[*]Peter M. Degnan, Scott A. McLaren and T. Michael Tennant, all with Alston & Bird in Atlanta, Georgia, were the first to successfully litigate a claim on behalf of a telecommunications provider under Section 704 of the Telecommunications Act of 1996 ("Telecommunications Act" or "Act"). Upon filing suit under Section 704 of the Act, Degnan, McLaren and Tennant persuaded the United States District Court for the Northern District of Georgia, Judge G. Ernest Tidwell, to force a local county government to grant the cellular provider a permit to construct a cellular communications tower that had previously been denied by the county. See BellSouth Mobility v. Gwinnett County, Georgia, 944 F. Supp. 923 (N.D. Ga. 1996). Degnan, McLaren and Tennant have also advised GTE Mobilnet, Inc. and other wireless providers on Telecommunications siting issues outside the State of Georgia, specifically in Alabama, Florida, North Carolina, and Wisconsin. Peter M. Degnan is a partner at the Atlanta law firm of Alston & Bird. His practice focuses primarily on land use law with emphasis on litigation. Scott A. McLaren is an associate in his sixth year of practice at Alston & Bird. He practices primarily in the areas of land use litigation, and products liability litigation. T. Michael Tennant, also a partner at Alston & Bird, focuses his practice on land use law and the regulation of real estate.

[1] Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (to be codified at 47 U.S.C. § ___ et. seq.) (stating that the Act seeks to in part "encourage the rapid deployment of new telecommunications technologies").

[2] Microwave Journal, July 1, 1996, Vol. 39, No.7.

[3] John J. Keller, With Cellular Towers Sprouting All Over, Towns Begin to Rebel, Wall St. J., Jul. 2, 1996, at A1.

[4] Id.

[5] Id. See also Spring Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996) (resulting from City of Medina's enactment of a six-month moratorium on issuing permits for wireless communications facilities such as cellular towers).

[6] FCC licenses for cellular providers typically grant a provider the privilege of providing wireless communications services, while at the same time require that quality services be provided by the licensee.

[7] BellSouth Mobility, 944 F. Supp. at 927.

[8] H.R. Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124.

[9] H.R. Rep. No. 104-204, at 47-48 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 11. Section 253 of the Act accomplishes this purpose by removing barriers to entry. Section 253(a) states that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." § 253(a), 110 Stat. 70 (to be codified at 47 U.S.C. § 253(a)). As stated in the legislative history of section 253, this section is "intended to remove all barriers to entry in the provision of telecommunication services. [This new section] preempts any State and local statutes and regulations, or other State and local legal requirements, that may prohibit or have the effect of prohibiting any entity from providing interstate or intrastate telecommunications services." H.R. Conf. Rep. No. 104-458, at 126 (1996), reprinted in 1996 U.S.C.C.A.N. 138.

[10] The term "personal wireless service facility" is defined in the Act as a facility for the provision of "commercial mobile services, unlicensed wireless services, and common-carrier wireless exchange access services" which, of course, encompasses cellular transmission towers. § 704(c)(7)(C)(i-ii), 110 Stat. 152 (to be codified at 47 U.S.C. § 332(c)(7)(C)(i-ii)).

[11] See BellSouth Mobility, 944 F. Supp. at 929 (granting relief under both the Act and state mandamus law).

[12] See id.

[13] § 704(a)(7)(B), 110 Stat. 151-52 (to be codified at 47 U.S.C. § 332(a)(7)(B)).

[14] Id.

[15] Id. § 704(a)(7)(B)(i)(I) (to be codified at 47 U.S.C. § 332(a)(7)(B)(i)(I)).

[16] H.R. Conf. Rep. No. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.

[17] Id.

[18] Id.

[19] Id.

[20] Spring Spectrum, 924 F. Supp. at 1039-1040.

[21] Id. at 1040.

[22] Id.

[23] § 704(a)(7)(B)(ii), 110 Stat. 151 (to be codified at 47 U.S.C. § 332(c)(7)(B)(ii)).

[24] H.R. Conf. Rep. No. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223.

[25] Id.

[26] Id.

[27] Spring Spectrum, 924 F. Supp. at 1040.

[28] Id. at 1037.

[29] Id.

[30] Id. at 1040.

[31] Id. at 1038.

[32] See, e.g., BellSouth Mobility, 944 F. Supp. at 926 (describing comments made at permit hearing by a homeowner, who spoke in opposition to the construction of the proposed cellular monopole and claimed that its emissions might cause adverse health effects).

[33] See BellSouth Mobility, 944 F. Supp. at 926 ("[T]he critical question before the court is whether the board of commissioner's decision to deny plaintiffs' application is supported by 'substantial evidence contained in a written record.'" (Internal citations omitted.))

