Court's Application of Civil Rights Law Opens Local Liability in Telecom

Article excerpt

In a ruling that could have serious implications for cities, the U.S. Court of Appeals for the 11th Circuit, has ruled that state and local governments may be held liable for attorneys' fees for violations of the 1996 Telecommunications Act (the Act) and sections 1983 and 1988 of the 1871 Civil Rights Act.

The ruling may well prompt major civil rights claims against cities given the vast sums at stake and the trend to undermine local zoning authority. Moreover, cities and towns could be subjected to millions in litigation costs due to the inherently ambiguous Telecommunications Act of 1996.

The case, AT&T Wireless PCS, Inc., v. City of Atlanta, was initiated after Atlanta's Bureau of Planning invalidated, for procedural reasons, AT&T Wireless' special-use permit to provide personal communications services. The Bureau of Planning said the application should have been filed with the City Council. AT&T Wireless then submitted an application for the special permit to the City Council which was denied without any explanation.

AT&T Wireless then filed suit in district court pursuant to violations of the Act and the 1871 Civil Rights Act, specifically sections 1983 and 1988. Sections 1988 of the Civil Rights Act allows plaintiffs whom prevail in establishing a violation under Section 1983 to recover their attorneys' fees.

AT&T Wireless suit sought a court order compelling the City Council to grant AT&T Wireless's application, as well as seeking compensatory damages and attorney's fees. The district court found that Atlanta violated a provision of the Act that required the city to render its decision in writing supported by "substantial evidence" contained in a written record. The substantial evidence standard requires that local zoning authorities' decisions denying permits for construction of wireless antenna towers be "in writing and supported by substantial evidence contained in the written record. The district court issued a writ of mandamus ordering the Atlanta City Council to grant AT&T Wireless's application.

The district court rejected AT&T Wireless's motion for summary judgment on its civil rights claims holding that sections 1983 and 1988 may not be used to enforce the Act. …