide any interstate

or intrastate telecommunications service.

** *

(c) State and-local government authority

Nothing in this section affects the authority of a State or

local government to manage the public nghts-of-way or to

require fair and reasonable compensation from telecommu-

nications providers * * *.

(d) Preemption

If * * * the Commission determines that a State or local

government has permitted or imposed any statute,

regulation, or legal requirement that violates subsection (a)

or (b) of this section, the Commission shall preempt the

enforcement of such statute, regulation, or legal

requirement, to the extent necessary * * *.

The section “is intended to remove all barriers to entry,” and

“preempts” regulations that undermine that purpose, while also

providing a safe harbor for actions of state and local

governments regarding management of rights-of-way and

requiring fair and reasonable compensation. 1996 U.S.C.C.A.N.

at 138. It therefore “focuses on limiting the actions of local

government.” Qwest Corp. v. City of Santa Fe, 380 F.3d 1258,

1265 (10th Cir. 2004).

Like Section 332(c)(7), Section 253 accomplishes its pur-

pose. Plaintiffs have brought preemption challenges to state or

local regulations with jurisdiction premised on 28 U.S.C.

§ 1331. See City of Santa Fe, 380 F.3d at 1264. “‘A plaintiff

9

who seeks injunctive relief from state regulation, on the ground

that such regulation is pre-empted by a federal statute which, by

virtue of the Supremacy Clause of the Constitution, must

prevail, thus presents a federal question * * *.’” Jbid. (quoting

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983)); see

also Qwest Corp. v. City of Portland, 385 F.3d 1236 (9th Cir.

2004) (remanding to the distnct court for additional

consideration of the preemption issue).

B. The Proceedings in this Case

Respondent is an individual who constructed a wireless-

service antenna more than 50 feet tall on his property—although

his permit allowed only 40 feet, and required nighttime

“nesting” at 30 feet in height. Also in violation of the permit,

which allowed only amateur use, respondent engaged in both

amateur and commercial uses. When respondent was enjoined

to comply with the amateur use restriction, he applied for a

conditional use permit, which would allow commercial use as

well. Pet. App. 2a. The City Council of Rancho Palos Verdes

denied respondent’s application. Pet. App. 2a; see id. at 23a.

During the administrative proceedings, respondent’s counsel

recognized that the purpose of Section 332(c)(7)(B) was to

protect “the end user of the services,” not the “individual who

has a license.” Admin. Rec. 54.

1. As was his nght under the Communications Act (see

Section 332(c)(7)(B)(v)), respondent appealed the city council’s

denial to federal district court. Pet. App. 16a-17a. He appended

a claim for money damages under 42 U.S.C. § 1983. Pet. App.

17a. The district court held that the denial of a conditional use

permit violated the Communications Act, because the decision

was not “supported by substantial evidence contained in the

written record” (Section 332(c)(7)(B){ili)). Pei. App. 30a. The

court then noted its “broad authority to fas[hio]n an appropriate

remedy that would bring expedited relief” to respondent. /d. at

32a (citing authorities granting mandamus and injunctive relief).

The court granted complete injunctive relief to respondent,

ordering petitioners within 14 days “to adopt a new resolution

10

granting plaintiff a Conditional Use Permit,” and retained

jurisdiction to hear future disputes in connection with the

injunction. Jd. at 14a-15a. The district court held, however,

after ordering briefing on the question, that “the remedies

available to plaintiff are subsumed under the TCA, and that

damages pursuant to 42 U.S.C. § 1983 are not available to plain-

tiff.” Jd. at 14a.

2. Respondent appealed the denial of damages under Sec-

tion 1983. The Ninth Circuit held that respondent had the bur-

den to establish the violation of a federal “nght.” Pet. App. 3a-

4a. The court then held that there was a rebuttable presumption

of entitlement to remedies under Section 1983. Jbid. In the

court of appeals’ view, the remedies available to a plaintiff

claiming that the denial of a permit violated Section

332(c)(7)(B)—a nght of action in federal court on an expedited

basis and a nght to petition the Federal Communications

Commission for relief—were not adequately “comprehensive”

to “‘close the door on § 1983 liability.”” Jd. at 4a-5a (quoting

Blessing v. Freestone, 520 U.S. 329, 348 (1997)). The court of

appeals apparently would have preferred that the

Communications Act contain “remedies such as damages,

injunctions, attorney’s fees, or costs.” Pet. App. 5a.* The court

of appeals then considered the “savings” clause (Sec-

> Because respondent was not the “prevailing party” on the Section

1983 claim under the district court’s holding, he had no entitlement to

attomeys’ fees under 42 U.S.C. § 1988. And because “[i]n contrast to a

plaintiff who prevails, defendants are severely limited as to when they

may obtain attorney’s fees under Section 1988” (Brett D. Baber, For

Every Right There Is a Remedy: Civil Rights Litigation Pursuant to 42

U.S.C. § 1983, 9 ME. B. J. 226, 233 (1994)), petitioners had no way to

recover the expenses incurred in litigating the Section 1983 claim.

* The court rejected the contrary holding of the Third Circuit in

Nextel Partners, Inc. v. Kingston Township, 286 F.3d 687 (3d Cir. 2002),

arguing that “the TCA contains procedural, rather than remedial,

provisions.” Pet. App. 8a-9a (emphasis in original).

1]

tion 601(c)(1)), which, it held, demonstrated Congress’s express

intent to preserve the Section 1983 remedy. Pet. App. 10a.

