Athens Cellular Inc. v. Oconee County, Georgia

Case: 15-12067 Date Filed: 04/02/2018 Page: 1 of 54 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-12067 ________________________ D.C. Docket No. 3:14-cv-00087-CDL ATHENS CELLULAR, INC., d.b.a. Verizon Wireless, Plaintiff - Appellant, versus OCONEE COUNTY, GEORGIA, et al., Defendants - Appellees. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (April 2, 2018) Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN,∗ District Judge. TJOFLAT, Circuit Judge: ∗ Honorable Lewis A. Kaplan, Senior District Judge for the United States District Court for the Southern District of New York, sitting by designation. Case: 15-12067 Date Filed: 04/02/2018 Page: 2 of 54 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 2 Case: 15-12067 Date Filed: 04/02/2018 Page: 3 of 54 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 ...

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