ATHENS CELLULAR, INC., d.b.a. Verizon Wireless, Plaintiff - Appellant,
OCONEE COUNTY, GEORGIA, et al., Defendants - Appellees.
from the United States District Court for the Middle District
of Georgia D.C. Docket No. 3:14-cv-00087-CDL
TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, [*] District Judge.
enacted the Telecommunications Act of 1996 ("the
TCA") to "promote competition and higher quality in
American telecommunications services [and] encourage the
rapid deployment of new telecommunications technologies"
by, among other things, "reduci[ng] impediments imposed
by local governments" to the installation of wireless
communications facilities. City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 1455 (2005).
Although state and local governments retain "the
authority . . . over decisions regarding the placement,
construction, and modification of personal wireless service
facilities," 47 U.S.C. § 332(c)(7)(A), their
decisionmaking is subject to certain substantive and
procedural limitations. For example, "[t]he regulation
of the placement, construction, and modification of personal
wireless service facilities . . . shall not unreasonably
discriminate among providers of functionally equivalent
services; and . . . shall not prohibit or have the effect of
prohibiting the provision of [such] services."
Id. § 332(c)(7)(B)(i)(I)–(II). "A
State or local government . . . shall act on any request for
authorization to place, construct, or modify personal
wireless service facilities within a reasonable period of
time . . ., taking into account the nature and scope of such
request." Id. § 332(c)(7)(B)(ii). And
"[a]ny decision . . . to deny a request [for such
authorization] shall be in writing and supported by
substantial evidence." Id. §
332(c)(7)(B)(iii). Congress imposed these limitations on the
local permitting process for the construction of cellular
communications towers in order to facilitate broader
extension of wireless services to the American people.
See Abrams, 544 U.S. at 115, 125 S.Ct. at 1455.
denial of a request for authorization to construct a cellular
communications tower, if made in derogation of the §
332(c)(7)(B) limitations, is subject to challenge in federal
court. "Any person adversely affected by any final
action by a State or local government . . . that is
inconsistent with [§ 332(c)(7)(B)'s limitations]
may, within 30 days after such action . . ., commence an
action in any court of competent jurisdiction." 47
U.S.C. § 332(c)(7)(B)(v).
brought this lawsuit against Oconee County, Georgia, and the
Oconee County Board of Commissioners ("the Board")
to challenge the decision of the Board denying its
application for a special use permit to construct a cellular
communications tower. Verizon alleged
that the Board's decision had the effect of prohibiting
its provision of personal wireless services, in violation of
§ 332(c)(7)(B)(i)(II); and that it was not supported by
substantial evidence, as required by §
332(c)(7)(B)(iii). Verizon asked the Court to issue an
injunction requiring the Board to issue of the permit it
seeks. The County, answering
Verizon's complaint on behalf of itself and the Board,
denied Verizon's allegations and asserted twelve
affirmative defenses. A single affirmative defense, the
eleventh, is pertinent here: the County alleged that the
District Court lacked jurisdiction because Verizon did not
file suit within the TCA's thirty-day limitations period.
District Court, after considering the parties'
submissions relating to that affirmative defense, dismissed
the action as time-barred, reasoning that the thirty-day
limitations period began to run when the Oconee County Clerk
("the Clerk"), pursuant to custom, entered a
document evidencing the Board's vote in the County's
Ordinances and Resolutions books. Verizon now appeals the Court's
question in this appeal is whether the TCA's statute of
limitations began to run when the Clerk entered a document in
the Ordinances and Resolutions books or when the Board
formally approved the minutes of the meeting at which it had
voted to deny the application. The District Court chose the
former event. We reverse. 
30, 2014, Verizon submitted an application to the Oconee
County Planning Department for a Special Use Permit to
construct a cellular communications tower that would enhance
its wireless service. The Planning Department staff found
that Verizon's proposal met the requirements of the
Oconee County Unified Development Code ("County
Code") and recommended conditional approval of
Verizon's application. The application proceeded on to
the Oconee Planning Commission, which held a public hearing
on the application on July 21, 2014, and subsequently
recommended its denial. Verizon's application, along with
the Planning Commission's recommendation, then continued
automatically to the Board for consideration. See
County Code § 12.08.03.
