WASHINGTON-Several Supreme Court justices 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 so as to avoid financial liability if they are challenged on such decisions.
Mobile-phone carriers, embroiled in siting battles on a regular basis, want the Supreme Court to decide 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 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 from being recovered by wireless carriers that have triumphed in siting litigation.
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.
In addition to Scalia, Justices Ruth Bader Ginsburg, David Souter, Anthony Kennedy, John Paul Stevens and Stephen Breyer expressed skepticism to varying degrees about whether wireless carriers have legal rights to collect attorneys’ fees and damages in siting litigation.
Chief Justice William H. Rehnquist, recovering from thyroid cancer treatment, was absent. However, he reserved the right to participate in the Abrams’ case based on written briefs in the record.
Justice Clarence Thomas, as is typically the case, was silent throughout oral argument.
The mobile-phone industry was not ready to concede defeat.
Michael Altschul, general counsel of the cellular trade group CTIA, said the courts are divided on the question of the ability to recover attorneys’ fees in siting cases. He also said the issue must be viewed in the larger context of civil rights litigation.
“It’s a very hard, close case,” said Altschul.
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.
Jeffrey Lamken, a lawyer for Rancho Pales Verdes, said the $15 million-plus Abrams claims to have spent on attorneys equals the annual budget of the California city itself.
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 tower site 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 was appealed by Rancho Palos Verdes.
