WASHINGTON-Several Supreme Court justices today appeared not to buy arguments that municipalities are liable for attorneys’ fees and damages when they lose antenna-siting court cases.
The case has huge monetary and indirect policy implications, but it will not settle the divisive federal-state issue of antenna-siting law itself.
If the high court affirms a lower court’s ruling that cities must pay attorneys’ fees if they lose siting legal battles, cash-strapped cities could find themselves scrambling to find millions of dollars to reimburse wireless carriers and their lawyers. It has been argued such a consequence could have a chilling effect on cities’ reviews of siting applications, with towns more apt to approve towers to avoid monetary liability.
Mobile-phone carriers, embroiled in siting battles on a regular basis, want the Supreme Court to decide that that cities should have to pay attorneys’ fees when courts find they have wrongly denied siting applications.
The Bush administration backs the cities, arguing Congress created other mechanisms in the 1996 telecom act to address siting problems and did not intend to saddle local communities with hefty legal bills when they lose siting cases in court.
Justice Sandra Day O’Connor said the telecom law is silent regarding attorneys’ fees in tower-siting litigation, appearing to suggest they are not precluded.
Justice Antonin Scalia took a different view.
“I cannot imagine Congress wanted to impose damages and attorneys’ fees without giving municipalities a chance to correct their mistakes … That is extraordinary,” said Scalia.
Mark Abrams, an SMR operator, wanted to use a 54-foot antenna on his property for commercial purposes but the permit was denied by Rancho Palos Verdes, Calif. Abrams sued and won in federal court in 2002. Since then Abrams has been trying to get attorneys’ fees and other monetary compensation. Earlier this year, the U.S. Court of Appeals for the 9th Circuit ruled in Abrams’ favor.
Representing Abrams in oral argument before the Supreme Court today was Seth Waxman, U.S. solicitor general in the Clinton administration.
Abrams’ tower dispute began when he attempted to build a second tower on his property. After several back-and-forth attempts at the local level, Rancho Palos Verdes denied Abrams’ request. He then sued, citing Section 704 of the Telecommunications Act of 1996.
In passing Section 704, Congress allowed tower owners to go to court if a locality was holding up a siting or if it did not support its decision in writing.
A federal judge, after waiting more than a year to deliver a decision, sided with Abrams but said he was not entitled to damages. It was this decision that was overturned by the 9th Circuit and appealed by Rancho Palos Verdes.
