T-Mobile South, LLC v. City of Milton, Georgia

Filing 33

ORDER granting in part Plaintiff's 23 Motion for Partial Summary Judgment; granting Defendant's 31 Motion to Exclude Exhibit A-1 to Plaintiff's Reply in Support of Motion for Partial Summary Judgment. Defendant has failed to meet t he necessary written requirements of 47 U.S.C.A. § 332(7)(B)(iii). Because the Court has not reached the issue of whether there was substantial evidence supporting Defendant's decision, the Court concludes that injunctive relief is not appr opriate at this time. Rather, the Court REMANDS this case to the City of Milton to adequately state in writing its grounds for denial and/or conditional approval. Such a proper written denial by the Defendant is necessary in order for the Court to ru le on the issue of whether there was substantial evidence to support Defendant's decisions. Thereafter, Plaintiff may move to re-open this case if it wishes to challenge Defendant's decisions. The Clerk is DIRECTED to administratively close this case. Signed by Judge Richard W. Story on 06/24/2011. (dfb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
T-MOBILE SOUTH LLC,
Plaintiff,
v.
CITY OF MILTON, GEORGIA,
Defendant.

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CIVIL ACTION NO.
1:10-CV-1638-RWS

ORDER
This order comes before the court on Plaintiff’s Motion for Partial
Summary Judgment [23] and Defendant’s Motion to Exclude Exhibit A-1 [31].
After considering the record, the Court enters the following order.
Background
Plaintiff operates a personal communications service mobile telephone
communication system. In pursuit of a stronger wireless network, Plaintiff
submitted applications to Defendant City of Milton (“City”), a political
subdivision of the State of Georgia, to construct three monopole
telecommunications towers at three different sites within the City (the Mountain

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Road site, the Cogburn site, and the New Providence site, respectively). (Dkt.
[23-5] at ¶¶ 1-2, 6, 36, 62). Following a series of meetings and hearings which
featured testimony by Plaintiff’s experts, concerned citizens, and Defendant’s
experts, Defendant denied Plaintiff’s applications for the Mountain Road and
Cogburn sites and conditionally approved Plaintiff’s New Providence site. (Id.
at ¶¶ 35, 61, 90). However, the written denial notice sent to Plaintiff did not
include written reasoning or evidence to explain why Defendant denied the first
two sites or conditionally approved the third. (Id.; Dkt. [6] at ¶¶ 42, 71) Rather,
Defendant contends that the written record and minutes of the meetings are
sufficient to explain its decisions. (Dkt. [6]).
In its complaint, Plaintiff alleges that Defendant violated the
Telecommunications Act (“TCA”), 47 U.S.C. § 332 et seq., by: issuing a
decision not supported by substantial evidence; effectively prohibiting wireless
services; unreasonably discriminating among providers of functionally
equivalent services; and creating an unlawful barrier to entry. Plaintiff brings
this Motion for Partial Summary Judgment to address its broadest claim against
Defendant: whether Defendant violated 47 U.S.C. § 332(c)(7)(B)(iii) by failing
to issue a written decision which was supported by substantial evidence.

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Preliminary Matters
Defendant has first moved to exclude Plaintiff’s Reply Brief Exhibit A-1.
The Court finds that this Exhibit is ultimately irrelevant as the Exhibit–a copy
of the ordinance as it currently appears on the City’s website–is not the
ordinance which was in effect at the time of Plaintiff’s application.1 See Dkt.
[30-2] (containing the current ordinance); Recycle & Recover, Inc. v. Georgia
Bd. of Natural Resources, 266 Ga. 253, 466 S.E.2d 197 (Ga. 1996) ("if a
property owner becomes an actual applicant seeking to alter the use of his land,
he has a vested right to consideration of his application under the statutory law
then in existence."). Plaintiff seeks to use this Exhibit to prove that a wind load
certification is not material at the application stage because the City has since
removed any such obligation prior to approval.2 However, the Court’s inquiry
is not whether the ordinance’s sequencing was logical, but whether the City

1

The Court notes that the Plaintiff appears to agree that the prior ordinance
controls as the parties included that ordinance in their stipulated record. See Dkt. No.
[13] at 1 (ordering the “parties [to] file a stipulated record of the proceedings”); Dkt.
No. [21] (containing the prior ordinance).
2

Plaintiff also admits that wind load certifications are important, but differs
with Defendant on when the certification should be required. See Pl.’s Reply, Dkt. No.
[30] at 8 (“T-Mobile does not seek to be excused from the obligation to submit wind
load certifications”).
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had substantial evidence under the at-issue ordinance to issue the denial. Thus,
the Court GRANTS Defendant’s Motion to Exclude [31].
Discussion
Plaintiff challenges the Defendant’s use-permit denial on two fronts.
First, Plaintiff argues that Defendant’s written communications were not
sufficient to satisfy the writing requirement of the TCA. Second, Plaintiff
maintains that even assuming the written denial was sufficient, that decision
was not adequately supported by substantial evidence.
I.

