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Title Nextel Partners, Inc. v. Kingston Township

Date 2002

By Alito

Subject Misc

Contents

Page 1

70 of 238 DOCUMENTS

NEXTEL PARTNERS INC., Appellant v. KINGSTON TOWNSHIP; WILLIAM F. ANZALONE; TINA M. ANZALONE; ERIC WOLFSON; STEFANIE WOLFSON; CHRISTOPHER L. HACKETT; RAMAH P. HACKETT; STEVEN J. KERZWEIL; SUSAN Z. WILKINSON; ROBERT J. FIORELLI; JOANNE FIORELLI; ROBERT C. RILEY; SHERRY L. RILEY; HARVEY J. REISER; KATHLYN M. REISER; JOSEPH ALLEN MOORE/ MICHAEL CORGAN, T/A WOODBRIDGE ASSOCIATES

(Intervenors in D.C.)

No. 00-2502

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

286 F.3d 687; 2002 U.S. App. LEXIS 6688

September 6, 2001, Argued

April 11, 2002, Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (Dist. Court No. 3:99-CV--2097). District Court Judge: Honorable James M. Munley.

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant telecommuni- cations venture challenged an order of the United States District Court for the Middle District of Pennsylvania, which dismissed its action alleging that appellee township violated the Telecommunications Act of 1996 (TCA), 47

U.S.C.S. § 332(c)(7)(B)(i), and 42 U.S.C.S. § 1983. OVERVIEW: The telecommunications venture wished to construct a tower on private property in the township. The telecommunications venture alleged that a township ordinance violated 47 U.S.C.S. § 332(c)(7)(B)(i) in that it did not allow wireless telecommunications facilities any- where in the township. While the action was pending, the township amended its ordinance to permit the construc- tion of wireless telecommunications facilities. The court held that to the extent that the telecommunications ven- ture alleged that the township violated the TCA by failing to approve the construction of the proposed facility, the claim did not fall within 47 U.S.C.S. § 332(c)(B)(7)(v) because the venture never filed a request for approval of its proposed facility, and thus the township did not fail to act within the meaning of the TCA. To the extent that the TCA claim alleged that the ordinance was invalid on its face, the amendment of the ordinance rendered that

claim moot. The 42 U.S.C.S. § 1983 claim was properly dismissed because the TCA implicitly precluded an ac- tion under § 1983 by creating a comprehensive remedial scheme that furnished private judicial remedies.

OUTCOME: The court affirmed the dismissal of the ac- tion.

LexisNexis(R) Headnotes

Communications Law > Federal Acts > Telecommunications Act

HN1 See 47 U.S.C.S. § 332(c)(7)(B)(i). Communications Law > Federal Acts > Telecommunications Act

HN2 The Telecommunications Act of 1996 allows an aggrieved party to file an action in a court of competent jurisdiction within 30 days after a final action or failure to act by a state or local government or any instrumentality thereof. 47 U.S.C.S. § 332(c)(7)(B)(v). Communications Law > Federal Acts > Telecommunications Act

HN3 State and local regulations may not either un- reasonably discriminate among providers of functionally equivalent services or prohibit or have the effect of pro- hibiting the provision of personal wireless services. 47

U.S.C.S. § 332(c)(7)(B)(i). State and local governments and instrumentalities are also enjoined to act on any re- quest for authorization to place, construct or modify per- sonal wireless service facilities within a reasonable pe- riod of time after the request is duly filed taking into ac- count the nature and scope of such request. 47 U.S.C.S.

§ 332(c)(7)(B)(ii). In addition, any person adversely af-

286 F.3d 687, *; 2002 U.S. App. LEXIS 6688, **1

Page 2

fected by any final action or failure to act by a state or local government or any instrumentality thereof that is inconsistent with 47 U.S.C.S. § 332(7)(B)(7) may, within

30 days after such action or failure to act, commence an action in any court of competent jurisdiction. 47 U.S.C.S.