SUMMARY OF ARGUMENT

The Ninth Circuit erred in concluding that respondent

could assert a Section 1983 claim, with attorneys’ fees under

Section 1988 if the claim is successful, based on the fact that

petitioners’ decision to deny respondent’s application for a con-

ditional use permit was held preempted by Section

332(c)(7)(B)iii). No basis exists for a Section 1983 claim here.

I. A claim under Section 1983 for a violation of a federal

statute exists only if the statute creates nghts enforceable under

that section. The question that has divided the courts of appeals

is whether the remedial scheme of Section 332(c)(7) impliedly

forecloses resort to Section 1983. But—as the Solicitor General

correctly observed in his brief in the Gonzaga case—that ques-

tion should not be divorced from the question whether the stat-

ute creates private nghts, for the entire inquiry is one into con-

gressional intent. Whether a federal statute creates a “nght” en-

forceable under Section 1983 turns on three factors.

Applying the first factor—whether the statute was intended

to benefit the putative plaintiff (see Gonzaga, 536 U.S. at

284)—demonstrates that there is no such nght under Section

332(c)(7). That is especially the case where, as here, the statu-

tory scheme in question is a preemption scheme. See Golden

State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989).

The second factor, which asks whether the nght asserted under

the statute is sufficiently clear to be enforced in court, also

militates against a finding of a “right” here.

Il. Even if Section 332(c)(7) is determined to create

“rights,” its remedial scheme is fully comprehensive.

Permitting suit under Section 1983 frustrates—even

eviscerates—the scheme Congress created. The injunctive

remedy is a natural outgrowth of the body of zoning law that

underlies Section 332(c)(7), in which expedited judicial review

and remedies limited to injunctive relief are the norm and

12

damages remedies often are prohibited by statute. It is thus

natural to interpret Section 332(c)(7) not to permit damages or

attorneys’ fee awards. The section is enforced instead by

injunctive relief. See, e.g., Primeco Personal Comm'ns Ltd.

P'ship v. City of Mequon, 242 F. Supp. 2d 567, 582 (E.D. Wis.)

(“Most courts have held that the appropriate remedy [under

Section 332(c)(7)(B)(v)] is an order to issue the relevant

permit.”), aff'd, 352 F.3d 1147 (7th Cir. 2003). Additionally, the

30-day limitation penod and requirement of expedited review

are “notable benefits and corresponding limitations” (Nextel

Partners, Inc., 286 F.3d at 694) that would be undermined by

permitting suit under Section 1983.

The savings clause supports this conclusion. As this Court

recently has held, a savings clause “does not create new claims

that go beyond” the claims that otherwise would exist. Verizon

Comm 'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 124 S.

Ct. 872, 878 (2004). And the savings clause preserves “State

and local law” just as it does federal law. California state

law—like that of many other States—does not permit the

imposition of damages or attorneys’ fees in a suit based on a

discretionary permitting decision. See CAL. GOV’T CODE

§ 818.4. The Section 1983 remedy undermines those laws.

Il]. The harms attendant on overuse of Section 1983

counsel against permitting its use in this statutory scheme. Liti-

gation under Section 332(c)(7) and the similar Section 253

(applicable to nght-of-way management and compensation) al-

ready is substantial and very expensive, and promises to in-

crease if damages remedies and attorneys’ fees are allowed.

The local government defendants in these cases (usually small

cities and towns) have limited resources and often are barely

able to afford the cost to defend the lawsuit. The natural result

of the Ninth Circuit’s approach would be to encourage munici-

palities to grant permits that maybe should not be granted, rather

than run the nsk of incurnng crippling litigation expenses.

Nothing indicates that Congress had such a one-sided result in

13

mind when it expressly preserved local government authority to

continue to make the zoning decisions they always have made.

ARGUMENT

It is nonsensical to conclude, as the Ninth Circuit panel did

below, that by specifically failing to provide for damages and

attorneys’ fees in a suit challenging a zoning decision as pre-

empted by the Communications Act, Congress meant for those

remedies to be available through Section 1983 and Section

1988. The holding below boils down to this: if the remedies

Congress made available under a federal statute are not the kind

of remedies that a court thinks sufficient, it is appropriate to

permit suit under Section 1983. If that rule prevails, Congress

will be required in the future expressly to disavow enforcement

through Section 1983—a result that cannot be reconciled with

this Court’s instruction that the necessary inquiry is “whether

Congress intended to create a federal right.” Gonzaga, 536

U.S. at 283 (emphasis in original).

Instead, in this case the Court should apply the

rule—which it unanimously accepted in 1997—that to sue under

Section 1983 plaintiffs are required to assert the violation of a

federal right, not merely a violation of federal law. Blessing,

520 U.S. at 340. Even if they do so, Section 1983 remedies are

available only to the extent that they are not inconsistent with

the statutory scheme. /d. at 341; see also Three Rivers Center

for Indep. Living, Inc. v. Housing Auth. of the City of

Pittsburgh, 382 F.3d 412, 419-422 (3d Cir. 2004).

I. Section 332(c)(7) Does Not Create Rights

Enforceable Through a Cause of Action Under

Section 1983

The court of appeals held “that the TCA clearly grants en-

forceable ‘rights’” (although the question does not seem to have

been disputed by the parties). Pet. App. 4a (citing Blessing, 520

U.S. at 340-341). Likewise, the Seventh Circuit held in Prime-

co Personal Comm'ns Ltd. P ‘ship v. City of Mequon, 352 F.3d

1147, 1152 (7th Cir. 2003), also without analysis: “local

14

officials violated a federal nght of the plaintiff.” But, contrary

to these conclusions, an analysis of Section 332(c)(7) demon-

strates that it is by no means clear that respondent has nghts

enforceable under Section 1983. As respondent’s counsel

conceded, “the focus of the statute” is “to protect the end user

of the services”—not “to protect the individual who has a

license.” Admin. Rec. 54.

