Expanding wireless service to keep up with national demand requires new cell towers and infrastructure. But such towers are subject to zoning and regulatory approvals at the state and local levels, and states and localities, which traditionally control land use, do not always want new towers in their backyards. The Telecommunications Act of 1996, now part of the Federal Communications Act, strikes a compromise: state and local governments retain substantial power over siting and zoning decisions, but they do so subject to certain federally imposed substantive and procedural limitations. The Supreme Court interpreted one of these limitations two Terms ago in City of Arlington v. FCC, and it will confront another one when it hears argument Monday in T-Mobile South LLC v. City of Roswell.
At its simplest, Monday’s case is a statutory interpretation case. The specific provision at issue is 47 U.S.C. § 332(c)(7)(B)(iii), which requires that state or local government decisions denying wireless infrastructure requests “shall be in writing and supported by substantial evidence contained in a written record.” The question presented is whether a document stating that an application has been denied, but providing no reasons for the denial, satisfies the statutory requirement. The case is thus the latest in the Court’s November-sitting string of cases interpreting federal statutes, and the parties here make traditional statutory-interpretation arguments about the Act’s text, structure, and purpose.
But the case also raises questions of administrative law and federalism. The administrative law question is the extent to which the phrase “substantial evidence” – which also appears in the Administrative Procedure Act and other federal statutes – is an administrative-law term of art that implies a requirement of reason-giving, and if so, whether such reasons must appear in a particular form. The federalism question, which is lurking but not substantially developed in the parties’ briefs, is whether administrative law doctrines developed for federal agencies should apply in the same way to state and local governments – here, an elected city council.
This case arises from petitioner T-Mobile South’s application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia (the respondent). The company proposed a “monopine”—a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements in relevant city ordinances, and recommended approval of the application subject to several conditions. The city then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.
A federal district court held that the city had violated Section 332(c)(7)(B)(iii)’s “in writing” requirement by failing to provide, separate from the written record (here, the minutes and a hearing transcript), a written decision describing the reasons for the denial. The court granted an injunction ordering the city to approve the tower. The Eleventh Circuit reversed (and joined the short side of a circuit split), relying on intervening circuit precedent to hold that although a local government must give reasons for its denial, it suffices for those reasons to appear in the record rather than in a separate decision. The court concluded that the minutes of the meeting adequately explained the city’s reasons for denying T-Mobile South’s application.
T-Mobile South’s primary argument is that the phrase “supported by substantial evidence” is an administrative-law “term of art” that necessarily implies a requirement of reason-giving. For this proposition, it cites, among other cases, the seminal administrative-law decision of SEC v. Chenery Corp. (“Chenery I”). T-Mobile South also argues that the term “decision” (as opposed to a mere “notification”) implies the transmission of reasons. T-Mobile South contends that these reasons must be stated in the “decision” itself, not just somewhere in the “written record,” because requiring a court to sift through the entire record to find reasons frustrates the Act’s provision for expedited judicial review; indeed, it makes any judicial review difficult. And this sort of delay, T-Mobile South stresses, is at odds with the Act’s aim of avoiding local-government impediments to the expansion of wireless coverage. T-Mobile South’s only nod to federalism echoes City of Arlington, in which the majority rejected as “faux-federalism” an argument that the FCC lacked authority to interpret the statutory phrase “reasonable period of time.” T-Mobile South argues that there, as here, Section 332(c)(7)(B) “explicitly supplants state authority.” T-Mobile South has amicus support from the Chamber of Commerce, the National Federation of Independent Business, and several associations involved in providing wireless services.
