One day soon, perhaps after Justice Antonin Scalia and Vice President Cheney return from their next weekend hunting trip, the Supreme Court will be asked to take an antenna-siting case. Perhaps they’ll agree, seeing that siting is an outdoor activity and figuring out siting law has become a sport of sorts.
Scattered siting law, intended to be national and uniform in the 1996 telecom act, is anything but. Court rulings are all over the map, with both industry and municipalities winning their share of cases. If it is aesthetics you desire, don’t look at federal siting law. It’s ugly and one big mind-bender.
It got even weirder this month.
The U.S. Ninth Circuit of Appeals in San Francisco ruled those who violate the telecom act’s siting provision can be liable for damages under a 1983 law.
In this case, the City of Rancho Palos Verdes is on the hook for damages, attorneys fees and other costs.
You may have already noticed this is not your typical siting controversy, with local authorities fighting mobile-phone carriers over jurisdiction.
In fact, the protagonist in this legal drama is one Mark Abrams. Abrams had erected a ham radio antenna on his property in 1989 after receiving a permit from the city. But the facility doubled for commercial two-way radio communications.
When the city found out a decade later, they ordered Abrams to cease using the antenna until he received a conditional permit, which Abrams applied for and which the city turned down.
Abrams sued. The district court ruled the telecom act forbid the city from denying Abrams a permit, but U.S. District Judge Stephen Wilson said the telecom law did not entitle him to damages.
The Ninth Circuit ruled otherwise, differing not only with the lower court but also with the Third Circuit (Nextel Partners Inc. vs. Kingston Township) on the same issue.
Ninth Circuit Judge Thomas Nelson said the telecom act provisions are compatible with the 1983 law’s remedies. “Were we to consider the [telecom act’s] procedural provisions sufficiently comprehensive to foreclose 1983 [law] remedies , we would prevent Congress from ever providing statutes of limitations or other procedural provisions without also defining specific remedies,” wrote Nelson.
In other words, beware all you budget-crunched cities and states out there. If you lose an antenna-siting battle, you may lose more than your pride.
