Ninth Circuit Rules That Damages and Attorneys’ Fees Are Available Under Federal Civil Rights Law for Violations of the Telecommunications Act of 1996
On Jan. 15, 2004, in Abrams v. City of Rancho Palos Verdes, the Ninth Circuit issued a ruling that municipalities may be held liable under Section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983) for violations of Section 704 of the Telecommunications Act of 1996 (“TCA”), codified at 47 U.S.C. § 332 (“Section 332”). Wireless carriers and tower owners with facilities in Ninth Circuit states1 should be encouraged that local governments there now face damages and attorneys’ fees for violating the TCA’s Section 332 in their denials of permits for placement of new antennas. The decision also should caution municipalities in any efforts to impede the construction of new antennas and infrastructure for wireless services.
Background and Analysis
The plaintiff, a resident of the City of Rancho Palos Verdes, Calif., was sued by the City for using two towers in his backyard to broadcast commercial transmissions. After a series of appeals through federal and state courts, the case found its way to the Ninth Circuit, which reversed the district court and held that Section 1983 remedies are available for violations of Section 332 on two separate bases: 1) Section 332’s remedial scheme was not sufficiently comprehensive to imply congressional intent to preclude Section 1983 relief, and 2) the savings clause in TCA Section 601 demonstrated Congress’s affirmative intent to preserve Section 1983 remedies.
The decision directly challenges recent Third and Seventh Circuit holdings to the contrary and gives a boost to numerous district courts siding with wireless carriers in the application of Section 1983 remedies in Section 332 cases.
This decision is important on several fronts. It secures the right of wireless carriers and tower owners in the Ninth Circuit to Section 1983 relief, including damages and attorneys’ fees that are otherwise not expressly available under Section 332. In addition, because Congress affirmatively preserved Section 1983 relief under the TCA’s savings clause, the case may have application to other provisions in the TCA, including Section 253, and therefore may offer Section 1983’s protections to wireline carriers as well.
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1 Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii.