Sprint Spectrum L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash, 1996). My favorite case. Basically decided that a moratorium was a reasonable land use tool which did not violate any of the prohibitions set forth in Section 704 of TCA (47 USC Section 332(c)(7)), including prohibitions against discriminating among providers of functionally equivalent service and the prohibition of personal wireless services. As far as I know, this was the first case filed and the first decision issued under TCA.

AT&T Wireless PCS v. City Council of the City of Virginia Beach (Citation unavailable, a copy of the entire decision can be located at www.millervaneaton.com). The U.S. Fourth Circuit Court of Appeals overruled a district court decision which had ordered Virginia Beach to approve applications for two 135-foot cell towers. The court held that the city did not discriminate amongst functionally equivalent service providers because the tower applications involved four providers, two digital and two analog, and the denial of the application affected everyone the same. The court held that the carriers were not entitled to any relief from any incidental discrimination because the denial rested on traditional bases of zoning regulations, preserving the character of a neighborhood and avoiding aesthetic blight and that such a denial was reasonable. The court was willing to overlook a remark from one Council person that residents were satisfied with current wireless service. As the court pointed out, no one testified that they like analog service better than digital, merely that they thought 135 foot towers should be in the nearby commercial zone and not in the midst of a residential area. The court held that the denial did not violate the TCA mandate that regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." It held this mandate only applies to blanket prohibitions and general bans or policies, not to individual zoning decisions. The Fourth Circuit also disagreed with the applicants' contention that the decision was not "in writing and supported by substantial evidence contained in a written record," as TCA Section 704 requires. The court found that the writing requirement was satisfied by the condensed minutes of the meeting and by stamping a letter from the planning commission describing the application with the word "DENIED." The court did not agree that a written decision required findings of fact and an explanation of the decision. The court held that there was sufficient evidence in the record to support the decision based upon testimony of various residents opposed to the facilities and several petitions opposing the location. Although the court held that the providers may have produced the best evidence, expert testimony of the need for the facilities and the minimal impact on the community, the testimony in opposition provided far more than a mere scintilla of evidence. Especially interesting was the court's observation that since the decision was made by a legislative body, it was only natural and appropriate to assume that the legislators would give great weight to the opinions of their constituents.

Despite the holding in this case that it is not necessary, I would still recommend that any jurisdiction denying a permit prepare a written decision. This is an excellent opportunity to show that our legislative bodies make their decisions based on reason and not emotion and to show why the applicants' evidence missed the mark. Another interesting although irrelevant fact deriving from the decision is that the two towers were going to be paying a local church a combined rent of $60,000 per year.

BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923 (N.D. Ga. 1996). This case is an interesting lesson in how not to conduct a public hearing. The county commissioners gave the proponents and opponents five minutes each to explain their positions, then they summarily denied the tower. (Reading between the lines, the application was so unreasonable the commissioners did not feel it justified much consideration.) You have to realize that wireless siting professionals are well schooled in what they do. I attended a conference put on by one of the providers in New Orleans last year. They brought in their siting people from around the country and spent several days discussing cases like Gwinnett County and training their people how to prepare a record. In Gwinnett County the provider was able to build a complete record during its five minutes because everything it needed to support its position was in writing. The opponent had one spokesperson talk about his fears that this ugly tower would reduce property values. The district court took one look at the expert testimony on one side and the conjecture on the other and ordered the county to issue the permit. It did not even consider remanding the matter to the county to give it the opportunity to develop a proper record and/or appropriate written decision.

Many federal district courts around the country have followed Gwinnett County, including the summary form of relief which was granted. I am only aware of one decision, by Judge Zilly of the local federal district court, which remanded a decision to a board of county commissioners to allow the board the opportunity to supplement an otherwise inadequate decision.

Cellco Partnership v. Haywood County, (Citation not available, Federal District Court for the Western District of North Carolina). This decision issued in June 1998, flies in the face of a frequently made industry assertion that Sprint v. Medina is no longer good law. The district court upheld the County's moratorium even though it was not adopted until 16 months after passage of The Telecommunications Act. It relied on the fact that, like in the City of Medina, the moratorium was a good faith effort to temporarily suspend issuance of permits while writing an adequate ordinance. The court cited the lack of any comprehensive ordinances in the county dealing with wireless facilities and the fact that the county worked with the providers in preparing a new ordinance. This is of importance to many smaller cities throughout the country who may have heard rumors about what is going on but will not be approached by providers until they have first built out the major metropolitan areas.

Century Cellunet v. Ferrysburg, 1997 U.S. Dist. LEXIS 20553 (W.D. Mich.). In this case a federal district court affirmed the decision of a small city not to allow a 230-foot tower. It agreed that there was an unreasonable "topple" danger because the tower was higher than the dimensions of the lot on which it sat. It also agreed that a 230-foot tower with white flashing lights during the day and red lights at the top and middle was not in harmony with the existing city.

Sprint Spectrum v. Town of Ontario Planning Board, (Citation unavailable, 1998 decision in U.S. District Court for New York). Sprint sued Ontario, New York, for denying three 150 foot towers. After nine hearings and preparation of an environmental impact statement, the town found that the proposed towers would have a measurable and significant impact on property values and that the visual impact would be visible over a wide area. Sprint argued that it needed the three towers to provide the level of service that it deemed appropriate and that the town could not deny its application on the basis that a single tower could provide adequate service. The court disagreed citing the TCA's broad preservation of the local zoning authority, it stated that such zoning authority was paramount to Sprint's desired coverage levels. In other words, the desires of the industry do not supersede a community's ability to preserve its character.

Conclusion