Written Requirement
The TCA states that “[a]ny decision by a state or local government or

instrumentality thereof to deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported by substantial
evidence contained in a written record.” 47 U.S.C.A. § 332(7)(B)(iii). Plaintiff
argues that Defendant’s denials were insufficient as they did not contain
enumerated reasons for denying Plaintiff’s Mountain Road and Cogburn
applications. Moreover, Plaintiff asserts that Defendant’s conditional approval
of the New Providence cell tower site effectively served as a denial and thus
also lacked sufficient written explanation regarding why Defendant attached
such conditions.
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The Northern District of Georgia has previously held that “[a] cursory
denial of plaintiff's application does not satisfy defendants' duty to provide a
written decision under the Telecommunications Act, which has been interpreted
to require 'written findings of fact tied to the evidence of record.'" (Dkt. No.
[23-2], Powertel/Atlanta, Inc. v. Clayton County, No. 1:98-cv-0375-JEC, at
*11 (N.D. Ga. May 20, 1998)). Further, this Court has also stated that
“[f]or a decision by a state or local government or instrumentality
thereof denying a request to place, construct, or modify personal
wireless service facilities to be ‘in writing’ for the purposes of
Telecommunications Act, it must (1) be separate from the written
record, (2) describe the reasons for the denial, and (3) contain a
sufficient explanation of the reasons for the denial to allow a
reviewing court to evaluate the evidence in the record that supports
those reasons.”
(Dkt. No. [23-2], Powertel/Atlanta, Inc. d/b/a Voicestream Wireless v. Fulton
Cnty., Ga. Bd. of Comm’rs, No. 1:02-cv-1199-GET, at *10 (N.D. Ga. June 2,
2003) (citing New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002)).
The Court finds this logic persuasive and reaffirms its position regarding
what is necessary to satisfy the written requirement. The purpose of the TCA’s
written requirement is to allow courts the ability to meaningfully review the
decisions of local government. See 47 U.S.C.A. § 332(7)(B)(v). Because
Defendant’s written decisions did not include any reasoning, the Court finds

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that the written decisions are insufficient to fulfill the purposes of 47 U.S.C.A. §
332(7)(B)(iii). Without a sufficient written denial, the Court is unable to
meaningfully review the City of Milton's decision.
Additionally, Plaintiff urges the Court to view Defendant’s conditional
approval as a denial. In allowing a challenge to a zoning board's conditional
approval of a cellular tower (allowing the tower on the condition of the cellular
company lowering its height), a district court found that conditional decisions
issued by local governments, "[t]o comply with the TCA, … must issue a
written decision, which is separate from the record of its proceedings and the
decision must be support by substantial evidence contained with a written
record of the pertinent proceedings." U.S.C.O.C. of N.H. d/b/a U.S. Cellular v.
Town of Dunbarton, N.H., 2005 WL 906354 at *3 (D.N.H. April 20, 2005)
(citing Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59-60 (1st
Cir. 2001)). This holding is consistent with the TCA which provides that the
regulation of personal wireless service facilities by any local government “shall
not prohibit or have the effect of prohibiting the provision of wireless services.”
47 U.S.C.A.. §332(7)(B)(i)(II). To that end, the TCA requires written decisions
predicated upon substantial evidence as a way of preventing such a prohibition.
The Court finds that conditional approvals, for the purposes of the TCA, can be
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tantamount to denials in their potential effects and thus are subject to the same
statutory requirements as actual denials. Therefore, because Defendant’s
conditional approval did not set forth any reasoning, the Court also finds
Defendant’s conditional approval failed to satisfy the written requirement.
II.

Substantial Evidence Requirement of the TCA
Plaintiff additionally asserts that besides the lack of written denial, there

was not substantial evidence for Defendant to deny and/or conditionally approve
the permit applications. (Id.). Both parties appear to agree that the applications
were denied or conditionally approved for two primary reasons: (1) because the
applications lacked a wind load certification as required by Defendant’s
ordinance; and/or, (2) for aesthetic reasons raised by both council members and
concerned citizens.3 However, because there is no written denial which satisfies
the TCA, this Court is unable to readily discern which motivation the City
Council actually relied upon. As such, this Court will not perform a post-hoc

3

The Court does note that the Plaintiff asserts that the wind load certification
rationale is pre-texual. Therefore, while Plaintiff recognizes the Defendant is now
asserting this as a denial rationale, it does not agree that this reason motivated the City
at the time of decision. However, if Defendant did rely on the missing wind-load
certifications, it may well have satisfied the substantial evidence standard. See City of
Milton Municiple Code Article XIX, Section 19.3.1 (B)(13).
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guessing game, but rather will require the City to adequately state in writing the
basis of its denial.
Conclusion
For the reasons discussed above, the Court GRANTS, in part, Plaintiff's
Motion for Partial Summary Judgment [23]. Defendant has failed to meet the
necessary written requirements of 47 U.S.C.A. § 332(7)(B)(iii). Because the
Court has not reached the issue of whether there was substantial evidence
supporting Defendant’s decision, the Court concludes that injunctive relief is not
appropriate at this time. Rather, the Court REMANDS this case to the City of
Milton to adequately state in writing its grounds for denial and/or conditional
approval. Such a proper written denial by the Defendant is necessary in order
for the Court to rule on the issue of whether there was substantial evidence to
support Defendant’s decisions. Thereafter, Plaintiff may move to re-open this
case if it wishes to challenge Defendant’s decisions. The Clerk is DIRECTED
to administratively close this case.
SO ORDERED, this 24th day of June, 2011.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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