8th Circuit Court of Appeals Holds TCA Claims are not Moot Where County Failed to Provide Requested Permits

The Federal Telecommunications Act ("TCA") is a federal regulatory enactment that most commonly affects the day-to-day operations of municipalities.  A recent decision of the 8th Circuit Court of Appeals provides some helpful insights into application of the TCA.  The case is USCOC of Greater Missouri, LLC v. County of Franklin, Missouri, 2011 WL 710484 (8th Cir. 2011), and the following summary was prepared by John Kilper, who is a member of our Municipal Law Practice Group.

In USCOC of Greater Missouri, USCOC (“U.S. Cellular”) filed an application for a conditional use permit (CUP) to construct a cellular telephone tower in Franklin County, Missouri.  2011 WL 710484, at *1.  The Franklin County Planning and Zoning Commission (“Commission”) subsequently denied the application and that decision was affirmed by Board of Zoning Adjustment (BZA).  Id.  U.S. Cellular filed an action in federal court challenging the BZA’s decision, alleging claims under the Federal Telecommunications Act (“TCA”).  The district court found that the BZA’s written decision denying the CUP application did not comply with the TCA requirements because it did not contain any explanation of the reasons for the denial.  Id. Accordingly, the district court remanded the action to the BZA for a new hearing and new written decision.  Id.  Following the remand, the BZA held a new hearing and issued a new written decision this time granting the CUP application.  Id.  Shortly thereafter, the Mary R. Fritz Revocable Trust (“Fritz Trust”) initiated a suit in state court requesting that the BZA decision of approval be set aside.  Id.

After learning of these developments, the district court issued an order requesting that the parties file briefs addressing whether U.S. Cellular’s claims should be dismissed as moot.  In response, U.S. Cellular asserted that its claims were not moot and that the district court should remain involved because although U.S. Cellular’s application for the CUP had been granted, it still was barred from starting construction until the Fritz Trust matter was resolved.  Id. at *2.  The district court subsequently dismissed the case finding that U.S. Cellular’s claims directed at the denial of its CUP application were moot.  Id.

The Eighth Circuit reversed, holding that U.S. Cellular’s claims were not moot because “U.S. Cellular still [had] not achieved the relief sought in its complaint—namely, its request that Franklin County remove the barriers standing in the way of erection of a telecommunications tower.”  Id. at *3.  The court reasoned that the TCA encompasses all aspects of the wireless service facilities construction process.  Id. at *4.  It found that
 

without power to mandate any and all permits contemplated by the federal claim, we [the court] would essentially perpetuate “an end run around the requirements of the TCA and thereby allow local regulatory agencies to subvert a federal policy by elevating zoning authority over congressional policy as enacted into law via the TCA.”

Id. at *4 (quoting Ogden Fire Co. No. 1 v. Upper Chichester Township, 504 F.3d 370, 396 (3rd Cir. 2007).

In addition, the court rejected the argument made by the Fritz Trust that the federal court does not have authority to prevent the Fritz Trust from pursuing its state-court claims.[1]  Id. at *4-5.  The court held that under the All Writs Act, 28 U.S.C. § 1651(a), federal courts have authority to preserve their jurisdiction over pending disputes by issuing extraordinary writs ordering a non-party to act.  Id. at *5.  The court concluded that such a writ was necessary in this case to enjoin any collateral attacks or any other such action that would prevent U.S. Cellular from moving forward with construction of the tower.  The court subsequently remanded the case to the district court to implement the judgment by “issuing all orders necessary to protect the jurisdiction of the federal courts.”  Id.

Judge Smith dissented, arguing that although the TCA allows federal courts to review the decisions of local authorities to ensure compliance with the TCA, it does not permit the federal court to guarantee approval of the construction permits.  Id. at *5-6.  Judge Smith explained that he would have found that U.S. Cellular’s TCA claim was moot after the BZA granted the CUP.  Id. at *8.

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