regular monthly meeting on August 5, 2014, the Board held a
public hearing on Verizon's application. The Board heard
from Verizon's attorney and several concerned residents
who opposed granting the permit. The Commissioners then voted
two to one to deny the application. After the meeting adjourned that day, the
Commissioners signed a document entitled "Action Denying
Special Use Approval Request" ("the
Document"). Below a
description of Verizon's application, the Document simply read: "After
consideration and a motion and second, the Oconee County
Board of Commissioners does hereby deny the above-referenced
request for Special Use Approval." The Clerk then
forwarded a copy of the Document internally to the Oconee
County planning and zoning department on August 6, 2014. The
planning department kept that copy in its file. On August 7,
after the Board Chairman reviewed the Document, the Clerk
placed a copy of the Document in the Ordinances and
Resolutions books (specifically, in Book 20), according to
September 2, 2014, at its regular monthly meeting, the Board
approved the minutes of the August 5 meeting at which it had
voted on Verizon's application. On September 5, Verizon asked the Clerk
for a copy of the minutes of the August 5 meeting. The Clerk
responded that the minutes were available on the County's
website. That same day, Verizon accessed the website and
obtained a copy of the minutes. The minutes stated that the
Board voted to deny the application and included the
following reference: "See Documentation in
Ordinances and Resolutions Book No. 20." (bold and
italics in original). However, this
"documentation," i.e., the Document, was
not included in the minutes.
again contacted the Clerk and this time requested a copy of
the "documentation" referred to in the August 5
minutes. The Clerk told Verizon that it would have to file a
formal Open Records Request pursuant to the Georgia Open
Records Act, O.C.G.A. § 50-18-71, to receive a copy, as
it did not own the property affected by the
decision. Verizon submitted the
Open Records Request on September 5, and on September 10
received a copy of the Document.
filed this action on September 24, 2014. In its answer to
Verizon's complaint, the County asserted that the
complaint was untimely. The County argued that the relevant
"final action" triggering the thirty-day
limitations period occurred when the Board executed the
Document on August 5. Thus, according to the County,
Verizon's suit, filed fifty days later, was time-barred.
responded that the County had misidentified the Board's
"final action." The final action occurred when it
received notice that the Board's written decision was
available. Verizon was not alerted to the existence of the
Document until it read the minutes of the August 5 Board
meeting, which the Board approved on September 2. Verizon did
not receive a copy of the Document until September 10, in
response to its September 5 Open Records Request.
Accordingly, a "final action" triggering the
thirty-day limitations period could not have occurred before
September 2, at the earliest. Its lawsuit, Verizon argued,
was thus timely.
District Court was not persuaded. According to the Court, the
"final action" occurred when the Clerk placed the
Document in Book 20 on August 7, 2014. The Court therefore concluded that the
thirty-day limitations period expired before Verizon filed
this action on September 24, and that Verizon's lawsuit was
granting entities such as Verizon the statutory right to
judicial review of a local government's "final
action" regarding their applications, Congress created a
property right, a cause of action, protected by the due
process clause of the Fourteenth Amendment. See Logan v.
Zimmerman Brush Co., 455 U.S. 422, 429, 102 S.Ct. 1148,
1154 (1982) ("[A] cause of action is a species of
property protected by the Fourteenth Amendment's Due
Process Clause.") (citing Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652 (1950)).
Verizon's right to challenge the Board's denial of
its permit application would materialize once two events
occurred: first, the Board had to "issue" a written
decision memorializing the vote it took at its August 5,
2014, monthly meeting; second, that decision had to become a
"final action" under the TCA. Verizon could not exercise its right
without notice of these two events. Concordantly, the
County's procedures could not hinder Verizon's
acquisition of such notice, because that would obstruct the
TCA's judicial review scheme. Cf.
Roswell, 574 U.S. at __, 135 S.Ct. at 815 (observing
that "a locality cannot stymie or burden
the judicial review contemplated by the statute by
delaying the release of its reasons for a substantial time
after it conveys its written denial" (emphasis added)).
District Court was cognizant of Verizon's need for notice
of when these two events occurred. The Court thus looked to
the TCA to see what it required the Board to do after voting
to deny Verizon's application at the August 5, 2014
meeting. It found the TCA silent on the point.
