25
Mrz
2005

US federal court decisions involving the Telecommunication Act (TCA) of 1996

Three reports on recent US federal court decisions involving the Telecommunication Act (TCA) of 1996:

23 March 2005 - RCR Wireless News - Supreme Court rules telecom cases do not include attorney's fees - tower siting case

23 March 2005 - Los Angeles Times - Cities Get Break on Permitting of Cell Towers - another report on this Supreme Court decision on tower siting

18 March 2005 - RCR Wireless News - Industry could ask Supreme Court to review RF lawsuits - 6 headset cases


RCR Wireless News

http://www.rcrnews.com/news.cms?newsId=21934
Supreme Court rules telecom cases do not include attorney's fees
By Heather Forsgren Weaver
March 23, 2005
WASHINGTON-In a stunning 9-0 decision, the U.S. Supreme Court Tuesday told Mark Abrams he is not entitled to attorney's fees and other damages even if he wins a tower-siting case.

"Liability for attorney's fees would have a particularly severe impact in the Telecommunications Act of 1996 context, making local governments liable for the (often substantial) legal expenses of large commercial interests for the misapplication of a complex and novel statutory scheme," wrote Justice Antonin Scalia.

In passing section 704 of the Telecommunications Act, Congress allowed tower owners to go to court if a locality was holding up a siting or if it did not support its decision in writing.

Mark Abrams, an SMR operator, wanted to use a 54-foot antenna on his property for commercial purposes, but the permit was denied by Rancho Palos Verdes, Calif. Abrams sued and won in federal court in 2002. Since then Abrams has been trying to get attorney's fees and other monetary compensation. Earlier this year, the U.S. Court of Appeals for the 9th Circuit ruled in Abrams' favor.

The Supreme Court said that when Abrams went to court to reverse the city's tower-siting decision, he lost the right to also ask for legal fees and damages because Congress did not expressly allow for legal fees and damages in the telecom act.

"In this case, the statute's text, structure and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 to operate as a comprehensive and exclusive remedial scheme. The structure of the statute appears fundamentally incompatible with the private remedy offered by section 1983," wrote Justice John Paul Stevens in a concurring opinion. "I am not persuaded that the statutory requirements can simply be mapped onto the existing structure of section 1983, and there is nothing in the legislative history to suggest that Congress would have wanted us to do so."

Section 1983 was passed in 1871 and allows people to sue for legal fees and damages when others have been found to violate the law.

Abrams' tower dispute began when he attempted to build a second tower on his property. After several back-and-forth attempts at the local level, Rancho Palos Verdes denied Abrams' request. He then sued, citing section 704 of the Telecommunications Act of 1996.

A federal judge, after waiting more than a year to deliver a decision, sided with Abrams but said he was not entitled to damages. It was this decision that was overturned by the 9th Circuit. Rancho Palos Verdes then appealed to the Supreme Court and won.

The Supreme Court's decision was predicted from oral argument that occurred in January.

Several Supreme Court justices appeared not to buy arguments that municipalities are liable for attorneys' fees and damages when they lose antenna-siting court cases.

In addition to Scalia and Stevens, Justices Ruth Bader Ginsburg, David Souter, Anthony Kennedy and Stephen Breyer expressed skepticism to varying degrees about whether wireless carriers have legal rights to collect attorneys' fees and damages in siting litigation.

Chief Justice William H. Rehnquist, recovering from thyroid cancer treatment, was absent. However, he reserved the right to participate in the Abrams' case based on written briefs in the record. He joined in ruling against Abrams.

Justice Clarence Thomas, as is typically the case, was silent throughout oral argument but he, too, joined against Abrams.

RCR Wireless News Washington, D.C., Bureau Chief Jeffrey Silva, who attended the oral argument, contributed to this report.
Full text of the Supreme Court Decision 03-1601 City of Rancho Palos Verdes et al. v. Abrams is available at:
http://a257.g.akamaitech.net/7/257/2422/22mar20051115/www.supremecourtus.gov/opinions/04pdf/03-1601.pdf

Excerpts from Slip Opinion:

page 1 paragraph 2

Held: An individual may not enforce § 332(c)(7)'s limitations on local zoning authority through a § 1983 action. The TCA -- by providing a judicial remedy different from § 1983 in § 332(c)(7) itself -- precluded resort to § 1983.

Stevens, J., concurring in judgment

page 1 paragraph 1

When a federal statute creates a new right but fails to specify whether plaintiffs may or may not recover damages or attorneys' fees, we must fill the gap in the statute's text by examining all relevant evidence that sheds light on the intent of the enacting Congress. The inquiry varies from statute to statute. Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action . . . Whenever we perform this gap-filling task, it is appropriate not only to study the text and structure of the statutory scheme, but also to examine its legislative history.

page 4 paragraph 1

. . . Congressional silence is surely probative in this case because, despite the fact that awards of damages and attorney's fees could have potentially disastrous consequences for the likely defendants in most private actions under the TCA, see Primeco Personal Communications v. Mequon, 352 F 3d. 1147, 1152 (CA7 2003), nowhere in the course of Congress' lengthy deliberations is there any hint that Congress wanted damages or attorney's fees to be available. That silence reinforces every other clue that we can glean from the statute's text and structure.


