Note: This page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.

United States Supreme Court (2005)

CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005)

No. 03-1601

Argued: January 19, 2005 | Decided: March 22, 2005

CITY OF RANCHO PALOS VERDES, CALIFORNIA, et al., PETITIONERS v. MARK J. ABRAMS

. . . on writ of certiorari to the United States Court of Appeals for the Ninth Circuit

March 22, 2005

Justice Scalia writes for the Supreme Court.

Enforcement of §332(c)(7) through §1983 would distort the scheme of expedited judicial review and limited remedies created by §332(c)(7)(B)(v). We therefore hold that the 1996 Telecommunications Act — by providing a judicial remedy different from §1983 in §332(c)(7) itself — precluded resort to §1983. The judgment of the Ninth Circuit Court of Appeals which awarded attorneys fees is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer, with whom Justice O’Connor, Justice Souter and Justice Ginsburg join, concurring.

I agree with the Court. It wisely rejects the Government’s proposed rule that the availability of a private judicial remedy "conclusively establishes . . . a congressional intent to preclude (Rev. Stat. §1979, 42 U. S. C.) §1983 relief." Ante, at 8 (emphasis added).

The statute books are too many, federal laws too diverse, and their purposes too complex, for any legal formula to provide more than general guidance. Cf. Gonzaga Univ. v. Doe, 536 U. S. 273, 291 (2002) (Breyer, J., concurring in judgment). The Court today provides general guidance in the form of an "ordinary inference" that when Congress creates a specific judicial remedy, it does so to the exclusion of §1983. Ante, at 8. I would add that context, not just literal text, will often lead a court to Congress’ intent in respect to a particular statute. Cf. ibid. (referring to "implicit" textual indications). Context here, for example, makes clear that Congress saw a national problem, namely an "inconsistent and, at times, conflicting patchwork" of state and local siting requirements, which threatened "the deployment" of a national wireless communication system. H. R. Rep. No. 104-204, pt. 1, p. 94 (1995). — S4WT: View this side-by-side comparison of HR.1555 and S.652

Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would pre-empt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208. — S4WT: View this Conference Report for the 1996 Telecommunications Act.

State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards [just "placement, construction and modification of personal wireless facilities" — both substantive and procedural — as well as federal judicial review.

The regulation of the operations of Wireless Telecommunications Facilities was never preempted from local zoning authority.

Penultimate Version of the TCA (HR 1555 from Fall 1995)	Ultimate Version of the TCA (S.652 passed in Feb 1996)
In the penultimate version of the TCA, in Section 107, the words operate and operation appear throughout. 1995 — SEC. 107. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS. (a) National Wireless Telecommunications Siting Policy. — Section 332(c) of the Act (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph: (7) Facilities siting policies. — (A) Within 180 days after enactment of this paragraph, the Commission shall prescribe and make effective a policy regarding State and local regulation of the placement, construction, modification, or operation of facilities for the provision of commercial mobile services. (B) Pursuant to subchapter III of chapter 5, title 5, United States Code, the Commission shall establish a negotiated rulemaking committee to negotiate and develop a proposed policy to comply with the requirements of this paragraph. Such committee shall include representatives from State and local governments, affected industries, and public safety agencies. In negotiating and developing such a policy, the committee shall take into account — (i) the desirability of enhancing the coverage and quality of commercial mobile services and fostering competition in the provision of such services; (ii) the legitimate interests of State and local governments in matters of exclusively local concern; (iii) the effect of State and local regulation of facilities siting on interstate commerce; and ;(iv) the administrative costs to State and local governments of reviewing requests for authorization to locate facilities for the provision of commercial mobile services. (C) The policy prescribed pursuant to this paragraph shall ensure that — (i) regulation of the placement, construction, and modification of facilities for the provision of commercial mobile services by any State or local government or instrumentality thereof — &nbsp(I) is reasonable, nondiscriminatory, and limited to the minimum necessary to accomplish the State or local government’s legitimate purposes; and (II) does not prohibit or have the effect of precluding any commercial mobile service; and (ii) a State or local government or instrumentality thereof shall act on any request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services within a reasonable period of time after the request is fully filed with such government or instrumentality; and (iii) any decision by a State or local government or instrumentality thereof to deny a request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services shall be in writing and shall be supported by substantial evidence contained in a written record. (D) The policy prescribed pursuant to this paragraph shall provide that no State or local government or any instrumentality thereof may regulate the placement, construction, modification, or operation of such 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. (E) In accordance with subchapter III of chapter 5, title 5, United States Code, the Commission shall periodically establish a negotiated rulemaking committee to review the policy prescribed by the Commission under this paragraph and to recommend revisions to such policy.". (b) Radio Frequency Emissions. — Within 180 days after the enactment of this Act, the Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules regarding the environmental effects of radio frequency emissions. (c) Availability of Property. — Within 180 days of the enactment of this Act, the Commission shall prescribe procedures by which Federal departments and agencies may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way, and easements under their control for the placement of new telecommunications facilities by duly licensed providers of telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. These procedures may establish a presumption that requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted absent unavoidable direct conflict with the department or agency’s mission, or the current or planned use of the property, rights-of-way, and easements in question. Reasonable cost- based fees may be charged to providers of such telecommunications services for use of property, rights-of-way, and easements. The Commission shall provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for such purposes.	In the ultimate version of the TCA, in Section 704, the words operate and operations were removed, expressing Congressional intent. 1996 — SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS. (a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph: (7) Preservation of local zoning authority. — (A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations. — (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof — (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (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 government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, 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 by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) Definitions. — For purposes of this paragraph — (i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term ‘personal wireless service facilities’ means facilities for the provision of personal wireless services; and (iii) the term ‘unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v))."