The city does not make entirely clear whether its position is that the Act requires no reasons at all, or that reasons are required but may appear in the written record rather than in a separate decision. The city emphasizes that the plain text of Section 332(c)(7)(B)(iii) says nothing about reason-giving, unlike other parts of the Act that require findings and statements of reasons. Roswell also argues that there is nothing unusual, much less impossible, about courts sifting through the local-government record to conduct substantial-evidence review. And it urges that engrafting a reason-giving mandate onto the “in writing” requirement would burden local government decision making, which often is done by lay people, and could raise Tenth Amendment concerns. The National League of Cities and other associations of state and local government officials, as amici supporting Roswell, emphasize that a “heightened ‘in writing’ requirement would also be misaligned with the practical realities of how elected local government bodies operate and the resource limitations they face.”
The Solicitor General, as an amicus supporting neither party, takes the position that a statement of reasons is required, but that the requirement can be satisfied if the reasons are “included in a contemporaneously available written record.” The Solicitor General argues that the city did not meet this requirement here, because although the meeting minutes made the reasons sufficiently clear, the city did not provide those minutes contemporaneously. T-Mobile South’s reply characterizes the Solicitor General’s proposed approach as an “operational nightmare” and contends that, in any event, the record fails to convey the council’s reasons with sufficient clarity. The reply brief also chides Roswell for its “woe is me” attitude, pointing out that state and local governments are fully capable of stating their reasons, and are routinely required to do so under a range of state and local laws.
What to watch for
One issue to watch for is the extent to which the Court (which now has three former administrative law professors) engages with T-Mobile South’s characterization of substantial evidence as an administrative law term of art implying reason-giving. It is not clear that the term carries that implication. Substantial-evidence review, which the Administrative Procedure Act prescribes for judicial review of formal agency proceedings, calls for courts to ensure that the administrative record provides some minimum quantum of evidentiary support for the decision. In Dickinson v. Zurko, for example, the Court said that the standard asks “whether a ‘reasonable mind might accept’ a particular evidentiary record as ‘adequate to support a conclusion’”; the Court has analogized it to the standard for reviewing jury findings, although the two standards are not identical. Federal administrative law surely does require agencies to give reasons for their decisions, and that reason-giving requirement and the substantial evidence requirement often travel together. But the reason-giving requirement itself is usually traced to Chenery I, a pre-APA doctrine of administrative common law, or to the APA’s arbitrary and capricious standard – not to the substantial-evidence standard. (The APA also requires agencies to state findings of fact and conclusions of law in formal proceedings). And if the Court is looking to administrative law principles more broadly, it’s also the Court’s practice, stated in a number of cases involving federal agencies, to “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”
All of this raises the question of the extent to which principles of administrative law developed in the context of the Administrative Procedure Act and federal agencies should apply here (the APA does not apply to state and local entities). It’s hard to argue with T-Mobile South’s point that a clear, separate statement of reasons facilitates judicial review, or that reason-giving requirements help ensure deliberation by agencies and fairness to affected parties. But do principles of federalism change the analysis when state and local decision making is at issue? The Court has no clear doctrines guiding such analysis. Indeed, the case shines light on a doctrinal gap that Abbe Gluck and a student note have recently identified: what principles of interpretation and administrative law apply when federal courts review actions of state and local entities acting pursuant to federal statutory schemes? T-Mobile South rightly notes that the Court rejected a federalism argument under Section 332(c)(7)(B)(ii) in City of Arlington, but that reasoning is not on all fours here; there, the question was whether a federal agency (the FCC) or a federal court would interpret the phrase “reasonable period of time” in Section 332(c)(7)(B)(ii), and the Court’s point was that state law was displaced either way. Here, the question is how robustly to interpret the “in writing” requirement – must reasons be provided at all? Must they be in a separate “decision” or simply evident in the record? Does the requirement apply in the same way to elected and unelected state and local bodies? The Justices may think that principles of federalism counsel in favor of meddling less in state and local procedures, at least where the reasons for the decision are evident in the record. On the other hand, the Justices may be persuaded by T-Mobile South that, especially given Congress’s evident desire to facilitate the development of wireless access, requiring state and local governments to give a written account of their reasons for denying wireless infrastructure applications is not too much to ask.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioners in City of Arlington v. FCC, but the author of this post is not affiliated with the firm.]