[34] Given the intent of the Act to accelerate the development of telecommunications technologies, the language "in writing" and "contained in a written record" appear to mandate that a governmental entity, when denying an application to place wireless facilities, must articulate the reasons for the denial and the evidence upon which said denial is based. H.R. CONF. REP. NO. 104-458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. Absent this interpretation, the "written record" and "in writing" language appears to be superfluous. A contrary interpretation would violate the maxim of statutory construction which presumes that each word contained in a statute is to be given meaning and effect whenever possible. See, e.g.,Weinberger v. Hinson, Wescott & Dunning, Inc., 412 U.S. 609 (1973); Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961); D. Ginsberg and Sons v. Popkin, 285 U.S. 204 (1931).

[35] H.R. CONF. REP. NO. 104-458, at 208, reprinted in 1996 U.S.C.C.A.N. 124, 223.

[36] Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also America Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522 (1981); Northport Health Servs., Inc. v. NLRB, 961 F.2d 1547, 1550 (11th Cir. 1992); Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir. 1989); BellSouth Mobility, 944 F. Supp. at 924.

[37] Northport Health Servs., Inc. v. NLRB, 961 F.2d 1547, 1550 (11th Cir. 1992).

[38] BellSouth Mobility, 944 F. Supp. 923 (N.D.Ga. 1996) (quoting Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir. 1989).).

[39] Administrative Procedure Act, 5 U.S.C. § 706(2)(A-E) (1988).

[40] Color Pigments Mfrs. Ass'n v. OSHA, 16 F.3d 1157, 1160 (11th Cir. 1994) (quoting Asbestos Info. Ass'n v. OSHA, 727 F.2d 415, 421 (5th Cir. 1984)).

[41] Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 135 (5th Cir. 1986) (quoting Hornsby v. Allen, 326 F.2d 605, 608-09 (5th Cir. 1964); Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir. 1991).

[42] Id. See also Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, Va., 865 F.2d 77 (4th Cir. 1989) (acts of zoning enforcement rather than rule-making are not legislative); Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995) (firing of clerk involved the application of policy to a specific party and was not legislative in nature); Triomphe Investors v. City of Northwood, 835 F. Supp. 1036 (N.D. Ohio 1993), aff'd, 49 F.3d 198 (6th Cir.), cert denied, 116 S.Ct. 70 (1995) (city council was acting in administrative or quasi-judicial capacity in denying property owner's application for a land use permit). But see Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993) (city council passed a new ordinance blocking plaintiff's development, which was legislative in nature); City of New Orleans v. Duke's, 427 U.S. 297 (1976) (city council acted legislatively in amending ordinance which prevented plaintiff from conducting her business); Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036 (W.D. Wash. 1996) (in enacting ordinance declaring six-month moratorium on communications facilities, city acted in its legislative capacity); Nasser v. City of Homewood, 671 F.2d 432 (11th Cir. 1982) (rezoning of plaintiff's property was legislative act); South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir. 1974) (refusal to rezone property was legislative act).

[43] See generally Developments in the Law-Zoning, 91 Harv. L. Rev., 1427, 1510-11 (1978); Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984); Crymes v. DeKalb County, Ga., 923 F.2d 1482, 1485 (11th Cir. 1991).

[44] See also Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1389 (11th Cir. 1993) ("The district court appears to have put itself in the place of the city council and made a de novo review of whether it would have taken the same action the city council did. Such scrutiny impinges upon the right and authority of municipalities to make land use decisions and would alter the allocation of functions between municipal governments and federal courts. This Court has admonished district courts not to usurp the role of city councils and zoning boards."); Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989) (holding that federal courts do not sit as zoning boards of review and should be most circumspect in determining that rights have been violated in quarrels over legislative zoning decisions).

[45] 47 U.S.C. § 332(c)(7)(B)(v).

[46] "The conferees intend that the court to which a party appeals a decision under § 332(c)(7)(B)(v) may be the Federal district court in which the facilities are located or in a State court of competent jurisdiction, at the option of the party making the appeal . . ." H.R. CONF. REP. NO. 104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 (emphasis supplied).

[47] In BellSouth Mobility, the county that had denied plaintiffs/appellants' application for a permit to place a cellular tower attempted to file expert affidavits supporting its position after rendering the denial, and during the pendency of the appeal under the Act. The Court refused to consider the expert affidavits and based its decision only on the evidence presented to the governmental decision-maker below.

