Telecommunications Act's "In Writing" Requirement Is Satisfied By An Explanation That Allows For Meaningful Review
HELCHER v. DEARBORN COUNTY (February 9, 2010)
Cincinnati Bell Wireless provides wireless services to, among others, the people of Dearborn County, Indiana. In order to improve signal coverage in the area, Cincinnati Bell decided it needed a new cell phone tower. It selected a piece of agriculturally zoned property for the tower and applied for a conditional use permit. The company worked with two consultants to the local Zoning Board in completing its application. The consultants recommended that the granting of the permit, although it was the first time they had recommended the construction of a new tower over the co-location of transmitters onto existing structures. The Board met and heard from the consultants, Bell, and a number of local landowners who opposed the tower. The Board denied the application. At a later meeting, the Board denied Bell's request to reconsider the denial and approved the minutes of the earlier meeting. Bell sued the Board, alleging several violations of the Telecommunications Act of 1996. Specifically, Bell alleged that the decision was not based on substantial evidence, that the Board minutes did not constitute a sufficient written decision, that the Board unreasonably discriminated against Bell, and that the decision effectively denied wireless services. The district court granted summary judgment to the defendants. Bell appeals.
In their opinion, Judges Flaum, Rovner, and Wood affirmed. Bell raised the same four arguments. The Court started with the "in writing" requirement of the Telecommunications Act, a question of first impression in the Seventh Circuit. Other circuits' holdings range from allowing a "Denied" stamp on an application to demanding detailed conclusions linked to specific evidence. Noting that the purpose of the requirement is to ensure meaningful judicial review, the Court joined several other circuits in concluding that the requirement is met if there is a sufficient explanation of the Board's reasons to allow a court to evaluate the supporting evidence. Here, the "writing" is the seventeen pages of minutes. The Court concluded that they were sufficient under the Act. They described the issues, the evidence presented by both sides, the concerns of the Board, and the specific Ordinance provisions on which the Board based its denial. On the Court’s review of Bell’s argument that the denial was not supported by substantial evidence, it considered each of the three Ordinance provisions separately. Although the Court found the evidence in support of one of the Ordinance violations thin, it concluded that the other two were supported by substantial evidence. Finally, the Court rejected the “effectively prohibit” and “unreasonably discriminates” arguments. On the former, Bell failed to show that alternatives did not exist. On the latter, Bell presented no evidence of another carrier that was treated more favorably.
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