Nowhere does the Act state that denial must be mailed,
distributed, or posted in some manner designed to provide
actual notice to the aggrieved party. Indeed, the United
States Supreme Court recently emphasized that the Act
"does not use any verb at all to describe the conveying
of information from a locality to an applicant; it just says
that a denial 'shall be in writing and supported by
substantial evidence contained in a written
Order at 6–7 (quoting Roswell, 574 U.S. at __,
135 S.Ct. at 818 (quoting 47 U.S.C. §
Although public policy considerations could support a
requirement that the aggrieved party receive actual
notice of the permit denial, Congress did not adopt such a
policy. . . . Congress simply instructed localities to
memorialize their final actions in writing. "Putting the
decision in writing is the last action the authority is
statutorily required to take."
Id. at 7, (quoting Preferred Sites, 296 F.
3d at 1217).
Congress did not explicitly instruct local governments to
provide aggrieved parties with "actual notice" of
the issuance of their final permitting decisions and where
the decisions might be found, it could not have intended that
aggrieved parties receive no notice at all, because that
would effectively deprive the parties of their right to
judicial review under 47 U.S.C. § 332(c)(7)(B)(v).
See Corley v. United States, 556 U.S. 303,
314, 129 S.Ct. 1558, 1566 (2009) (refusing to accept a
statutory interpretation "at odds with one of the most
basic interpretive canons, that a statute should be construed
so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or
insignificant") (internal quotation marks omitted);
Roswell, 574 U.S. at __, 135 S.Ct. at 815.
Constructive notice though could, at least in theory, provide
aggrieved parties notice sufficient to satisfy due process.
For example, state law and/or a local ordinance could inform
applicants and the public where in the local government's
official records permitting decisions could be found and
readily accessed. See
Grayden v. Rhodes, 345 F.3d 1225, 1239 (11th Cir. 2003)
(observing that for over "one hundred years" the
Supreme Court "has declared that a publicly available
statute" suffices to provide a party notice of his right
to seek review of an adverse decision, because
"individuals are presumptively charged with knowledge of
such a statute").
District Court searched for an Oconee County ordinance that
would have provided Verizon with that information. Its search
came up empty. "[N]o local ordinance informs an
applicant how to obtain a copy of the Board's written
decision." Order at 2. The Court nonetheless concluded
that such an ordinance was not needed to satisfy due process.
Rather, it reasoned, the County's custom of having the
Clerk place the Board's written decisions in its
Ordinances and Resolutions books, which were open to the
public, provided Verizon with all the process it was due. As
the Court expressed it,
[T]he Board's written decisions [are contained] in a
series of books stored in the clerk's office. As a public
record, the written decision is available to the public on
request. If a request is made by a party that does not own
the property that is the subject of the decision, the
clerk's practice is to require an open records request
before delivering the decision. . . .
[I]f Verizon simply had asked the clerk's office if the
Board had reduced its decision to writing, it would have been
told yes. And if Verizon had further inquired into how it
could receive a copy of that decision, the clerk's office
would have explained the record book and zoning department
procedures. Instead of just asking the clerk for the written
decision, Verizon waited for the Board to approve the [August
5] meeting minutes [at its next monthly meeting, on September
Id. at 2–3, 6–7.
District Court thus found the Board's approval of the
August 5 minutes at its September 2 meeting unnecessary to
render the Board's written decision to deny Verizon's
permit application final. According to the Court,
the decision became final under the TCA when the Clerk placed
it in Book 20; provided, however, that "diligence"
on Verizon's part would have led it to the decision. The
decision here became final, the Court reasoned, because
Verizon could have discovered it through a diligent inquiry.
But Verizon was not diligent, according to the Court.
"[I]nstead of diligently seeking alternative
access to the written decision, which may have led
Verizon to the clerk's record books or the zoning
department files, Verizon focused on the meeting minutes.
This was a mistake."Id. at 4 (emphasis added).
