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Last week’s decision from the U.S. Supreme Court involving a California man who sought a permit for a radio tower on his property is considered a boon to dozens of municipalities across the country battling telecommunications giants over construction of cell phone towers. In a 9-0 decision, the high court held that the city of Rancho Palos Verdes, near Los Angeles, was not liable for attorney fees under federal civil rights law for refusing to allow the use of a tower for commercial purposes. The decision also included strong indications that the plaintiff could not use civil rights law to recover money damages. Although City of Ranchos Palos Verdes v. Abrams, 03-1601, involved one lone ham radio enthusiast who wanted a permit for a tower to operate a two-way radio business, the decision is expected to affect dozens of cases nationwide in which municipalities are trying to use their zoning powers to block the construction of cell phone towers, which residents say are unsightly. Justice Antonin Scalia’s opinion, which reversed the Ninth Circuit U.S. Court of Appeals, said that the plaintiff, Mark Abrams, could not pursue attorney fees under a Section 1983 civil rights claim. Abrams had sued the municipality claiming that its failure to issue a permit for the tower violated his rights under the Telecommunications Act of 1996. He also sought money damages and attorney fees in a Section 1983 claim. The federal civil rights law, 42 U.S.C. 1983, enables plaintiffs to recover damages and fees if a “state actor” discriminates against them. In some cases, courts have allowed plaintiffs to use Section 1983 claims against states if the underlying statute in their case does not provide a specific remedy. But such was not the case here, the court found. The March 22 ruling, according to the attorney for Rancho Palos Verdes, Jeffrey Lamken, will prevent local governments from caving into the demands of telecommunications companies out of fear of having to pay the companies’ legal fees. “It means that local governments can make their own unbiased determination without fear that a decision will cause a tremendous economic impact on them,” said Lamken, a partner in the Washington office of Houston-based Baker Botts. The plaintiff’s attorney, Seth Waxman, a partner in Wilmer Cutler Pickering Hale and Dorr’s Washington office, did not return phone calls. The Telecommunications Act, revised in 1996 to facilitate wireless service, requires local governments to consider applications for cell towers quickly and prohibits them from using their zoning laws to block wireless service to the public. The court’s decision acknowledged the effect that a Section 1983 remedy would have on municipalities. “Liability for attorneys,” wrote Scalia, “would have a particularly severe impact � making local governments liable for the (often substantial) legal expenses of large commercial interests.” Leigh Jones is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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