§ 332(c)(7)(B)(ii).

Communications Law > Federal Acts > Telecommunications Act

HN4 If a state or local government or instrumentality fails to act on a request for authorization to place, con- struct, or modify a personal wireless service facility, 47

U.S.C.S. § 332(c)(B)(7)(iii), that "failure to act" is action- able under 47 U.S.C.S. § 332(c)(B)(7)(v). Communications Law > Federal Acts > Telecommunications Act

HN5 In the absence of a request to approve the con- struction of a facility, the failure to approve the facility is not a "failure to act" within the meaning of 47 U.S.C.S. §

332(c)(B)(7)(v).

Constitutional Law > The Judiciary > Case or

Controversy > Mootness

HN6 Under U.S. Const. art. III, § 2, federal judicial power extends only to cases and controversies. If a claim no longer presents a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it. This requirement must be met through all stages of fed- eral judicial proceedings, trial and appellate. If a claim is based on a statute or ordinance that is amended after the litigation has begun, the amendment may or may not moot the claim, depending on the impact of the amendment.If an amendment removes those features in the statute being challenged by the claim, any claim for injunctive relief becomes moot as to those features. On the other hand, an amendment does not moot a claim for injunctive relief if the updated statute differs only insignificantly from the original. Similarly, a request for a declaratory judgment that a statutory provision is invalid is moot if the provision has been substantially amended or repealed. Constitutional Law > Civil Rights Enforcement > Civil Rights Act of 1871 > Coverage

HN7 42 U.S.C.S. § 1983 provides a private right of action against any person who, acting under color of state or territorial law, abridges rights, privileges, or immuni- ties secured by the Constitution and laws of the United States. In order to seek redress under § 1983, a plain- tiff must assert the violation of a federal right, and not merely a violation of federal law. Thus, a plaintiff alleg- ing a violation of a federal statute may not proceed under

§ 1983 unless (1) the statute creates enforceable rights, privileges, or immunities within the meaning of § 1983 and (2) Congress has not foreclosed such enforcement of the statute in the enactment itself. A plaintiff asserting

a statutory claim under § 1983 has the initial burden of demonstrating that the statute creates a substantive right. If the plaintiff carries this burden, a rebuttable presump- tion arises that a § 1983 claim is available, and the burden shifts to the defendant to show that a § 1983 action was explicitly or implicitly precluded by the statute. One way that a statute may implicitly preclude a § 1983 action is by creating a comprehensive remedial scheme. A key distinction between schemes that are sufficiently compre- hensive to preclude a § 1983 claim and those that are not is the availability of private judicial remedies under the statute giving rise to the claim.

Communications Law > Federal Acts > Telecommunications Act

Civil Procedure > Costs & Attorney Fees > Attorney Fees

HN8 The Telecommunications Act of 1996 makes no provision for attorney's fees.

Civil Procedure > Costs & Attorney Fees > Attorney Fees

HN9 It is the general rule in this country that unless Congress provides otherwise, parties are to bear their own attorney's fees.

Governments > Legislation > Statutory Remedies & Rights

HN10 When a statute creates a private right of action but does not specify what remedies are available, the avail- ability of all appropriate remedies is generally presumed. Communications Law > Federal Acts > Telecommunications Act

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Coverage

HN11 The Telecommunications Act of 1996 does not create a right that can be asserted under 42 U.S.C.S. §

1983 in lieu of the TCA's own remedial scheme. COUNSEL: CHRISTOPHER H. SCHUBERT, MICHAEL J. GAVIN (Argued), Riley, Riper, Hollin & Colagreco, Exton, PA. JAMES C. DALTON, Riley, Riper, Hollin & Colagreco, Paoli, PA, Counsel for Appellant.

ZYGMUNT R. BIALKOWSKI, JR. (Argued), Margolis Edelstein, Scranton, PA, Counsel for Appellee, Kingston Township.