"Although Verizon's predicament could have been
avoided had the County simply mailed a copy of the written
denial to Verizon's counsel, the Court is unpersuaded
that Verizon did all that it could do." Id. at
according to the District Court, finality in this case turned
on Verizon's lack of diligence; Verizon failed to do all
that it could do to learn of the written decision and find
out where to obtain it. Therefore, the placement of the
Document in Book 20 constituted the Board's "final
action" for TCA litigation purposes. While Verizon was
awaiting the approval of the minutes of the August 5 meeting,
the thirty-day limitations clock was running. By the time it asked the Clerk for a
copy of the Document on September 5, 2014, the clock had
provides no express answer to the question of when a local
government's permitting decision becomes a "final
action," which starts the thirty-day clock. See
47 U.S.C. § 332(c)(7); Roswell, 574 U.S. at __,
135 S.Ct. at 817– 18. The District Court therefore
looked to local law, the ordinances and the procedures
governing the disposition of the Board's zoning
decisions, for the answer. Because the County lacks an
ordinance that "informs an applicant how to obtain a
copy of the Board's written decision," the Court
consulted the County's "customary procedure" of
recording zoning decisions in the Ordinances and Resolutions
books for guidance. Order at 2.
It decided that when a zoning decision is reduced to writing
and placed in those books it becomes final. See id.
at 8. In doing so, the Court decided a question of law, the
legal effect of the written decision.
Court erred in concluding that the placement of the Document
in Book 20 automatically transformed the Board's denial
of Verizon's permit application at its August 5 meeting
into a "final action," such that Verizon's
inchoate right to sue instantaneously ripened. Had the Court
consulted Georgia law and the County Code, it would have
concluded that the Board's denial of Verizon's
application became final when the Board approved the minutes
of its August 5 meeting on September 2.
Board arrives at its zoning decisions according to the rules
set out in the County Code. In turn, the County Code was
"adopted pursuant to the authority conferred by the
Georgia Constitution [and] the authority and requirements of
Georgia Zoning Procedures Law and other applicable State laws
and requirements." County Code § 102.02 (citation
conformance with Georgia's "Open Meetings Act,"
the Board had to prepare a written "summary of the
subjects acted on" at its August 5 meeting and make it "available to the
public for inspection within two business days of the
adjournment of [that] meeting." O.C.G.A. §
50-14-1(e)(2)(A). Minutes of the meeting had to be prepared
and "promptly recorded." Id. §
50-14-1(e)(2)(B). The Board was then to vote on whether to
approve those minutes at its "next regular
meeting," i.e., on September 2. Once approved,
the minutes must be made "open to public
inspection, but in no case later than immediately
following [the Board's] next regular meeting."
Id. (emphasis added). An action must comply with these
requirements in order to be legally operative in
Georgia. See O.C.G.A.
§ 50-14- 1(b) (providing that all votes "shall be
taken in . . . compliance with the posting and agenda
requirements"); Schoen v. Cherokee Cty., 530
S.E.2d 226, 226–27, 242 Ga.App. 501, 501 (2000)
("[A]ny actions taken during a meeting
held in violation of the [Open Meetings] Act are not
binding." (emphasis added)).
Board had plenary power over the August 5 minutes: it could
approve the minutes, revise them, or postpone its approval
decision until the next month's meeting in
October. As it turned out, the
Board approved the August 5 minutes in full. The minutes were
placed on its website, which Verizon accessed.
conclude that the Board's August 5 decision became
"final" for purposes of the TCA on September 2,
when the Board approved the minutes of the August 5 meeting.
We do so for several reasons.
the Open Records Act provided Verizon with constructive
notice as to when the Board's August 5 decision to deny
its permit application would become "final." The
Act informed Verizon that the decision would become final if
the Board approved the minutes of the August 5 meeting at its
next monthly meeting, on September 2. Once the minutes were approved, the
decision would become "official" and had to be
"promptly recorded." On the other hand, neither
Georgia law nor any County ordinance put Verizon on
constructive notice that the decision would become final when
the Clerk placed the Document in the Book 20-or that such a
document would be created or that such a book even
if the District Court is nevertheless correct that the
placement of the Document in Book 20 constituted the
Board's "final action" on Verizon's
application, then the Open Records Act provisions requiring
the approval of that decision so that it could become
"official" and "recorded" are mere
surplusage. Those affected by the Board's zoning
decisions, including the public, who believe that a zoning
decision reached at a regular monthly Board meeting is not
final and legally effective until the Board approves it at
its next monthly meeting, would be surprised to learn they
were mistaken. Considering the permitting process, the TCA,
the policies behind it, and the relevant background law, one
cannot conclude that the Document's placement in Book
20 embodied the County's
the Clerk posted draft minutes of the August 5 meeting on the
County's website, in accordance with the Open Records
Act. Draft minutes (as the Clerk herself referred to
them) are, by definition, subject to
revision. When the
Clerk posted the draft of the minutes of the August 5 meeting
on the County's website, she was notifying those affected
by the permitting decision that they could appear at the
September 2 meeting and speak to the question of whether that
decision should be made final via the approval of the minutes
of the August 5 meeting. The draft minutes' publication thus
provided notice that the action the Board took at that
meeting would not be final until approved, presumably at the
September 2 Board meeting. Moreover, the draft minutes
contained the reference, "See Documentation in
Ordinances and Resolutions Book No. 20." (emphasis
in original). Anyone who had attended the August 5 Board
meeting, or read the transcript of what transpired there,
would realize that the reference pertained to something
extraneous to the meeting and would assume that if the
minutes of the meeting were approved, a document reflecting
the Board's permitting decision would be placed in Book
under the District Court's approach, the finality of the
Board's decision turns on Verizon's
"diligence." Verizon should have disregarded the
approval scheme prescribed by the Open Records Act and asked
the Clerk the right questions. If Verizon's lawyer had
been diligent, she would have asked the right question, and
the Clerk would have told her where she could find the
Document- by making an Open Records Act request.