Penultimate Version of the TCA
(HR 1555 from Fall 1995)

Ultimate Version of the TCA
(S.652 passed in Feb 1996)

In the penultimate version of the TCA, in Section 107, the words operate and operation appear throughout.

1995 — SEC. 107. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

(a) National Wireless Telecommunications Siting Policy. — Section 332(c) of the Act (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) Facilities siting policies. —

(A) Within 180 days after enactment of this paragraph, the Commission shall prescribe and make effective a policy regarding State and local regulation of the placement, construction, modification, or operation of facilities for the provision of commercial mobile services.

(B) Pursuant to subchapter III of chapter 5, title 5, United States Code, the Commission shall establish a negotiated rulemaking committee to negotiate and develop a proposed policy to comply with the requirements of this paragraph. Such committee shall include representatives from State and local governments, affected industries, and public safety agencies. In negotiating and developing such a policy, the committee shall take into account —

(i) the desirability of enhancing the coverage and quality of commercial mobile services and fostering competition in the provision of such services;

(ii) the legitimate interests of State and local governments in matters of exclusively local concern;

(iii) the effect of State and local regulation of facilities siting on interstate commerce; and

;(iv) the administrative costs to State and local governments of reviewing requests for authorization to locate facilities for the provision of commercial mobile services.

(i) regulation of the placement, construction, and modification of facilities for the provision of commercial mobile services by any State or local government or instrumentality thereof —

&nbsp(I) is reasonable, nondiscriminatory, and limited to the minimum necessary to accomplish the State or local government’s legitimate purposes; and

(II) does not prohibit or have the effect of precluding any commercial mobile service; and

(ii) a State or local government or instrumentality thereof shall act on any request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services within a reasonable period of time after the request is fully filed with such government or instrumentality; and

(iii) any decision by a State or local government or instrumentality thereof to deny a request for authorization to locate, construct, modify, or operate facilities for the provision of commercial mobile services shall be in writing and shall be supported by substantial evidence contained in a written record.

(D) The policy prescribed pursuant to this paragraph shall provide that no State or local government or any instrumentality thereof may regulate the placement, construction, modification, or operation of such 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.

(E) In accordance with subchapter III of chapter 5, title 5, United States Code, the Commission shall periodically establish a negotiated rulemaking committee to review the policy prescribed by the Commission under this paragraph and to recommend revisions to such policy.".

(b) Radio Frequency Emissions. — Within 180 days after the enactment of this Act, the Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules regarding the environmental effects of radio frequency emissions.

(c) Availability of Property. — Within 180 days of the enactment of this Act, the Commission shall prescribe procedures by which Federal departments and agencies may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way, and easements under their control for the placement of new telecommunications facilities by duly licensed providers of telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. These procedures may establish a presumption that requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted absent unavoidable direct conflict with the department or agency’s mission, or the current or planned use of the property, rights-of-way, and easements in question. Reasonable cost- based fees may be charged to providers of such telecommunications services for use of property, rights-of-way, and easements. The Commission shall provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for such purposes.

In the ultimate version of the TCA, in Section 704, the words operate and operations were removed, expressing Congressional intent.

1996 — SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.

(a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:

(7) Preservation of local zoning authority. —

(A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations. —

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(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 government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, 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 by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

(C) Definitions. — For purposes of this paragraph —

(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;

(ii) the term ‘personal wireless service facilities’ means facilities for the provision of personal wireless services; and

(iii) the term ‘unlicensed wireless service’ means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v))."