The Supreme Court of the United States (“SCOTUS”) delivered its opinion on T-Mobile South, LLC v. City of Roswell just weeks ago. Now, with the introduction of Senate Bill 142, many wonder how the two may affect each other.
To provide background, SB 142, which was voted out of committee Wednesday, seeks to regulate procedures governing applications for zoning and permits for critical infrastructure projects. This addresses local governments and specifically provides that “no local government shall provide for a moratorium with respect to any critical infrastructure projects,” defined as:
(A) Electrical power transmission lines;
(B) Electrical power substations;
(C) Cellular telephone towers and emergency 9-1-1 system facilities; or
(D)Natural gas transmission pipelines and power stations.
Prior to Wednesday’s committee meeting, water sewage treatment facilities, water reservoirs, water storage facilities, and sewer lines, and in-ground fiber optics systems were also included in the list of critical infrastructure projects, however, these items were removed from the bill during the meeting.
Cellular phone towers seem to be the most hotly debated item on the list, as many Georgia cities and counties have fought the idea of imposing moratoria on cell-towers in recent years, including but not limited to, Alpharetta, Bainbridge, Flowery Branch, Henry County, Marietta, and Moreland.
To understand how this legislation and the State stands to be affected by the recent SCOTUS decision, it is important to first understand what prompted the lawsuit. In short, T-Mobile argues that the City of Roswell violated the 1996 Telecommunications Act when it denied T-Mobile’s permit application but did not provide a clear statement of reasons for the denial.
This suit prompted SCOTUS to address issues such as economic consequences, public welfare, and effects on local governments in regard to any laws hindering the placement of new cell towers.
Though T-Mobile was the only cellular service provider party to the suit, T-Mobile and other interested companies argued that a finding for the City would adversely affect the economy. According to the Chamber of Commerce and the National Federation of Independent Businesses, the wireless industry has been a major driving force in global economic growth. They calculated that each instance of “local resistance” to the construction of a new wireless telecommunications tower will cost the United States economy millions of dollars. Similarly, PCIA-The Wireless Infrastructure Association noted that increased availability of “competitive wireless telecommunications services … will provide consumers with lower costs as well as with a greater range and options for such services.”
On the other hand, the City argued that T-Mobile’s concerns about the economy were without merit, partly because, in the City’s view, future innovations in wireless technology might render cell towers “a thing of the past.” According to the City, given the likelihood that new technology will supplant the need for permanent cell towers, allowing local governments to exercise their judgment on cell tower siting – subject to a plain reading of the law-would have no bearing on the telecommunication industry’s footing in the global economy.
In the official opinion handed down by SCOTUS, a locality’s denial of an application to build a cell phone tower “shall be in writing and supported by substantial evidence contained in a written record,” which requires localities to provide the reasons for such denial in writing. However, while those reasons do not have to appear in the written denial letter, they must appear in some written record, be sufficiently clear, and be provided or made accessible to the applicant essentially contemporaneously with the written denial notice.
Though it remains unclear exactly how the potential passage of SB 142 would serve to affect this recent decision, it appears likely that eliminating any local moratoria relating to cell tower construction would drastically decrease litigation arising out conflict with this opinion. Further, such may serve to encourage cellular service providers and local governments alike to exercise more discretion and responsibility when reviewing applications.