Ray T. Mahorney (rmahorney) wrote in pcs_ready_link,
Ray T. Mahorney

Cell Tower Case Beamed to High Court


Cell Tower Case Beamed to High Court
The justices will decide whether cities must pay damages for blocking
expansion of wireless phone networks.
By David G. Savage
LA Times Staff Writer

January 20, 2005

WASHINGTON - The Supreme Court debated the nuisance of cellphones Wednesday
- not their irritating habit of ringing at the wrong time, but rather the
need for tens of thousands of towers to transmit their signals.

In the last decade, 140,000 cell towers have sprouted up around the nation,
the cellphone industry says, and more are needed to eliminate "dead spots."
But in many cities, officials contend the towers are unsightly. And, on
occasion, officials have blocked wireless phone companies from erecting
more towers.

On Wednesday, the high court took up a case from Rancho Palos Verdes to
decide whether cities can be sued in federal court and forced to pay
damages if they stand in the way of creating a wireless phone network.

The outcome of the legal battle could affect communities across the nation.
The court's decision would give either city officials or wireless companies
the upper hand in disputes over the building and location of towers.

The National League of Cities and the League of California Cities - as well
as lawyers for Los Angeles, San Diego and San Francisco - were among those
who urged the justices to block damage suits.

They said they feared cities could face millions of dollars in damages if
they refused a company's bid to build a cell tower. Moreover, the potential
for a crippling verdict could force city officials to automatically approve
requests for new cellphone towers, they said.

However, lawyers for the cellphone industry told the court that Congress'
goal of creating a national cellphone network could not be achieved if
local officials could use their zoning power to block new towers.

Last year, the cellphone industry won an important victory in the U.S. 9th
Circuit Court of Appeals. It ruled that under long-standing principles of
civil rights law, persons are free to sue for damages if the government
violates their rights. And the Telecommunications Act of 1996 gave
providers of wireless phone service a right to build their networks, the
appeals court said.

The California case did not involve a cellphone company. Instead, the 2004
appellate ruling cleared the way for amateur radio operator Mark Abrams to
sue the city for denying him permission to broadcast from a 50-foot radio
tower in his yard.

The Supreme Court took up the case, City of Rancho Palos Verdes vs. Abrams,
to decide the larger question of whether federal law authorizes damage
suits against cities over the building of cellphone towers.

During the argument, most of the justices indicated they were inclined to
overturn the 9th Circuit and rule for the cities.

Washington lawyer Seth P. Waxman, the U.S. solicitor general in the Clinton
administration, represented the amateur radio operator and the cellphone
companies; he argued that Congress wanted to give these companies more
clout to battle local officials.

"Entrenched zoning authorities were frustrating the creation of a national
wireless network," he said, and lawmakers envisioned damage suits against
zoning authorities who were unreasonable in blocking new towers.

But several justices said this notion seemed far-fetched.

"I cannot imagine Congress wanted to impose damages and attorney's fees on
municipalities for one mistake," Justice Antonin Scalia said. "That is

Justice Anthony M. Kennedy said he had the same concern. "You are arguing
that even the smallest municipality can be held liable for hundreds of
thousand of dollars in damages," he said.

The lawyer who defended Rancho Palos Verdes said wireless phone companies
could challenge the zoning board's decision in court, but they should not
be able to sue for damages and legal fees.

"Very few municipalities could afford to enforce their own zoning laws" if
they were subject later to suits for damages, attorney Jeffrey A. Lamken

A Bush administration lawyer joined the case on the city's side, arguing
that Congress did not intend to authorize money suits over these zoning

None of the justices spoke up to take the side of those arguing for
open-ended lawsuits.

Chief Justice William H. Rehnquist, ailing with thyroid cancer, was absent
Wednesday and has not appeared in court since mid-October.

However, court officials said he planned to give administer the oath of
office to President Bush today.
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