The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...
The U.S. District Court for the Northern District of California Feb. 14 upheld a decision of the City and County of San Francisco denying T-Mobile's application for a conditional use permit to construct a wireless telecommunications facility in the city. The district court concludes that the five-page document issued by the city's Board of Supervisors constituted a "decision in writing" sufficient to satisfy the requirements of Section 332 of the Communications Act. T-Mobile West Corp. v. City and County of San Francisco, No. 4:10-cv-03011-CW.
The Board of Supervisors conducted a hearing on T-Mobile's application and determined by a vote of 11-0 that it would not be in the city's best interest to grant it. The Board issued a five-page set of findings reciting the facts of T-Mobile's application, specifying the arguments made at the hearing, and identifying the evidence submitted by T-Mobile's opponents. The findings further stated that the Board's decision was based on the record, which contained the Planning Commission's findings, testimony presented at the public hearing and Carson's and T-Mobile's documentary evidence.
District Judge Claudia Wilken notes that while it is not sufficient under the Act for an authority to stamp the word "denied" on a party's application, the Act's "in writing" requirement does not require localities to "explicate the reasons for their decision and link their conclusions to specific evidence in the written record," as T-Mobile argued. The Act requires only that the written decision contain sufficient explanation of the reasons for the decision to allow a reviewing court to evaluate the evidence in the record supporting those reasons.
The district court also rejects T-Mobile's claim that the decision was not based on substantial evidence. Although the Act does not define the term "substantial evidence," Judge Wilken observes, courts have held "that this language is meant to trigger the traditional standard used for judicial review of agency decisions." Under this deferential standard, courts may not overturn a locality's decision on "'substantial evidence' grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance)."
Here, the Board found that the proposed facility was not necessary because there was already "acceptable service" in the relevant area--a ground for denial specified in the county code--and T-Mobile did not dispute the accuracy of the opponents' signal strength data or that it had several other facilities close by. Moreover, the record contained a letter from a T-Mobile customer, who did not have a problem with dropped calls and stated that indoor signal strength rated from average to exceptional, and T-Mobile's own data showed that, in a given two-week period, out of 470,903 calls originating within the neighborhood, only 1,198 were dropped, or one-fourth of one percent of the total.
"In sum, the written record contained evidence that there was an adequate signal in the neighborhood, few calls were dropped, a T-Mobile customer was satisfied and no members of the public expressed support of T-Mobile's application. A reasonable mind would accept this evidence as adequate to support a conclusion that the [neighborhood] did not need the proposed facility," the court concludes.
Nor did the Board overlook or undervalue T-Mobile's claim the proposed facility was "necessary for T-Mobile to provide improved communications and emergency resources." There was no evidence that the proposed project was necessary to improve the handling of wireless 911 calls in the neighborhood, the court rules, so there is no reason to conclude that the Board erred in overruling the city planning commission's contrary conclusion.
By Robert Emeritz
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)