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Cell Tower Case Beamed to High Court

The justices will decide whether cities must pay damages for blocking expansion of wireless phone networks.

January 20, 2005|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court debated the nuisance of cellphones Wednesday -- not their irritating habit of ringing at the wrong time, but rather the need for tens of thousands of towers to transmit their signals.

In the last decade, 140,000 cell towers have sprouted up around the nation, the cellphone industry says, and more are needed to eliminate "dead spots." But in many cities, officials contend the towers are unsightly. And, on occasion, officials have blocked wireless phone companies from erecting more towers.

On Wednesday, the high court took up a case from Rancho Palos Verdes to decide whether cities can be sued in federal court and forced to pay damages if they stand in the way of creating a wireless phone network.

The outcome of the legal battle could affect communities across the nation. The court's decision would give either city officials or wireless companies the upper hand in disputes over the building and location of towers.

The National League of Cities and the League of California Cities -- as well as lawyers for Los Angeles, San Diego and San Francisco -- were among those who urged the justices to block damage suits.

They said they feared cities could face millions of dollars in damages if they refused a company's bid to build a cell tower. Moreover, the potential for a crippling verdict could force city officials to automatically approve requests for new cellphone towers, they said.

However, lawyers for the cellphone industry told the court that Congress' goal of creating a national cellphone network could not be achieved if local officials could use their zoning power to block new towers.

Last year, the cellphone industry won an important victory in the U.S. 9th Circuit Court of Appeals. It ruled that under long-standing principles of civil rights law, persons are free to sue for damages if the government violates their rights. And the Telecommunications Act of 1996 gave providers of wireless phone service a right to build their networks, the appeals court said.

The California case did not involve a cellphone company. Instead, the 2004 appellate ruling cleared the way for amateur radio operator Mark Abrams to sue the city for denying him permission to broadcast from a 50-foot radio tower in his yard.

The Supreme Court took up the case, City of Rancho Palos Verdes vs. Abrams, to decide the larger question of whether federal law authorizes damage suits against cities over the building of cellphone towers.

During the argument, most of the justices indicated they were inclined to overturn the 9th Circuit and rule for the cities.

Washington lawyer Seth P. Waxman, the U.S. solicitor general in the Clinton administration, represented the amateur radio operator and the cellphone companies; he argued that Congress wanted to give these companies more clout to battle local officials.

"Entrenched zoning authorities were frustrating the creation of a national wireless network," he said, and lawmakers envisioned damage suits against zoning authorities who were unreasonable in blocking new towers.

But several justices said this notion seemed far-fetched.

"I cannot imagine Congress wanted to impose damages and attorney's fees on municipalities for one mistake," Justice Antonin Scalia said. "That is extraordinary."

Justice Anthony M. Kennedy said he had the same concern. "You are arguing that even the smallest municipality can be held liable for hundreds of thousand of dollars in damages," he said.

The lawyer who defended Rancho Palos Verdes said wireless phone companies could challenge the zoning board's decision in court, but they should not be able to sue for damages and legal fees.

"Very few municipalities could afford to enforce their own zoning laws" if they were subject later to suits for damages, attorney Jeffrey A. Lamken argued.

A Bush administration lawyer joined the case on the city's side, arguing that Congress did not intend to authorize money suits over these zoning disputes.

None of the justices spoke up to take the side of those arguing for open-ended lawsuits.

Chief Justice William H. Rehnquist, ailing with thyroid cancer, was absent Wednesday and has not appeared in court since mid-October.

However, court officials said he planned to give administer the oath of office to President Bush today.

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