The “nights” issue, though apparently not disputed below,

is an indispensable corollary of the question whether Section

1983 remedies are available under the Communications Act. As

the Solicitor General has argued:

Because the “key to the [Section 1983] inquiry is the intent

of the legisTafure,” the less clear the evidence that Congress

intended to create private nghts, the more carefully the

court should scrutinize the impact of a Section 1983 action

on the enforcement mechanisms that Congress expressly

provided.

Brief for the United States as Amicus Curiae Supporting Peti-

tioners, Gonzaga Univ. v. Doe, 536 U.S. 273 (2003) (No. 01-

679), at 23-24 (citation omitted), available at http://www.usdo}.

gov/osg/briefs/2002/3mer/1ami/2001-0679.mer.ami.pdf. The

view of the Third and Seventh Circuits that the Section 1983

and 1988 remedies are incompatible with the comprehensive

remedial scheme under Section 332(c)(7)(B)(v) is bolstered by

a correct analysis of the private-right issue.°

* The issue of rights under the Communications Act is particularly

important because it has the potential to affect numerous similar statutory

provisions. For example, although it is not at issue in this case, Sec-

tion 253 also is a preemption provision that is sometimes erroneously in-

voked in disputes over tower siting. Although the Court need not address

the interplay of Section 253 and Section 1983 in a case in which Sec-

tion 253 is not directly at issue, it is important for the Court to understand

the Section 253 litigation, because the reasoning of the lower courts in

some of the Section 253 cases may help shed light on the issues that are

directly presented here. Like Section 332(c)(7), Section 253 preserves

15

Whether a federal statute creates a ight enforceable under

Section 1983 turns on an evaluation of three factors:

First, Congress must have intended that the provision in

question benefit the plaintiff. Second, the plaintiff must

demonstrate that the nght assertedly protected by the stat-

ute is not so “vague and amorphous” that its enforcement

would strain judicial competence. Third, the statute must

unambiguously impose a binding obligation on the States.

Blessing, 520 U.S. at 340-341 (citations omitted).° Importantly,

not every violation of a federal statute constitutes a deprivation

of a federal right. Golden State, 493 U.S. at 106. “Personal

nights are those intentionally and ‘unambiguously conferred’

through ‘rights-creating’ language.” Three Rivers, 382 F.3d at

419-420 (quoting Gonzaga, 536 U.S. at 283, 284).

The first Blessing factor is perhaps the most important.

This Court recently has elucidated that rights-creating language

in a federal statute must “unmistakabl[y] focus on the benefited

class.” Gonzaga, 536 U.S. at 284. it is not enough that the Act

create a class of beneficiaries. “Congress” must have “intended

to confer federal nghts upon those beneficiaries” for a Section

1983 suit to be available. California v. Sierra Club, 451 U.S.

287, 294 (1981). The fact that an individual, like respondent, is

benefited, does not mean that Congress intended to confer on

some state and local regulatory authority—most notably to manage the

public rights-of-way. The section also preempts certain state or local

regulations without mentioning what parties are inter. =d to benefit from

the preemption. As the Tenth Circuit recently observed in holding that

a telecommunications carrier suing under Section 253 did not have a

remedy under Section 1983: “The language * * * focuses on limiting the

actions of local government not on protecting a benefitted class.” City of

Santa Fe, 380 F.3d at 1265. Despite some differences between

Section 332(c)(7) and Section 253 (see 380 F.3d at 1267), the same

reasoning should be applied here.

* — We do not dispute that the third factor is met, but for the reasons

given below the first and second factors are not.

16

that individual a right to sue under Section 1983. “(T]he ques-

tion whether a statute is intended to benefit particular plaintiffs

is quite different from the question whether the statute in fact

benefits those plaintiffs * * *.”” Pennsylvania Pharmacists Ass'n

v. Houstoun, 283 F.3d £31. 535 (3d Cir. 2002) (en banc); see

also Three Rivers, 382 ¥ 3c at 419.

This Court requires that the statute contain “rights-creating

language.” See Cannon v. University of Chicago, 441 U.S. 677,

693 n.13 (1979). In Cannon, the statutes being interpreted

spoke directly to the putative plaintiff. See id. at 693-694. In

Golden State, the Court held that the National Labor Relations

Act (NLRA) creates rights. That Act contained this policy

statement: “‘It is the purpose and policy of this chapter to pre-

scribe the legitimate nghts of both employees and employers in

their relations affecting commerce.’” 493 U.S. at 110 n.6; see

also Livadas v. Bradshaw, 512 U.S. 107, 133-134 (1994). But

nghts-creating language is not held to exist when the statute

“focus[es] on the person regulated rather than the individuals

protected.” Alexander v. Sandoval, 532 U.S. 275, 289 (2001).

The reference in Section 332(c)(7)(B)(v) to “[a]ny person

adversely affected” does not demonstrate a nghts-creating focus

on would-be antenna builders, but—through its generality—just

the opposite. When Congress wished to identify a specific class

of beneficianes and use rights-creating language in the Commu-

nications Act, it knew how to do so. See, e.g., 47 U.S.C.

§ 276(b)(1)(A) (“the Commission shall * * * establish a per call

compensation plan to ensure that a// payphone service providers

are fairly compensated for each and every completed intrastate

and interstate call”) (emphasis added).

