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Athens Cellular, Inc. v. Oconee County, Georgia

United States Court of Appeals, Eleventh Circuit

April 2, 2018

ATHENS CELLULAR, INC., d.b.a. Verizon Wireless, Plaintiff - Appellant,
v.
OCONEE COUNTY, GEORGIA, et al., Defendants - Appellees.

          Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:14-cv-00087-CDL

          Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, [*] District Judge.

          OFLAT, Circuit Judge

         Congress 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.

         The 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).

         Verizon 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.[1] 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.[2] 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.

         The 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.[3] Verizon now appeals the Court's decision.

         The 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. [4]

         I.

         A.

         On May 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.

         At its 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.[5] After the meeting adjourned that day, the Commissioners signed a document entitled "Action Denying Special Use Approval Request" ("the Document").[6] Below a description of Verizon's application,[7] 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 "customary procedure."[8]

         On 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.[9] 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.[10]

         Verizon 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.[11] Verizon submitted the Open Records Request on September 5, and on September 10 received a copy of the Document.

         B.

         Verizon 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.

         Verizon 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.

         The 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.[12] The Court therefore concluded that the thirty-day limitations period expired before Verizon filed this action on September 24,[13] and that Verizon's lawsuit was therefore untimely.[14]

         II.

         In 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)).

         Here, 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.[15] 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)).

         The 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 record.'"

Order at 6–7 (quoting Roswell, 574 U.S. at __, 135 S.Ct. at 818 (quoting 47 U.S.C. § 332(c)(7)(B)(iii))).

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).[16]

         While 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.[17] 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").

         The 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 2].

Id. at 2–3, 6–7.[18]

         The 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."[19]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 10.

         In sum, 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.[20] By the time it asked the Clerk for a copy of the Document on September 5, 2014, the clock had expired.

         III.

         The TCA 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.[21] 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.

         The 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.

         The Board arrives at its zoning decisions according to the rules set out in the County Code.[22] 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 omitted).

         In 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[23] 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).[24] An action must comply with these requirements in order to be legally operative in Georgia.[25] 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)).

         The 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.[26] As it turned out, the Board approved the August 5 minutes in full. The minutes were placed on its website, which Verizon accessed.

         IV.

         We 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.

         First, 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.[27] 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 existed.[28]

         Second, 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[29] embodied the County's "final action."

         Third, 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.[30] 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.[31] 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 20.[32]

         Fourth, 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.

         According 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.[33] 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).

         Especially 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.

         Finally, 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.

         For all 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.

         V.

         Congress 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.

         The 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.

         The 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 permitting decision.

         SO ORDERED.

          KAPLAN, District Judge, joined as to Part II.A by ROSENBAUM, Circuit Judge, concurring:

         This is 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.

         I. FACTS

         This 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.

         A. The Telecommunications Act of 1996

         The TCA "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).

         The TCA 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. 124, 222."

Preferred Sites, LLC, 296 F.3d at 1214.

         The 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. § 322(c)(7)(B).

         The TCA 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." § 332(c)(7)(B)(ii)-(iii).[1]

         The final limitation on state and local governments is the provision of a right of federal judicial review. This provision, which is at ...


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