KEY TAKEAWAYS

• The Eleventh Circuit Court of Appeals reversed a lower court decision that denied a special use permit for a telecommunications tower based upon the timeliness of filing suit 50 days after documentation of the denial was entered in the county's records.
• Although the Telecommunications Act of 1996 ("TCA") does not require actual notice of the denial, it does require some notice.
• In the case, "notice" was not provided until the county approved its minutes at the next month's meeting.
• The court's decision focused on state law in determining when the county's actions were final.
• A party challenging the denial of a tower permit must closely examine state law and local customs to determine when a "final action" has occurred that will trigger the 30-day time limit for filing under the TCA.

In Athens Cellular, Inc. v. Oconee Cty., Georgia, 886 F.3d 1094, 1104 (11th Cir. 2018), the Eleventh Circuit Court of Appeals examined what “notice” is required for a decision to be considered final under the TCA.  Verizon Wireless applied for a special use permit in Oconee County, Georgia to build a telecommunications tower. The county denied Verizon Wireless' application after a public hearing on August 5, 2014, and filed that denial according to “customary practice” in the Oconee County “Ordinance and Resolutions Book 20.” The next month on September 2, 2014, the county formally approved the August 5 minutes, and provided them online to Verizon Wireless. These minutes referenced the document filed in Book 20, and Verizon Wireless obtained a copy of that underlying document on September 10. On September 24, 2014, Verizon Wireless filed an action under the TCA challenging the county’s denial of the permit application.  The lower court held that the 30-day time limit ran from the filing of the denial in the county records on August 5, and therefore the legal challenge was not timely.

In reversing the lower court, the Eleventh Circuit noted that to begin the 30-day time limit to file a TCA action, the applicant must have some notice of the county’s final action and written reasoning (whether actual or constructive):

[to receive] no notice at all… would effectively deprive the parties of their right to judicial review under 47 U.S.C. § 332(c)(7)(B)(v)…

Congress must have intended that localities provide notice sufficient to allow applicants such as Verizon to vindicate their rights. Otherwise, the TCA's judicial review provisions, and the substantive rights they exist to protect, would be meaningless. Only when an applicant receives sufficient notice does the decision become “final,” and only then can the thirty-day clock begin to run.

Looking to state law, the court found that the only constructive notice Verizon Wireless could have had was from the Georgia Open Records Act, which provided the August meeting minutes would be final and available after approval in September. It was unreasonable to expect Verizon Wireless to otherwise discover the records in Book 20, and the “final decision” and “in writing” requirements of the TCA did not hinge on the applicant’s “diligence” to discover the written record.

The Athens case is the latest decision to clarify the meaning of the TCA's requirement that local decisions regarding “personal wireless service facilities” be “in writing and supported by substantial evidence contained in a written record.”  47 U.S.C. § 332(c)(7)(B)(iii).  In 2015, the Supreme Court in T-Mobile S., LLC v. City of Roswell, Ga., clarified the “substantial evidence contained in a written record” requirement need not be offered in the same writing as the written denial itself and can be contained in a separate record issued “essentially contemporaneously” with the denial, as long as the reasons are stated with “sufficient clarity” “clear enough and prompt enough to enable judicial review.” T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 818 (2015).

The Athens case highlights the traps that exist for tower applicants in determining when the time begins to run for challenging application denials.  Ideally, Congress would amend the TCA and require that actual notice be provided to applicants to trigger the 30-day time limit to challenge denials.  In the absence of such an amendment, the Athens case serves as a warning that permit applicants must be diligent in understanding local and state requirements as to when a decision constitutes a "final action" subject to judicial review. 

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