Unlike Section 276(b)(1)(A), Section 332(c)(7)(B) does not

“unmistakably focus” on respondent, or on a class of potential

plaintiffs of which he is a member. Rather, the subparagraph

focuses on state and local governments. It specifically lists four

things that “any State or local government” must, or must not,

do, without reference to what person or entity is the intended

beneficiary of these requirements and prohibitions. In fact, the

17

only clause of subparagraph (B) that references potential plain-

tiffs—clause (v)—states a scheme for judicial review that is

alternative to, and inimical to, the Section 1983 claim

respondent presses here. See pp. 24-28, infra.

In Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305

(D.N.M. 2002), aff'd in part, rev'd in part, 380 F.3d 1258 (10th

Cir. 2004), the court noted: “Section 253 was enacted as part of

a series of amendments to the Communications Act of 1934. As

originally enacted, ““‘[t]he Communications Act of 1934 did not

create new private nghts.””’ Thus, if Congress had intended Sec-

tion 253 to create new private rights that could be enforced

under Section 1983, one would have expected this change to be

noted more clearly.” /d. at 1315 (quoting Howard v. City of

Burlingame, 937 F.2d 1376, 1379 (9th Cir. 1991), in turn quot-

ing Scripps-Howard Radio v. FCC, 316 U.S. 4, 14 (1942)).

That analysis applies with equal force to Section 332(c)(7)(B).

Furthermore, the reason why Section 332(c)(7)(B) places

some constraints on local zoning decisions is not because those

who wish to erect antennas—unlike victims of discrimination

(Cannon) or low-income individuals in need of federal

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

479 U.S. 418 (1987))—are people Congress particularly wished

to protect. Rather, like many other provisions of the Com-

munications Act, Section 332(c)(7)(B) seeks to advance the

public interest.’ Section 332(c)(7)(B) strives to prevent unrea-

soned or unreasonable zoning decisions from interfering with

the building of the infrastructure necessary to support the

Nation’s system of wireless communications. Those who build

that infrastructure are beneficiaries of Section 332(c)(7)(B), but

not all beneficiaries of a statute are given personal rights of the

’ _ “{T]he purpose of the Telecommunications Act is not to benefit

ind:vidual plaintiffs but to ‘protect the public interest in communica-

tions.”"” Conboy v. AT&T Corp., 241 F.3d 242, 254 (2d Cir. 2001)

(quoting Lechiner v. Brownyard, 679 F.2d 322, 327 (3d Cir.1982), in

turn quoting Scripps-Howard Radio, 316 U.S. at 14)).

18

sort that can be enforced under Section 1983 or an implied

private right of action. See Three Rivers, 382 F.3d at 419.

The application of the second Blessing factor in this case

also counsels against construing the Communications Act to

grant rights enforceable under Section 1983. More than one

provision of Section 332(c)(7)(B) implicates this factor. This

case was decided under the “substantial evidence” standard of

Section 332(c)(7)(B)(ili) (Pet. App. 25a-26a), a notoriously

indefinite standard of review found throughout the body of

federal administrative law. “As early as 1999, one court felt

there was ‘little agreement among the courts as to the meaning

of substantial evidence under the TCA.”” Timothy J. Tryniecki,

Cellular Tower Siting Jurisprudence Under the Telecommunica-

tions Act of 1996 — The First Five Years, 37 REAL PROP. PROB.

& TR. J. 271, 279 (2002) (quoting Primeco Personal Comm ns,

L.P. v. Village of Fox Lake, 35 F. Supp. 2d 643, 645 (N.D. IIl.

1999)). The standard has variously been descnbed to mean

“more than a mere scintilla, but less than a preponderance”; “not

a large or considerable amount of evidence”; and “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Tryniecki, supra, 37 REAL PROP. PROB.

& TR. J. at 279 (internal quotations omitted).

Other cases arise under Section 332(c)(7)(B)(i(I). The

circuits are split on how to interpret the preemption of zoning

decisions that “have the effect of prohibiting the provision of

personal wireless services.” Jbid. In AT&T Wireless PCS, Inc.

v. City Council of Virginia Beach, 155 F.3d 423, 428-429 (4th

Cir. 1998), the Fourth Circuit held that sub-clause (II) applied

only to blanket bans on wireless infrastructure, not to individual

zoning decisions. In Sprint Spectrum, L.P. v. Willoth, 176 F.3d

630, 642-643 (2d Cir. 1999), the Second Circuit adopted a more

liberal interpretation, holding that it applied in any case in

which a remote user lacked access to wireless facilities. See

also Omnipoint Comm ‘ns Enters., L.P. v. Zoning Hrg. Bd., 331

F.3d 386, 397-398 (3d Cir. 2003). Finally, in Second Genera-

tion Props. L.P. v. Town of Pelham, 313 F.3d 620, 633-634 (1st

19

Cir. 2002), the First Circuit held that zoning-board decisions

that deny individual providers the opportunity to fill gaps in

their networks are preempted. Like the substantial evidence

standard of clause (iii), the conflicting interpretations of

effective prohibition under sub-clause (II) render that

preemption provision—if it could be called a “right” at all—so

“vague and amorphous” that its violation cannot give rise to a

suit under Section 1983. Were the rule otherwise, localities

would be forced to guess at which of the many standards might

govern their decision, at the pain of enormous penalties if they

should guess wrong.