DONALD H. BROBST (Argued), Rosenn, Jenkins

& Greenwald, LLP, Wilkes-Barre, PA. WILLIAM F. ANZALONE, Anzalone Law Offices, Wilkes-Barre, PA, Counsel for Appellees, William F. Anzalone et al.

JUDGES: Before: BECKER, Chief Judge, ALITO and

BARRY, Circuit Judges.

286 F.3d 687, *; 2002 U.S. App. LEXIS 6688, **1

Page 3

OPINIONBY: ALITO

OPINION:

*689 OPINION OF THE COURT ALITO, Circuit Judge:

Nextel Partners, Inc. ("NPI"), a wireless telecom- munications joint venture, wishes to construct a per- sonal wireless communications tower on private prop- erty in Kingston Township, Pennsylvania. Unable to ob- tain variances, NPI entered into negotiations with the Township but never formally applied for a building per- mit. Instead, NPI filed this action in federal district court, asserting claims under a provision **2 of the federal Telecommunications Act of 1996 ("TCA"), 47 U.S.C. §

332(c)(7)(B)(i), and 42 U.S.C. § 1983. The District Court dismissed, and we affirm.

NPI is participating in the creation of a national wire- less network to provide "enhanced specialized mobile radio service," which integrates several different types of wireless service. See Appellant's Br. at 4-5. NPI de- termined that, in order to cover an area that includes segments of three major highways, it needed to build a 150-foot "monopole" tower and related facilities ("a telecommunications facility") on or near certain property that it leased from Daniel Voitek in Kingston Township. In July 1999, NPI submitted to the Kingston Township Zoning Hearing Board (ZHB) a "validity challenge" to the Kingston zoning ordinance. NPI alleged, among other things, that the ordinance violated the TCA. NPI claimed that, although the TCA provides that state and local laws

"shall not prohibit or have the effect of prohibiting the provision of personal wireless services," 47 U.S.C. §

332(c)(7)(B)(i) n1, the *690 Kingston ordinance on its face did not allow wireless telecommunications **3 facilities anywhere in the Township. In the alternative, NPI sought the issuance of use and dimensional vari- ances and "such other interpretations, waivers and/or vari- ances as may be required" to build the proposed facility. Appellant's App. at 41.

n1 The statute, in pertinent part, provides as follows:

HN1 The regulation of the place- ment, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibit- ing the provision of personal wireless

services.

47 U.S.C. § 332(c)(7)(B)(i) (2000).

The ZHB conducted a hearing and issued a written decision on October 7, 1999. The ZHB agreed with NPI that the Township's ordinance did not permit wireless telecommunication facilities in any zoning district, and the ZHB recommended that the Township amend the or- dinance. However, the ZHB denied NPI's application for a use variance. It concluded that the proposed site was

"not **4 a proper location for a monopole tower," "giv- ing due consideration to topography, adjoining uses and the public health and welfare." Appellee's App. at 39. The ZHB also observed that NPI had not proven that the property could not be developed in conformity with the provisions of the zoning ordinance or that denial of the use variance would result in an unnecessary hardship.

HN2 The TCA allows an aggrieved party to file an action in a court of competent jurisdiction within 30 days after a "final action or failure to act by a State or local government or any instrumentality thereof." 47 U.S.C. §

332(c)(7)(B)(v). NPI, however, did not file its TCA ac- tion in federal district court until 57 days after the ZHB denied its application. Instead, NPI first attempted to ne- gotiate with the Township's Board of Supervisors and its Solicitor. Precisely what occurred during these discus- sions is disputed.

