Justices Appear Dubious of Tower Owner Arguments

The case looks more specifically at whether local govts. are subject to liability for damages and attorney’s fees under a federal civil rights law, Sec. 1983 of the Civil Rights Act, in a case otherwise covered under the Communications Act. In a Dec. brief, CTIA cited 5 zoning cases where it said carriers were hurt by dubious decisions made by local boards. CTIA said each case represented: “Bald denials of federal rights by officials acting under color of state law” (CD Dec 20 p1).

An attorney who has followed the case said the consensus among appellate attorneys Wed. was that the justices didn’t reveal how they're likely to rule. “It’s just too close with too many different legal threads to predict,” the attorney said. “The Chief Justice wasn’t there. Justice [Clarence] Thomas didn’t ask any questions.” The source added: “Approaching this as a communications lawyer really misses what this case is about -- this is a case that fits into a long series of Supreme Court precedents interpreting civil rights laws.”

But several of the Justices did note that when Congress drafted the 1996 Act, lawmakers looked at giving FCC more authority over tower siting in the interest of promoting wireless communications, but chose not to so cities wouldn’t have to incur the expenses of fighting cases at the FCC in Washington.

Attorney Jeffrey Lamken, representing the city, observed that in the case before the court tower, owner Mark Abrams was seeking $15 million, and that was before adding former Solicitor Gen. Seth Waxman, who argued part of the case Wed., to his legal team. Lamken noted that amount was roughly equal to “the city’s entire budget for the year.”

Justice John Paul Stevens questioned whether Congress passed the civil rights statute to protect “well financed” companies like wireless carriers when they feel they're wronged by local boards. “You're asking that a local board can be responsible for hundreds of thousands of dollars in attorneys’ fees,” said Justice Anthony Kennedy.

Justice Antonin Scalia said he was troubled that under the theory advanced by Abrams the city would be liable for damages even before it had a chance to reconsider a siting decision. “I cannot imagine Congress wanted to impose damages and attorneys’ fees without giving municipalities a chance to correct their mistakes,” Scalia said: “That’s extraordinary.”

Abrams, a ham radio operator, built an antenna in his backyard for personal use and later rented space to CMRS operators. The city issued an order 10 years later blocking Abrams from using the tower until he got a permit. The city then denied his permit request. Abrams sued, asking in part for monetary awards including payment of his legal fees, on grounds his civil rights had been violated under Sec. 1983. A district court ruled that the antenna didn’t violate any city regulations but denied a request for other compensation on the basis that the Telecom Act doesn’t specifically allow a monetary award.

The 9th U.S. Appeals Court, San Francisco, overturned that part of the lower court’s decision and ordered damages. Federal circuits have split 2-2 on similar Sec. 1983 cases, setting up Wed.’s oral arguments. The National League of Cities, states led by Ala., and the U.S. govt. were among the parties to file amicus briefs in support of the city. The American Mobile Telecom Assn., CTIA, the lawyers Committee for Civil Rights Under the Law and Public Citizen filed in support of Abrams.