WASHINGTON-In a stunning 9-0 decision, the U.S. Supreme Court Tuesday told Mark Abrams he is not entitled to attorney’s fees and other damages even if he wins a tower-siting case.
“Liability for attorney’s fees would have a particularly severe impact in the Telecommunications Act of 1996 context, making local governments liable for the (often substantial) legal expenses of large commercial interests for the misapplication of a complex and novel statutory scheme,” wrote Justice Antonin Scalia.
In passing section 704 of the Telecommunications Act, 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.
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 attorney’s fees and other monetary compensation. Earlier this year, the U.S. Court of Appeals for the 9th Circuit ruled in Abrams’ favor.
The Supreme Court said that when Abrams went to court to reverse the city’s tower-siting decision, he lost the right to also ask for legal fees and damages because Congress did not expressly allow for legal fees and damages in the telecom act.
“In this case, the statute’s text, structure and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 to operate as a comprehensive and exclusive remedial scheme. The structure of the statute appears fundamentally incompatible with the private remedy offered by section 1983,” wrote Justice John Paul Stevens in a concurring opinion. “I am not persuaded that the statutory requirements can simply be mapped onto the existing structure of section 1983, and there is nothing in the legislative history to suggest that Congress would have wanted us to do so.”
Section 1983 was passed in 1871 and allows people to sue for legal fees and damages when others have been found to violate the law.
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.
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. Rancho Palos Verdes then appealed to the Supreme Court and won.
The Supreme Court’s decision was predicted from oral argument that occurred in January.
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.
In addition to Scalia and Stevens, Justices Ruth Bader Ginsburg, David Souter, Anthony Kennedy 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. He joined in ruling against Abrams.
Justice Clarence Thomas, as is typically the case, was silent throughout oral argument but he, too, joined against Abrams.
RCR Wireless News Washington, D.C., Bureau Chief Jeffrey Silva, who attended the oral argument, contributed to this report.