Moreover, Section 332(c)(7) properly is understood to be

a preemption provision. Town of Amherst v. Omnipoint

Comm ‘ns Enters., Inc., 173 F.3d 9, 16 (1st Cir. 1999); see also

pp. 5-7, supra. “A federal statutory right or right of action is not

required where a party seeks to enjoin the enforcement of a reg-

ulation on the grounds that the local ordinance is preempted by

federal law.” City of Santa Fe, 380 F.3d at 1266. “Given the

variety of situations in which preemption claims may be assert-

ed * * *, it would obviously be incorrect to assume that a federal

right of action pursuant to § 1983 exists every time a federal

rule of law pre-empts state regulatory authority.” Golden State,

493 U.S. at 107-108. Preemption provisions are interpreted

instead simply to grant priority to federal laws that conflict with

state or local laws, by operation of the Supremacy Clause. As

noted above, the NLRA preemption scheme in Golden State was

accompanied by unambiguous nghts-granting language. In this

case, by contrast, “congressional pre-emption benefits particular

parties” such as respondent “only as an incidené of the federal

scheme of regulation.” Jd. at 109 (emphasis added).

II. Sections 1983 and 1988 Are Irreconcilable with

the Comprehensive Remedial Scheme Under

Section 332(c)(7)(B)(v)

Even if it is possible to conclude that Section 332(c)(7)(B)

creates substantive rights enforceable under Section 1983, the

support for that proposition is shaky enough to cast serious

20

doubt on the claim that Congress intended to permit Section

1983 remedies to supplement and to supplant the statutory

enforcement scheme. The comprehensive scheme of judicial

review that Congress did enact precludes resort to the remedies

of Sections 1983 and 1988.

A. The court of appeals correctly concluded that a plaintiff

who successfully appeals, under Section 332(c)(7)(B)(v), a per-

mit denial by a local government is not entitled by the force of

that section alone to damages, costs, or attorneys’ fees. Pet.

App. 5a. Congress instead intended the section to operate in the

same manner as does any appellate review provision, permitting

the reviewing court to order the decisionmaker below—usually

a local zoning board—to reach a contrary decision. See 1996

U.S.C.C.A.N. at 223 (noting that an aggrieved party “appeals”

a decision denying a permit); see also Primeco, 352 F.3d at

1151 (discussing arguments for and against a “remand” to mu-

nicipal authorities, and noting that the main argument against

remand is delay).

1. That Section 332(c)(7) simply imports local zoning law,

refining it to fit the purposes of the Communications Act, is

apparent from the title of the paragraph: “Preservation of local

zoning authority.” Local governments retain the authority to

make the decisions they always have made “regarding the

placement, construction, and modification of personal wireless

service facilities.” Section 332(c)(7)(A). The substantial evi-

dence requirement “is a procedural safeguard which is centrally

directed at whether the local zoning authority’s decision is

consistent with the applicable [local] zoning requirements.”

ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir.

2002) (internal quotations omitted). Also in keeping with the

usual scheme for contesting zoning decisions—which in most

States involves a process such as an appeal, a writ of manda-

mus, Or a proceeding in certiorari (see, e.g., IND. CODE § 36-7-

4-1003(a); MASS. GEN. LAWS ANN. ch. 249 § 5; VA. CODE ANN.

§ 15.2-2314)—Congress allowed review of a permit denial “in

any court of competent jurisdiction.” Section 332(c)(7)(B)(v).

21

This case, and other appeals brought under the section,

demonstrate that preserving this traditional appellate review

process for wireless siting decisions has been successful. Per-

mit denials that are preempted by the section have been reme-

died in as little time as several months by a court order instruct-

ing the local zoning boards to grant the permits. See Village of

Tarrytown, 302 F. Supp. 2d 205 (five months); Montgomery

Cty. Bd., 245 F. Supp. 2d 817 (six months). This case is one in

which respondent was awarded complete relief when the district

court issued an injunction ordering the local zoning board to

grant the conditional use permit within two weeks of the court’s

final order. Pet. App. 14a-15a. Allowing further remedies

under Sections 1983 and 1988 would confer a windfall where

none is necessary.

2. Appeals from zoning-board decisions historically have

not been treated as actions for damages. In California spe-

cifically, but in many other States as well, local governments

actually are immune from damages when plaintiffs successfully

appeal zoning decisions. See CAL. GOv’T CODE § 818.4. The

scheme of zoning-board decisions and judicial review unambig-

uously was imported into Section 332(c)(7) by the “[p]reserv-

ation of local zoning authority.” Congress also was clear that

no other limits were placed on local zoning authority as it

related to wireless service facilities. See Section 332(c)(7)(A).

The decision from the Seventh Circuit holding that the

Communications Act’s-comprehensive remedial scheme pre-

vented resort to Section 1983 contained dictum about the reme-

dies that might be available under Section 332(c)(7)(B)(v),

which, according to that court, might include damages as well

as injunctive relief. See Primeco, 352 F.3d at 1152-1153. The

Third Circuit in Nextel Partners likewise observed, “the

availability of all appropriate remedies is generally presumed.”

286 F.3d at 695 n.6. But the court in Nextel Partners contin-

ued: “As a matter of practice, however, the typical relief in

cases like the one before us has been injunctive. Four district

22

courts have expressly held that damages are not available under

the TCA itself.” Jbid. (citations omitted).

The approach those district courts have taken to remedies

under Section 332(c)(7)(B)(v) undoubtedly is the correct one.

In Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 66 (1992),

this Court once again “recognized the power of the Judiciary to

award appropriate remedies to redress injuries actionable in

federal court.” Following that venerable rule requires courts to

ask what remedies are “appropriate.” In Franklin, the plaintiff

sued over egregious and intentionally tortious conduct, quite

unlike the failures to grant a conditional use permit at issue

here. See id. at 63-64 (recounting sexual harassment and rape

of a minor). Franklin thus specifically distinguished between

the more limited remedies that might be available “when the

alleged violation was unintentional,” and those available for an

“intentional” violation. Jd. at 74. Under Franklin’s analysis of

“appropriate” remedies for a violation of a federal statute, there

is nothing inconsistent about concluding, as most courts have,

that injunctive or mandamus relief is the appropriate recourse

for zoning decisions that do not comport with the limitations on

local zoning-board authority found in Section 332(c)(7)(B).