NPI alleges that, at a meeting on November 3, 1999, the Township conceded that its ordinance was invalid, promised to issue the permits necessary for the tower, and agreed to extend the deadline for filing an action to contest the ZHB decision. NPI states that, in reliance on

**5 this agreement with the Township, it withheld fil- ing the complaint that it had planned to file on November

5 (within 30 days of the ZHB's October 7 decision). The Township, by contrast, denies that the parties ever reached a final settlement. According to the Township, the parties merely came to a general framework for a "tentative reso- lution," and no final agreement to issue a building permit was ever reached. Appellee's Br. at 7. The Township ac- knowledges, however, that it agreed to an extension of the time during which NPI could file an action in federal court contesting the decision of the ZHB. The Township's posi- tion is consistent with what is apparently the only docu- ment generated by the November 3 meeting: a letter dated November 4, 1999 from NPI's counsel to the Township's Solicitor. The letter described their agreement as a "gen- eral framework" and a "tentative resolution." Appellant's App. at 64. It confirms arrangements for NPI to pick up a permit application, but it does not indicate that the Township had promised to issue a building permit. NPI never filed a permit application.

286 F.3d 687, *690; 2002 U.S. App. LEXIS 6688, **5

Page 4

On December 3, 1999, NPI filed this action in the United States District Court for the Middle **6 District of Pennsylvania, naming both the ZHB and the Township as defendants and asserting both federal and state-law claims. After property owners intervened in the action, NPI filed an amended two-count complaint that named the Township as the sole defendant. Count I of the amended complaint asserted a claim directly under the TCA. Count I averred that the Township was violating the TCA be- cause its ordinance had the effect of prohibiting the pro- vision of personal wireless service. As relief, Count I sought a writ of mandamus and an injunction requiring the Township to permit construction of a telecommuni- cations facility on the Voitek site, as well as damages and *691 other relief. Count II asserted a similar TCA claim under 42 U.S.C. § 1983 and requested damages and attorney's fees.

While this action was pending before the District Court, the Township amended its ordinance in April 2000. On its face, the new ordinance allowed wireless telecom- munications facilities to be built in the Township. In July

2000, the District Court dismissed NPI's action. The Court held that the claim asserted in Count I was barred because NPI had not commenced its action within 30 days **7 after the ZHB denied its application. The Court held that the 30-day rule was "jurisdictional" and could not be ex- tended. In addition, the Court opined that the April 2000 amendment of the ordinance had rendered Count I moot, and the Court stated that it would have dismissed this count as moot "even if the thirty-day limitations period had been satisfied." The Court dismissed Count II for fail- ure to state a claim on which relief may be granted. The Court held that a federal TCA claim may not be asserted under § 1983. This appeal followed. n2

n2 In October 2000, NPI applied for a permit under the new Kingston ordinance, as amended in April 2000. But in February 2001, the ZHB denied this application. NPI challenged this denial by fil- ing a complaint in the Court of Common Pleas of Luzerne County, Pennsylvania (Docket No. 1856- C (2001)).

On appeal, NPI argues that the claim advanced in Count I of its amended complaint was timely and that a TCA claim may be asserted under § 1983. We will address each of these arguments **8 in turn.

II.

Although the TCA recognizes that the states retain primary authority for land use regulation, the Act places certain specified restrictions on the regulation of personal wireless service. See 47 U.S.C. § 332(c)(7). The key pro-

vision says that HN3 state and local regulations may not either "unreasonably discriminate among providers of functionally equivalent services" or "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). State and local gov- ernments and instrumentalities are also enjoined to "act on any request for authorization to place, construct or mod- ify personal wireless service facilities within a reasonable period of time after the request is duly filed . . . taking into account the nature and scope of such request." 47 U.S.C.

§ 332(c)(7)(B)(ii). In addition, "any person adversely af- fected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with 47 U.S.C. § 332(c)(7)(B) may, within

30 days after such action or failure to act, commence an

**9 action in any court of competent jurisdiction." 47

U.S.C. § 332(c)(7)(B)(ii) (emphasis added).