Los Angeles Times
http://www.latimes.com/news/nationworld/nation/la-na-scotus23mar23,1,2650501.story
Cities Get Break on Permitting of Cell Towers

By David G. Savage
Times Staff Writer

March 23, 2005
WASHINGTON ­ The Supreme Court made it easier Tuesday for cities to say no to new cellphone towers in their neighborhoods.

In a 9-0 ruling, the justices said the federal law that was designed to encourage the growth of the telecommunications industry did not allow cities to be sued for damages for refusing to permit a cellphone tower.

In the last decade, 140,000 cellphone towers have sprouted around the nation, but the phone industry says it needs more of them to eliminate "dead spots."

The high court's decision will take some of the pressure off local governments to approve permits for new cellphone towers, although it does not mean they can refuse all of them.

The ruling was one of three Tuesday in which the high court overturned decisions of the U.S. 9th Circuit Court of Appeals, which is based in San Francisco.

The ruling on cellphone towers will affect disputes across the country. However, it did not arise from a typical conflict between a cellular phone company and a municipality, but rather from an unusual dispute between a ham radio operator and the city of Rancho Palos Verdes near Los Angeles.

Mark Abrams, the ham radio operator, erected a 52-foot radio tower on his property on Oceanaire Drive in the Del Cerro neighborhood. City officials objected in 1998, when they learned Abrams was using the tower for commercial broadcasts, and they denied him a permit to broadcast from the tower.

He then sued the city in federal court, seeking an order that would allow him to keep the tower as well as monetary damages and attorney fees. When the U.S. 9th Circuit Court of Appeals ruled for Abrams, the Supreme Court took up the dispute to decide whether the Telecommunications Act of 1996 allowed such damage claims against cities.

Writing for the court in Rancho Palos Verdes vs. Abrams, Justice Antonin Scalia said Congress did not intend for local governments to be liable for huge money verdicts in such disputes. He said it could have "a particularly severe impact" on small towns and rural communities across America if the giants of the cellphone industry could seek monetary damages and legal fees.

Cities must give their reasons for refusing to permit new phone towers, Scalia pointed out, and disappointed applicants may go to court to challenge a city's decision. But that is all, he concluded. They may not seek monetary damages from the city, even if officials wrongly denied the permit, he said.

The ruling is a victory for the League of California Cities and the National League of Cities, which joined the case on the side of Rancho Palos Verdes. Groups representing the cellphone industry had sided with Abrams, arguing that unless checked by the courts, cities could use their zoning powers to exclude cellphone towers.

RCR Wireless News
March 18, 2005
Cover Story
http://www.rcrnews.com/article.cms?articleId=47934


RCR Wireless News

Industry could ask Supreme Court to review RF lawsuits
By Jeffrey Silva
March 18, 2005
WASHINGTON-The mobile-phone industry may ask the Supreme Court to review a federal appeals court ruling that breathed new life into five class-action lawsuits alleging cellular firms could have better protected consumers from mobile-phone radiation harm by supplying them with headsets.

Last Wednesday, the 4th U.S. Circuit Court of Appeals ruled 2-1 to remand four of the headset lawsuits to state courts in Georgia, Maryland, New York and Pennsylvania. The other class-action lawsuit was returned for further proceedings to U.S. District Judge Catherine Blake of Baltimore, who dismissed all five suits on federal pre-emption grounds in 2003.In addition to resurrecting the five headset lawsuits, the 4th Circuit's decision-which turned not on health, but on jurisdiction-could impact pending brain-cancer lawsuits that industry argues are pre-empted by federal law as well cellular consumer lawsuits pitting federal law against states rights.

"We're pleased. We think the court ruled correctly," said Michael Allweiss, a Louisiana lawyer who filed the first headset case and argued for the plaintiffs before a three-judge panel in Richmond, Va., last October. Allweiss is working with attorneys at the law firm of trial lawyer and Baltimore Orioles owner Peter Angelos. The lead headset case is Pinney v. Nokia Inc.

In these cases, plaintiffs are asking that wireless companies supply subscribers with headsets and reimburse those who already have bought them. In addition, plaintiffs are seeking punitive damages.

Former special prosecutor Kenneth Starr, currently dean of Pepperdine University law school and of counsel to the Kirkland & Ellis law firm, argued the appeal for the cellular industry.

Starr strongly suggested the headset case is far from settled.

"Congress has given the FCC broad authority to regulate radio-frequency emissions from wireless phones and the FCC has accordingly set standards for wireless phones through a uniform, nationwide scheme. Thus, these cases belong in federal court," said Starr in a written statement. "The 4th Circuit's split-decision that these cases should not be heard in federal court and are not pre-empted by federal law is unfortunate. We are considering appealing to the full Court of Appeals, and, if necessary will consider seeking review by the Supreme Court."

