As reported in Law360 [subscription required] on August 13, both the Fourth and the Eleventh Circuits issued decisions on the same day affirming lower court actions that had rejected local governments denial of permission to cell tower companies to build out cell tower infrastructure. There continue to be attempts by some municipalities and counties to improperly forestall cell tower projects, hindering the deployment of a robust 5G networks. So these two new appeals court decisions are welcome, especially coming on the day.
In one case, the Fourth Circuit said that Culpeper County, Virginia, officials let the 150-day clock run out without approving or denying the application, and that, under federal law, that was sufficient for it to be "deemed granted." In other words, the locality can simply sit on the application and "run out the clock."
In the other case, the Eleventh Circuit determined that Brevard County, Florida, couldn't deny a conditional-use permit to build a cell tower for "solely aesthetic concerns." The appeals court agreed with a lower court's finding that those concerns about the tower intended to enhance service for T-Mobile weren't supported by substantial evidence, adding that "we have consistently held that generalized aesthetic objections, standing alone, cannot justify denial of an otherwise qualified application." Therefore, according to the court, " the district court correctly concluded that the county's factual support for its decision fell short of the substantial evidence requirement."
As the Law360 report concludes: "The Telecommunications Act of 1996 is the law that most cell tower disputes are filed under, and it forbids localities from regulating cell towers in a way that prohibits telecom services. Local governments also can't deny permits based on environmental concerns, which courts have generally interpreted to include health concerns, and applications are deemed granted if municipalities leave them untouched for long enough."
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