Verizon's lawyer was instead looking for the minutes of
the Board's August 5 meeting, and the Clerk had to have
known why: so that Verizon could challenge the Board's
permitting decision in court.
to the District Court Verizon, rather than relying on minutes
approved pursuant to law, should have "diligently"
sought the Document-which was placed in records according to
customs and practices nowhere established by law or
memorialized for public access. Congress did not contemplate
this scenario in enacting the TCA. It did not intend the
right to challenge a local permitting decision to depend on
whether the applicant's lawyer was "diligent."
To uphold this interpretation would be to accept an
unreasonable reading of the TCA that would yield unjust and
even absurd results. It would
impose a duty on applicants to know the obscure and byzantine
"customs" of every local government office whose
approval they need, and which are nowhere established by law.
This, Congress could not have intended. See Durr v.
Shineski, 638 F.3d 1342, 1349 (11th Cir. 2011).
not where Congress aimed to "reduc[e] impediments
imposed by local governments" to the provision of
wireless services by, among other things, providing
applicants the right to federal judicial review of local
decisions "on an expedited basis." Abrams,
554 U.S. at 115, 123, 125 S.Ct. at 1455, 1459; see
47 U.S.C. § 332 (c)(7)(B)(v). The District Court's
reading would thwart the expedience and efficiency of the
TCA's judicial review scheme, impairing the enforcement
of the Act's substantive standards of fairness, and thus
obstructing its overall goal to "encourage the rapid
deployment of new telecommunications technologies."
Abrams, 544 U.S. at 115, 125 S.Ct. at 1455.
we must reject the District Court's reading as
inconsistent not only with the goals of the TCA, principles
of statutory interpretation, and due process, but also with
Supreme Court precedent. In Roswell, the Supreme
Court defined "final action" under the TCA as
"the issuance of the written notice of
denial." 574 U.S. at __, 135 S.Ct. at 817 n.4 (emphasis
added). This language clearly signifies that the Court
understands the TCA to require "notice." Moreover,
and tellingly, when the Supreme Court defined "final
action" to include notice, it cited its own elucidation
of administrative law in Bennett v. Spear, where the
Court held that "two conditions must be satisfied for
agency action to become final: First, the action must mark
the consummation of the agency's decisionmaking
process-it must not be of a merely tentative . . . nature
[a]nd second, the action must be one by which rights or
obligations have been determined, or from which legal
consequences will flow." See id. (citing
Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct.
1154, 1168 (1997) (internal citations and quotation marks
omitted)). As explained above, here the Board's
"decisionmaking process" was not consummated, and
the relevant legal consequences under the TCA did not flow,
until the Board approved the minutes of the meeting at which
the vote was taken.
these reasons, the Board's action became final not when
the Clerk placed the Document in Book 20, as the District
Court found, but when the Board approved the minutes of the
meeting at which it voted on Verizon's application.
must have intended that localities provide notice
sufficient to allow applicants such as Verizon to vindicate
their rights. Otherwise, the TCA's judicial review
provisions, and the substantive rights they exist to protect,
would be meaningless. Only when an applicant receives
sufficient notice does the decision become "final,"
and only then can the thirty-day clock begin to run.