This Court has since refined the Franklin rule for deter-

mining the appropnate remedies for violations of federal nghts

created by Spending Clause legislation. In Barnes v. Gorman,

536 U.S. 181, 187 (2002), the Court held that—consistent with

_the contract-law nature of Spending Clause legislation—the

“appropriate” remedies included those to which the state or

local government anticipated being subjected when it agreed to

participate in the federal scheme. “A remedy is ‘appropriate

relief only if the funding recipient is on notice that by accept-

ing federal funding, it exposes itself to liability of that nature.”

Ibid. (internal citation omitted). Barnes demonstrates that, con-

trary to the Seventh Circuit’s dictum (Primeco, 352 F.3d at

1152-1153), the question of “all appropriate remedies” is not

the end of the analysis, but only the beginning. In the case of

23

zoning-board decisions later held to be preempted, the “appro-

priate” remedy on appeal is simply a reversal of the decision.

B. The Communications Act contains a “comprehensive”

remedial scheme for a plaintiff complaining of an improper per-

mit denial. The Court should follow the analysis of the com-

prehensiveness of the remedies available under Section

332(c)(7)(B)(v) adopted by the Third Circuit in Nextel Partners:

“(T]he remedial scheme provided by the TCA * * * is

comprehensive in the relevant sense: it provides private judicial

remedies that incorporate both notable benefits and

corresponding limitations.” 286 F.3d at 694. That court

pointed to the opportunity for expedited federal review, which

“may provide speedy redress for violations of the Act.” Jd. at

695. It also noted the “corresponding limitation{]” of the 30-

day filing requirement. /d. at 694-695. By contrast, the Ninth

Circuit simply—and incorrectly—held that Section

332(c)(7)(B)(v) “contains no remedies at all.” Pet. App. 7a. It

instead termed the bold new power granted federal courts in

clause (v) to entertain appeals from local zoning decisions

“procedural” (id. at 6a), thus trivializing the Act’s alteration of

the federal-state balance and creation of a new federal remedy

even while erroneously elevating the same provision to the

status of a private “night.” See pp. 13-19, supra.

1. In Middlesex Cty. Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981), this Court stated the test

for determining whether a federal statutory scheme permitted

suit seeking remedies under Section 1983. “When the remedial

devices provided in a particular Act are sufficiently comprehen-

sive, they may suffice to demonstrate congressional intent to

preclude a remedy.” Sea Clammers, 453 U.S. at 20. In that

case, the Court held that the substantive Acts contained

“enforcement mechanisms” that were sufficiently

comprehensive to preclude suit under Section 1983. Jbid.

The remedial scheme at issue in Sea Clammers, 453 U.S.

at 13-14, though “unusually elaborate,” did not give any greater

remedial powers to private indi: iduals (as opposed to the gov-

24

emment) than does the remedial scheme under Section

332(c)(7)(B)(v). That statutory scheme permitted private indi-

viduals to “seek judicial review” of actions by the EPA Admin-

istrator. Sea Clammers, 453 U.S. at 13-14. Additionally,

private persons could “sue for injunctions to enforce these

statutes,” if they first complied with specified procedures. Jd.

at 14. The private suit provisions were, like those at issue here,

subject to procedv al burdens far more stringent than those

under Section 1983—including “in most cases” a 60-day

advance-notice-of-suit requirement (Sea Clammers, 453 U.S. at

15) and, in certain circumstances, a 120-day limitations period

(see 33 U.S.C. § 1319(g)(6)(B)(ii)). In Sea Clammers, as here,

there also was no indication that individuals had statutory

authorization to sue for damages. 453 U.S. at 14.

Although the Seventh Circuit in Primeco, 352 F.3d at

1152, held that Sea Clammers is “distinguishable because the

Telecommunications Act is silent on remedies beyond merely

conferring a right to sue to enforce the Act,” the private remedi-

al scheme in that case was functionally indistinguishable from

the remedies available under clause (v): the citizen-suit provi-

sions “authorize[d] private persons to sue for injunctions to en-

force the[] statutes.” Sea Clammers, 453 U.S. at 14; cf. Prime-

co, 242 F. Supp. 2d at 582 (canvassing authorities and conclud-

ing that “the appropriate remedy is an order to issue the relevant

permit”).

2. The remedial scheme available under clause (v) there-

fore is “comprehensive” in the relevant sense: it gives “any

court of competent jurisdiction” power to entertain an appeal of

a zoning-board decision in and cabins that nght with a 30-day

limitation. Section 332(c)(7)(B)(v). In “fasten[{ing], barnacle

like” “general remedial statutes” (Primeco, 352 F.3d at 1153)

to create remedies where Congress had created none, the Ninth

Circuit’s holding below does just what this Court disparaged in

Smith v. Robinson, 468 U.S. 992 (1984). “[W]hen a statute

creates a comprehensive remedial scheme, intentional

‘omissions’ from that scheme should not be suppiaiited by the

25

remedial apparatus of § 1983.” Jd. at 1003. Rather than

interpreting the statute to provide the remedies that Congress

intended to make available, the Ninth Circuit held

that—because other remedies it thought appropriate were not

specifically provided—the gaps must be filled in by permitting

suit under Section 1983. See Pet. App. Sa (“the TCA does not

explicitly provide for any types of remedies such as damages,

injunctions, attorney’s fees, or costs”).

