Justia Communications Law Opinion Summaries

AT&T applied for a permit from the Lexington-Fayette Urban County Planning Commission to build a 125-foot cell-phone tower. Neighboring residents opposed the application, arguing that the tower would spoil the view from their properties, disturb the character of the neighborhood, endanger public health and safety, and depress residential property values. They cited a staff report concerning the tower's visual impact, an expert report on radio frequency emissions, and valuation studies. The Commission granted the site permit. The Fayette County Circuit Court dismissed an appeal on procedural grounds. A state court appeal is pending. The district court dismissed a separate suit alleging negligence, negligence per se, gross negligence, and nuisance. The Sixth Circuit affirmed, citing “obstacle” preemption by the federal Telecommunications Act of 1996. The court also noted that the claims constituted an improper collateral attack on the Commission’s decision to approve the tower. View "Robbins v. New Cingular Wireless PCS, LLC" on Justia Law

In 2010, the Township of Franklin (the Township) adopted an ordinance revising its regulation of signs, including billboards. The ordinance permits billboards, subject to multiple conditions, in a zoning district proximate to an interstate highway but expressly prohibited digital billboards anywhere in the municipality. A company seeking to install a digital billboard challenged the constitutionality of the ordinance. The Law Division declared unconstitutional that portion of the ordinance barring digital billboards. The trial court viewed the Township's treatment of such devices as a total ban on a mode of communication. In a reported opinion, the Appellate Division reversed. Applying the "Central Hudson" commercial speech standard and the "Clark/Ward" time, place, and manner standard to content-neutral regulations affecting speech, the appellate panel determined that the ban on digital billboards passed constitutional muster. The Supreme Court disagreed: "simply invoking aesthetics and public safety to ban a type of sign, without more, does not carry the day." The Court declared the 2010 ban on digital billboards as unconstitutional and reversed the judgment of the Appellate Division. View "E&J Equities v. Board of Adjustment of Franklin Township" on Justia Law

The Township of Tredyffrin Zoning Hearing Board of Appeals denied an application by DePolo, a federally licensed amateur or “ham” radio enthusiast, to build a 180-foot radio antenna tower on his property so that he could communicate with other ham radio operators around the world. The property is surrounded by mountains or hills. He claimed a shorter tower would not allow him to reliably communicate with other ham radio operators. The ZHBA agreed to a tower that was 65-feet tall as a reasonable accommodation under the applicable zoning ordinance prohibition on buildings taller than 35 feet. DePolo did not appeal that decision to the Chester Court of Common Pleas as allowed under state law, but filed a federal suit, claiming that zoning ordinance was preempted by 47 C.F.R. 97.15(b), and the closely related FCC declaratory ruling, known as PRB-1. The district court dismissed, finding that the ZHBA had offered a reasonable accommodation and that the zoning ordinance was not preempted by PRB-1. The Third Circuit rejected an appeal. DePolo’s failure to appeal the ZHBA’s determination to state court rendered the decision final, entitled to the same preclusive effect that it would have had in state court. View "Depolo v. Tredyffrin Twp. Bd. of Supervisors" on Justia Law

The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law

Smith sought a conditional use permit (CUP) to build a 300-foot-tall cellular tower on a Washington County site zoned "Agriculture/Single-Family Residential." There are homes within one-quarter of a mile of the site. The Zoning Code authorizes a CUP upon findings: That the proposed use is compatible with the surrounding area; will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare; and will not be injurious to use and enjoyment of other property in the area for purposes already permitted, nor substantially diminish and impair property values within the area. The Planning Board approved the application. Neighbors appealed to the Quorum Court with arguments focused on "safety," "property values," the tower's "fit" with the area, proximity to their homes, and having purchased their homes specifically because of the surrounding scenery and views. Hearing participants discussed cellular phone reception; potential safety issues, particularly in inclement weather; proximity to residences; and impact on nearby residents' views and property values. The application was rejected. The district court and Eighth Circuit affirmed, rejecting arguments that Washington County failed to provide a legally adequate explanation of its reasons for denial and that the denial was not based on substantial evidence in violation of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B). View "Smith Commc'ns, LLC v. Washington Cnty." on Justia Law

Plaintiff, a nonprofit charitable organization, solicits donations of clothing and shoes at unattended, outdoor donation bins for distribution in other countries. It locates bins at businesses that are “easily visible and accessible” with the consent of the owner. Its representatives generally collect donations weekly to avoid bin overflow. Bins are labeled so that people can report if they are full. In 2012, the city did not regulate donation bins. Plaintiff placed bins at a former grocery store and at a gas station. The city sent a letter claiming that they had “been found to create a nuisance as people leave boxes and other refuse around the containers,” denied a request for review, and removed the bins. A year later, the city council enacted a “total prohibition,” exempting the already-operational Lions Club Recycling. The ordinance states a purpose of preventing blight, protecting property values and neighborhood integrity, avoiding creation and maintenance of nuisances and ensuring safe and sanitary maintenance of properties. The Sixth Circuit affirmed entry of a preliminary injunction, finding that operation of bins to solicit and collect charitable donations qualified as protected speech and that the content-based ordinance fails strict scrutiny because it implements an overly broad, prophylactic ban on all bins so the city can avoid hypothetical nuisances or other issues that may arise in the future. View "Planet Aid v. City of St. Johns" on Justia Law