The jurisdictional issues in this case are important, not just to the mobile telephone industry but to the general enforcement of federal law, and should attract interest from the Supreme Court. But whether these cases are heard in state or federal court, we are confident that the courts will find, as the scientific community has found, that wireless phones cause no adverse health effects."

The mobile-phone industry, which has yet to lose a health-related case, suddenly finds itself in a legal venue favored by many trial lawyers. Defendants in the five class-action headset lawsuits read like a Who's Who of the wireless industry. Included are all five national carriers and the world's leading mobile-phone manufacturers. Industry trade associations are named as defendants as well.

Last July, Blake, who in 2002 rejected an $800 million brain-cancer lawsuit brought by a neurologist represented by the Angelos law firm, remanded six other brain-cancer lawsuits against wireless firms and trade associations to the Superior Court of the District of Columbia.

The mobile-phone industry has asked Judge Brook Hedge to dismiss the six brain-cancer lawsuits based on a federal pre-emption defense. As such, the 4th Circuit decision could hurt industry's case in the brain-cancer litigation.

The wireless industry tried to put the best face possible on last week's legal defeat, saying the 4th Circuit's ruling was about process and venue rather than science, and that it was a split decision with a strong dissent.

Indeed, the 4th Circuit's decision was not altogether surprising, given the court's conservative makeup and its pro-states rights tendency.

Still, it was a major setback for a wireless industry that was led to believe headset (and brain-cancer) litigation was on the way out.

"We have thoroughly examined the claims asserted by the Pinney plaintiffs in their complaints, and one thing is clear: the elements of each of the claims depend only on the resolution of questions of state law," stated Circuit Judge M. Blane Michael, who wrote the majority opinion.

Michael was joined in the opinion by Circuit Judge J. Michael Luttig. Luttig, a native of Tyler, Texas, is regularly mentioned as a future pick for the Supreme Court.

Senior District Judge Jackson Kiser dissented, agreeing with Blake that the headset lawsuits are a thinly disguised attack on the validity of the Federal Communications Commission's radio-frequency radiation safety standard. That standard has been upheld by two federal appeals courts.

"Here, plaintiffs are not merely raising a claim that may undermine a federal regulatory scheme through inconsistent interpretations; rather they are raising claims which, if successful, will result in the complete invalidation of federal regulatory standards. This presents a substantial federal question," said Kiser.

Wireless health studies have yet to definitively link cell phones to cancer or other diseases, though some studies have found adverse biological effects from low level RF radiation. For that reason, government health officials in the U.S. and overseas continue to call for additional research.

"There is nothing good here for the wireless industry," said Rebecca Arbogast, a telecom analyst at Legg Mason. At the same time, she said the decision is not devastating for industry.

Arbogast said the 4th Circuit ruling complicates the legal strategy for the mobile-phone industry. "The defendants will have to litigate in various state courts instead of one-stop shopping with Judge Blake," said Arbogast. "I think it's going to be pesky for industry."

Susan Kalla, a telecom analyst at Friedman, Billings and Ramsey, said she doubted the mobile-phone industry would take a hit as a result of last week's 4th Circuit decision.

Full text of U.S. Court of Appeals for the 4th Circuit decision 03-1433 Pinney v. Nokia is available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=title&v1=Pinney
Excerpts from Opinion:

page 1 paragraph 2

Held: An individual may not enforce § 332(c)(7)'s limitations on local zoning authority through a § 1983 action. The TCA -- by providing a judicial remedy different from § 1983 in § 332(c)(7) itself -- precluded resort to § 1983.

Stevens, J., concurring in judgment

page 1 paragraph 1

When a federal statute creates a new right but fails to specify whether plaintiffs may or may not recover damages or attorneys' fees, we must fill the gap in the statute's text by examining all relevant evidence that sheds light on the intent of the enacting Congress. The inquiry varies from statute to statute. Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action . . . Whenever we perform this gap-filling task, it is appropriate not only to study the text and structure of the statutory scheme, but also to examine its legislative history.

page 4 paragraph 1

. . . Congressional silence is surely probative in this case because, despite the fact that awards of damages and attorney's fees could have potentially disastrous consequences for the likely defendants in most private actions under the TCA, see Primeco Personal Communications v. Mequon, 352 F 3d. 1147, 1152 (CA7 2003), nowhere in the course of Congress' lengthy deliberations is there any hint that Congress wanted damages or attorney's fees to be available. That silence reinforces every other clue that we can glean from the statute's text and structure.



Janet Newton, President
The EMR Policy Institute, P.O. Box 117, Marshfield VT 05658
Tel: (802) 426-3035 FAX: (802) 426-3030
Web Site: http://www.emrpolicy.org



Cell Phone Companies Sued For 'Unsafe Levels Of Radiation'
http://omega.twoday.net/stories/579834/

MOBILE TELEPHONE CAN CAUSE CANCER
http://omega.twoday.net/stories/590981/
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