The effort of the court below to distinguish Sea Clammers

was particularly misguided. The court merely noted that, in Sea

Clammers, “the two rights-creating statutes at issue had ‘unusu-

ally elaborate enforcement provisions.’” Pet. App. 6a (quoting

Sea Clammers, 453 U.S. at 13). Initially, even this distinction

is insupportable. See pp. 23-24, supra (comparing the

injunctive remedy in Sea Clammers with the remedy usually

applied under Section 332(c)(7)(B)X(v)). The attempt at

distinguishing Sea Clammers also highlights the Ninth Circuit’s

willingness to subordinate Congress’s intent to its own view of

an appropriate remedial scheme. The court noted that this

Court had held the remedial scheme in Sea Clammers to be

what Congress considered ““appropriate,’ and refused to read

more into it.” Pet. App. 7a. In this case, by contrast, according

to the court of appeals: “While one may argue that the lack of

any damages in the TCA is evidence that Congress impliedly

intended to foreclose damages, a better justification for the

absence of a remedial provision is that Congress intended to

preserve an aggrieved plaintiff's nght to invoke § 1983.” Pet.

App. 7a. But nothing supports the Ninth Circuit’s preference

for the latter justification.

The availability of attorneys’ fees under Section 1988 for

a successful plaintiff is especially at odds with the remedies

- provided in the Communications Act. Section 1988 provides

advantages to plaintiffs clever enough to couch violations of the

Communications Act as remediable under Section 1983—even

though attorneys’ fees have no basis in federal law or in

traditional state handling of appeals from zoning decisions. Cf.

26

Maine v. Thiboutot, 448 U.S. at 25 (Powell, J., dissenting)

(noting the danger of eviscerating the “American Rule”:

“[I]ngenious pleaders may find ways to recover attorney’s fees

in almost any suit against a state defendant.”’).

3. Contrary to the holding of the court below (Pet. App.

10a-12a) and to -respondent’s arguments in this Court (Br. in

Opp. 19-20), nothing about the savings clause (Section

601(c)(1)) demonstrates a congressional intent to “preserve” the

Section 1983 remedy. This Court has never interpreted a

“savings clause” to grant remedies that did not otherwise exist,

and recently held that the antitrust savings clause (Section

601(b)(1)) “does not create new claims that go beyond existing

* * * standards” under the relevant preexisting body of law.

Trinko, 124S. Ct. at 878. That holding applies with equal force

to Section 601(c)(1).

“Section 1983 is only a vehicle for substantive claims that

have their base elsewhere. It is not an independent source of

constitutional or statutory nghts.” Harry A. Blackmun, Section

1983 and Federal Protection of Individual Rights — Will the

Statute Remain Alive or Fade Away?, 60 N.Y.U.L. REV. 1, 22

(1985). The Section 1983 cause of action exists only if Con-

gress has explicitly granted nghts enforceable through litigation

under the statute. See pp. 15-16, supra. To interpret the sav-

ings clause to preserve Section 1983 rights would be to elevate

Section 1983 to the status of substantive law—a position that

amici are unaware it ever has been held to occupy. For this

reason, this Court in Sea Clammers had no difficulty holding

that Section 1983 remedies were not available, despite the

presence in that case of a statutory savings clause. 453 U.S. at

20 n.31 (holding that the savings clause was intended “to allow

further enforcement of antipollution standards arising under

other statutes or state common law’’).

In fact, an analysis of the language in the savings clause

leads to the opposite conclusion. The clause protects state and

local laws, unless the Communications Act “expressly”

provides that they are “modif[ied], impair[ed], or supersede[d].”

27

Section 601(c)(1). The court below failed to appreciate that, by

interpreting Section 332(c)(7)(B)(v) to import Section 1983, it

interpreted the Communications Act to do just what Section

601(c)(1) says it does not.®

Under California law, “[a] public entity is not liable for an

injury caused by the * * * denial * * * of * * * any permit * * *

where the public entity or an employee of the public entity is

authorized by enactment to determine whether or not such

authorization should be issued.” CAL. GOv’T CODE § 818.4.

“Every state has some” similar “discretionary function excep-

tion” to liability (Bruce A. Peterson & Mark E. Van Der Weide,

Susceptible to Faulty Analysis: United States v. Gaubert and the

Resurrection of Federal Sovereign Immunity, 72 NOTRE DAME

L. REV. 447, 489 (1997)) that may be violated by permitting

damages remedies against a local government entity for making

zoning decisions later determined to be preempted.

Likewise, California and other States have laws adopting

the “American Rule” for attorneys’ fees. See, e.g., CAL. Civ.

Proc. CODE § 1021. By awarding fees to a successful plaintiff,

Section .1988 abrogates the American Rule. See Maine v.

Thiboutot, 448 U.S. at 25 (Powell, J., dissenting); Primeco, 352

F.3d at 1152 (if Section 1983 remedies are permitted, “the

American rule goes out the window”). The application of

Section 1988 to appeals under the Communications Act

modifies state laws regarding attorneys’ fees as well, in

contravention of Section 601(c)(1).’

* — Even without the express savings clause, this Court has held that

“matters left unaddressed” in a comprehensive and detailed federal stat-

utory provision “are presumably left subject to the disposition provided

by state law.” O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994).

* More even than permitting state laws to be trumped in violation of

the savings clause, the Ninth Circuit’s rule imposes an inequity that the

States adopting the American Rule have sought to avoid—permitting

only a prevailing plaintiff, not a prevailing local government, to seek

attorneys’ fees.