[48] In BellSouth Mobility, a county ordinance authorized grant of a tall structure permit if certain criteria were met by the applicant. The plaintiff/appellant cellular provider submitted, with its application for a permit to construct a cellular monopole, overwhelming evidence which satisfied the stated criteria including: evidence showing that the proposed monopole posed no hazard to navigable airspace; evidence indicating that the monopole would have no adverse effect upon residential property values; evidence demonstrating that the cellular monopole's radio frequency emissions would be well within FCC limits; and that the structure would be aesthetically compatible with the surrounding landscape. Because of this overwhelming evidence submitted to the county, the court held that generalized concerns stated in an argument against the monopole were not sufficient to authorize the county's denial of the permit. Id.

[49] 47 U.S.C. § 332(c)(7)(B)(v).

[50] In BellSouth Mobility, the applicant was a cellular communications company that wished to construct a cellular monopole on a specific site in Gwinnett County, Georgia. The applicant entered into a lease agreement with individuals that owned the proposed site. This option and lease agreement authorized rental payments to the landowners should the monopole be constructed. Although the landowners never applied for any permit to construct the facility, when the cellular provider was denied its permit, the landowners filed suit under the Act along with the provider. The Court ruled in favor of both the provider and the landowners in ordering the county to grant them a permit to construct the monopole.

[51] H.R. CONF. REP. NO. 104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223.

[52] 47 U.S.C. § 332(c)(7)(B)(v).

[53] H.R. CONF. REP. NO. 104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 (emphasis supplied).

[54] In BellSouth, the Appeal and Complaint was filed on May 21, 1996. A hearing on the issues was scheduled on an emergency basis and took place on August 1, 1996, at time in which almost all courts were closed during the Atlanta Olympic Games. Judge G. Ernest Tidwell certified his decision on August 13, 1996. Thus, the District Court, acting in its appellate capacity under the Act, rendered a final decision less than three months from the date the Appeal of Complaint was filed.. See Bellsouth Mobility, Inc. v. Gwinnett County, 944 F. Supp. 923, 925- 926 (N.D.Ga. 1996).

[55] § 704(a)(7)(B)(v), 110 Stat. 152.

[56] Id.

[57] H.R. Conf. Rep. No. 104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223.

[58] Determining whether or not administrative remedies have been exhausted can be quite tricky. For instance, if a party is aggrieved by a decision of a local zoning board in Alabama, Section 11-52-81 of the Alabama Code authorizes a direct appeal to a state circuit court. Alabama decisional law interpreting this remedy holds that the appeal is purely administrative in nature. See City of Gadsden v. Entrekin, 387 So.2d 829 (Ala. 1980) where party was required to pursue and exhaust the administrative remedy contained in Section 11-52-81, prior to seeking judicial relief. Arguably, then, this remedy must be exhausted prior to filing suit under the Act. However, § 11-52-81 by requiring de novo review requires full-blown discovery and authorizes a jury trial to review the decision of the local zoning board. Given this fact, the Alabama scheme for reviewing a decision of a local zoning board in the telecommunications context very well may violate the Supremacy Clause as it is directly in conflict with the expedited treatment to be given applications for telecommunications facilities articulated by the Act. See Ala. Code § 11-52-81; . §704(a)(7)(B)(v), 110 Stat. 152.

[59] Bellsouth Mobility, 944 F. Supp. at 923.

[60] Id. at 924-925.

[61] Id.

[62] Id. at 925.

[63] Id. at 924-926. The documentary evidence filed by BellSouth in support of its application included line-of-sight photographs illustrating the view of the proposed monopole from various surrounding locations; an appraisal report evidencing that the monopole would have no adverse effect upon property values; a report indicating that the monopole would present no hazard to navigable airspace in the area; and boundary survey and site plans which demonstrated the nature of the proposed structure and which evidenced the distances from the proposed site to adjacent parcels of land and residential dwellings.

[64] Bellsouth Mobility, 944 F. Supp. at 925-926.

[65] Id. at 926.

[66] Id at 926 (quoting letter formally notifying plaintiffs that their "application for a Tall Structure Permit was denied at the Board of Commissioners meeting on April 23, 1996").

[67] Bellsouth Mobility, 944 F. Supp. at 926. See also H.R. Conf. Rep. No. 104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 authorizing an appeal in the Federal District where the facility is to be constructed.

[68] Bellsouth Mobility, 944 F. Supp. at 928. (internal citations omitted)

[69] Id. at 929.. See also O.C.G.A. § 9-6-20 ("whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance . . .").

[70] Bellsouth Mobility, 944 F. Supp. at 928.

[71] Id. at 929.

[72] Id.

[73] Id. (internal citations omitted).

[74] Id.