Congress, which "is presumed to act with sensible and
reasonable purpose," In re Graupner, 537 F.3d
1295, 1302 (11th Cir. 2008), enacted the TCA taking it as
given that localities issue their written decisions in a way
reasonably calculated to provide notice sufficient under the
due process clause, see Astoria Fed. Sav. & Loan
Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct.
2166, 2169 (1991); Mullane, 339 U.S. at 319, 70
S.Ct. at 660.
minutes, created pursuant to published statute, provided the
notice that due process and the Supreme Court's
interpretation of the TCA requires. Their approval, pursuant
to the same statute, provided the finality the TCA mandates.
The only possible "written notice of denial"
constituting Oconee County's "final action,"
and thus triggering the thirty-day clock, occurred when the
Board approved the minutes of the August 5, 2014 meeting, on
September 2. Verizon's action, filed on September 24, was
therefore timely. Accordingly, the District Court erred in
dismissing Verizon's case.
judgment of the District Court is REVERSED.
The cause is REMANDED for a determination of
the merits of Verizon's challenge to the Board's
KAPLAN, District Judge, joined as to Part II.A by ROSENBAUM,
Circuit Judge, concurring:
an action by Athens Cellular, Inc., d/b/a Verizon Wireless
("Verizon"), against Oconee County, Georgia
("Oconee County" or the "County"), the
Oconee County Board of Commissioners (the "Board"),
and the chairman and individual members of the Board for
judicial review of the Board's denial of Verizon's
application for a special use permit to build a cellular
communications tower. Verizon appeals from the district
court's dismissal of the action as untimely. I concur in
the majority's conclusion that the dismissal was
erroneous. With great respect for my colleagues, however, I
do so on a different basis.
litigation arises in the context of the Telecommunications
Act of 1996 (the "TCA"), which, in relevant part,
limits the power of state and local governments to interfere
with the siting of personal wireless service facilities in
the national interest of promoting and maintaining high
quality telecommunications services. It is useful to begin
with some general background on the TCA.
The Telecommunications Act of 1996
"was intended 'to promote competition and reduce
regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications
technologies.'" Preferred Sites, LLC v. Troup
County, 296 F.3d 1210, 1214 (11th Cir. 2002) (quoting
Telecommunications Act of 1996, Pub. L. No. 104–104,
110 Stat. 56, 56).
was designed to maintain state and local authority over the
construction and regulation of personal wireless service
facilities, subject to certain limitations. See 47
U.S.C. § 332(c)(7)(A). As we have stated previously:
"With respect to the construction of telecommunications
facilities, Congress recognized zoning decisions by state and
local governments had created an inconsistent array of
requirements, which inhibited both the deployment of personal
communications services and the rebuilding of a digital
technology-based cellular telecommunications network. H.R.
Rep. No. 104-204, at 94 (1995), reprinted in 1996
U.S.C.C.A.N. 10, 61. Despite this recognition, Congress also
acknowledged 'there are legitimate State and local
concerns involved in regulating the siting of such facilities
. . ., such as aesthetic values and the costs associated with
the use and maintenance of public rights-of-way.'
Id. at 94-95, reprinted in 1996
U.S.C.C.A.N. 10, 61. As a result, Congress enacted §
704(a) to 'preserve[ ] the authority of State and local
governments over zoning and land use matters except in . . .
limited circumstances. . . .' H.R. Conf. Rep. No. 104-458
(1996), at 207-08, reprinted in 1996 U.S.C.C.A.N.
Preferred Sites, LLC, 296 F.3d at 1214.
limitations on state and local governments are both
substantive and procedural in nature and are set forth in
Section 704(a) of the TCA, codified at 47 U.S.C. §
provides that a state or local government or instrumentality,
in regulating personal wireless service facilities,
"shall not unreasonably discriminate among providers of
functionally equivalent services" or "prohibit or
have the effect of prohibiting the provision of personal
wireless services." 47 U.S.C. § 332(c)(7)(B)(i). It
directs the state or local government or instrumentality to
act on requests to construct such facilities "within a
reasonable period of time after the request is duly
filed" and provides that any decision by such government
or instrumentality must "be in writing and supported by
substantial evidence contained in a written record."
final limitation on state and local governments is the
provision of a right of federal judicial review. This
provision, which is at ...