28

Ill. Allowing Section 1983 Remedies in this Context

Produces Results that Congress Did Not Intend

The provisions of Section 1983 and Section 1988 were

enacted to protect “socially marginal, unpopular, and impecuni-

ous” individuals with causes of action against “well-funded

public officers in cases whose social and political significance

may dwarf the monetary stakes.” Primeco, 352 F.3d at 1152.

Nothing about zoning-board decisions, or appeals of adverse

decisions under Section 332(c)(7)(b)(v), fits this paradigm. Just

the opposite is true. Plaintiffs—telecommunications companies

or entrepreneurs such as respondent—are able to finance their

own litigation, at least as effectively as are parties to other court

proceedings subjected daily to the “American Rule” for

attorneys’ fees. And defendants in these cases can easily be

“small towns, such as Mequon, population 21,000, with a

planning commission some of whose members double as

aldermen.” Primeco, 352 F.3d at 1152.

The burdens of defending litigation under both Sections

332(c)(7) and 253 already is substantial and often extremely

expensive. “[S]ection 332(c)(7) of the TCA has been highly

litigated. In slightly over five years since the first reported case,

at least 113 federal and 17 state decisions have construed the

TCA.” Tryniecki, supra, 37 REAL PROP. PROB. & TR. J. at 272.

Moreover, the “‘statute fairly bristles with potential issues, from

the proper allocation of the burden of proof through the

available remedies for violation of the statute’s requirements.””

Id. at 273 (quoting Town of Oyster Bay, 166 F.3d at 494). The

limitation on local zoning authority that the district court held

was violated in this case—the requirement under Section

332(c( 7 Bill) that a permit denial be supported by

substantial evidence—s “the most elusive and litigated tenet” of

the statute. Tryniecki, supra, 37 REAL PROP. PROB. & TR. J. at

272. This litigation promises only to increase if attorneys’ fees

and damages under Sections 1983 and 1988 are added to the

appellate-review remedy that the section already provides.

29

Commentators have noted the challenges facing local

zoning boards under Section 332(c)(7). “Wireless facilities,

such as a cellular antenna tower or Personal Communication

Systems (PCS) monopole, face the classic [Locally Undesirable

Land Uses] consumer conundrum: consumers want their

cellular, PCS, or Specialized Mobile Radio (SMR) service on

demand, and at an affordable price, but few consumers want to

allow the service’s physical infrastructure to infiltrate their

neighborhood.” Kevin M. O’Neill, Note, Wireless Facilities

Are a Towering Problem: How can Local Zoning Boards Make

the Call Without Violating Section 704 of the

Telecommunications Act of 19967, 40 WM. & MARY L. REV.

975, 975-976 (1999). This produces a seemingly irreconcilable

tension between wireless providers, which “want rapid system

development and taller, more powerful facilities,” and local

governments, which “want to choose the precise placement of

wireless facilities and make those facilities as unobtrusive as

possible.” Jd. at 988-989.

So long as the remedy available in judicial review of

zoning decisions that are preempted by Section 332(c)(7)(B) is

limited to an injunction, local governments can continue to

assert their zoning authority consistent with congressional

intent. But, under the rule announced by the Ninth Circuit in

this case, judicial review would be augmented by claims for

damages and attorneys’ fees. Such a rule would tie the hands

of local governments. As amici noted in a brief filed with this

Court urging the grant of certiorari in this case, one not atypical

case recently settled in California for $250,000 threatened

attorneys’ fees liability of $640,000—nearly 0.5% of the

municipality’s annual budget—under the Ninth Circuit rule.

Local Gov’t Cert.-Stage Br. 19.

This result is antithetical to Congress’s intent. In the con-

text of Section 253, Congress expressed concern for the costs

that would be imposed on local governments to “travel fre-

quently to Washington, D.C., to defend their actions before the

FCC.” Qwest Corp., 224 F. Supp. 2d at 1315 (citing 141 CONG.

30

Rec. $8170 (daily ed. June 12, 1995) (statement of Sen.

Feinstein); id. at $8306, $8308 (daily ed. June 14, 1995) (state-

ment of Sen. Gorton)). “Requiring governments to pay their

opponent’s attorneys’ fees pursuant to Section 1983 and 42

U.S.C. § 1988 whenever a court determines that local laws are

preempted would upset this delicate balance” and violate con-

gressional intent. Qwest Corp., 224 F. Supp. 2d at 1315-1316.

Likewise, under Section 332(c)(7)(B)(v), it is unrealistic to

impute to a Congress concerned about burdening local govern-

ments even with travel expenses an intent to impose the much

larger expense of damages and attorneys’ fees.

Contrary to this congressional concern for local govern-

ments’ costs, the necessary result of affirming the Ninth Cir-

cuit’s ruling would be greatly to encourage municipalities to

grant permits to construct cell-phone towers, despite the

legitimate concerns of zoning boards and citizens. The result is

exacerbated by the one-sided attorneys’ fees scheme under

Section 1988: only those challenging a permit denial under

Section 332(c)(7)—not local governments defending decisions

not to grant a permit, and not citizens opposing permits—may

seek attorneys’ fees if successful. Although the Seventh Circuit

thought it a “gross[] overstate[ment]” to imagine a “forest of

cell-phone towers” (Primeco, 352 F.3d at 1151), the one-sided

incentives under the Ninth Circuit rule threaten just that result.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

JAMES N. HORWOOD

PETER J. HOPKINS

Spiegel & McDiarmid

1333 New Hampshire

Ave., N.W.

Washington, D.C. 20036

(202) 879-4000

Roy T. ENGLERT, JR.*

MAX HUFFMAN

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 4] ]

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

Counsel for Amici Curiae

NOVEMBER 2004