Roswell’s city council held a public hearing to consider T-Mobile’s application to build a cell phone tower on residential property. Council members expressed concerns about the tower’s impact on the area. The council unanimously denied the application. Two days later, the city informed T-Mobile by letter that the application had been denied and that minutes from the hearing would be made available. Detailed minutes were published 26 days later. The district court held that the city, by failing to issue a written decision stating its reasons for denial, had violated the Telecommunications Act, which provides that a locality’s denial “shall be in writing and supported by substantial evidence contained in a written record,” 47 U. S. C. 332(c)(7)(B)(iii). The Eleventh Circuit found that the Act’s requirements were satisfied. The Supreme Court reversed. It would be difficult for a reviewing court to determine whether denial was “supported by substantial evidence contained in a written record,” or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” or regulated siting “on the basis of the environmental effects of radio frequency emissions,” if localities were not obligated to state reasons for denial. Those reasons need not appear in the denial notice itself, but may be stated with sufficient clarity in some other written record issued essentially contemporaneously with the denial. Because an applicant must decide whether to seek judicial review within 30 days from the date of the denial, the locality make available its written reasons at essentially the same time as it communicates its denial. View "T-Mobile South, LLC v. City of Roswell" on Justia Law

Springfield has an ordinance that prohibits panhandling in its “downtown historic district”—less than 2% of the city’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; as are oral pleas to send money later. Plaintiffs have received citations for violating this ordinance and allege that they will continue panhandling but fear liability. They unsuccessfully sought a preliminary injunction. The parties agreed that panhandling is a form of speech, to which the First Amendment applies, and that if it drew lines on the basis of speech’s content it would be unconstitutional. The Seventh Circuit affirmed, upholding the ordinance, which it called “indifferent to the solicitor’s stated reason for seeking money, or whether the requester states any reason at all…. Springfield has not meddled with the marketplace of ideas.” The prohibition is based on where a person says something rather than what position a person takes. View "Norton v. City of Springfield" on Justia Law

ATC filed suit challenging the City's denial of its Conditional Use Permit (CUP) applications for three of its San Diego telecommunications facilities. ATC raised claims under, among other provisions, the California Permit Streamlining Act (PSA), Cal. Gov't Code 65956(b); the Federal Telecommunications Act (TCA), 47 U.S.C. 332; California Code of Civil Procedure 1094.5; and the Equal Protection Clause. The court reversed the district court's grant of summary judgment in favor of ATC on the PSA claim because the court concluded that the CUP applications were not deemed approved before the City denied them. The court affirmed the district court's grant of summary judgment on the TCA claim where the City evaluated the CUP applications under the proper provision of the Land Development Code and supported its decision to deny them with substantial evidence; the City did not unreasonably discriminate among providers of functionally equivalent services because ATC and the City are not "similarly situated" providers; and ATC has failed to show effective prohibition because it has not demonstrated that its proposals were the least intrusive means of filling a significant gap in coverage. ATC could not prevail on California Code of Civil Procedure 1094.5 because it does not have a fundamental vested right to the continued use of the Verus, Border, and Mission Valley Facilities. There was no violation of the Equal Protection Clause because the City's decision to deny the CUP applications was rationally related to the City's legitimate interest in minimizing the aesthetic impact of wireless facilities and in providing public communications services. Accordingly, the court reversed in part and affirmed in part. View "American Tower Corp. v. City of San Diego" on Justia Law

T-Mobile filed suit under the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B), challenging the Board's denial of T-Mobile's application for permits to build two telecommunications towers in Loudoun County - one disguised as a bell tower and one disguised as a silo on a farm. The district court concluded that the Board improperly denied T-Mobile's application for the silo tower and affirmed the Board's decision denying permits for the bell tower. The court concluded that the Board's decision to deny T-Mobile's Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. In regards to the Silo Site, the court concluded that while the aesthetic concerns that the Board gave for denying T-Mobile's application were supported by substantial evidence, its decision to base the denial of T-Mobile's application on improper environmental concerns about radio frequency emissions was prohibited by the Act. Accordingly, the court affirmed the judgment of the district court. View "T-Mobile Northeast LLC v. The Loudoun Cty. Bd." on Justia Law