In this case, as noted, the District Court dismissed Count I of NPI's amended complaint on the ground that NPI did not commence its action within 30 days after the decision of the ZHB. NPI maintains, however, that the District Court's holding was based on an erroneous under- standing of the claim asserted in Count I. That claim, NPI states, was not based on the decision of the ZHB (which had been dropped as a defendant) but on the Township's continued failure to amend its ordinance, which was in- consistent with the TCA. n3 NPI therefore argues that the

30-day limitations period in 47 U.S.C. § 332(c)(7)(B)(ii) did not begin to run until the Township amended its ordi- nance on *692 April 12, 2000. See Appellant's Br. at

16. It is apparently NPI's position that during the entire pe- riod up to April 12, 2000, the Township was continuously engaged in a "failure to act . . . that was inconsistent with

47 U.S.C. § 332(c)(7)(B) ." 47 U.S.C. § 332(c)(7)(B)(v). n3 In view of this argument, we need not and do not decide whether a claim contesting the decision of the ZHB would have been time-barred despite the Township's agreement to extend the time for

NPI to file an action under the TCA.

**10

Read generously, Count I of the amended complaint may assert two separate TCA claims. The first -- and plainly the chief -- claim is that the Township violated the TCA by failing to approve the construction of NPI's proposed facility. The second is that the prior Kingston ordinance was inconsistent on its face with the TCA and that NPI should receive relief from having to comply with that invalid ordinance. We hold that the first claim does not fall within 47 U.S.C. § 332(c)(7)(B)(v) because NPI never filed with the Township a request for approval of its proposed facility. We hold that the second claim is moot.

286 F.3d 687, *692; 2002 U.S. App. LEXIS 6688, **10

Page 5

We turn to NPI's claim that the Township violated the TCA by failing to approve its proposed facility. The language of 47 U.S.C. § 332(c)(7)(B)(v) permitting an aggrieved party to commence an action to challenge a

"failure to act" must be read in conjunction with the pre- viously noted provision requiring state and local govern- ments and instrumentalities to act within a reasonable time on "any request for authorization to place, con- struct, or modify personal wireless service facilities." 47

U.S.C. § 332(c)(7)(B)(iii). **11 Thus, HN4 if a state or local government or instrumentality fails to act on a

"request for authorization to place, construct, or mod- ify a personal wireless service facility," 47 U.S.C. §

332(c)(7)(B)(iii), that "failure to act" is actionable under

47 U.S.C. § 332(c)(7)(B)(v). Here, if NPI had filed such a request with the Township and the Township had failed to act on the request, the Township's failure to act would be deemed a denial and could be challenged in court.

It is undisputed, however, that NPI never filed with the Township a building permit application or any other

"request for authorization to place, construct, or mod- ify personal wireless service facilities." n4 Yet the main thrust of Count I of NPI's amended complaint is that the Township violated the TCA by failing to approve con- struction of its proposed telecommunications facility on the Voitek site. Similarly, the primary relief sought in Count I is the issuance of a writ or injunction requiring the Township to grant such approval. n5 To the extent that Count I challenges the Township's failure to approve NPI's facility, we hold that it does not fall within **12

47 U.S.C. § 332(c)(7)(B)(v). HN5 In the absence of a request to approve the construction of a facility, the fail- ure to approve the facility is not a "failure to act" within the meaning of this provision.

n4 Moreover, even if NPI had applied to the Township for a building permit, the Township ap- parently lacked the power to act on such an appli- cation under state law. See Pa. Stat. Ann. tit. 53

§ 10909.1(a)(3) (West 1997) (conferring upon the zoning hearing board "exclusive jurisdiction to hear and render final adjudications" over appeals from the decision of the zoning officer, including "the granting or denial any permit, or failure to act on the application therefor . . . .").

n5 Count I requested that the District Court

"issue a Writ of Mandamus and enter preliminary and permanent injunctions directing Defendant Kingston Township, to grant approval of NPI's telecommunications facilty to permit the use of the Property for a telecommunications facility in-

cluding a 150' monopole in accordance with NPI's

Application." Appellant's App. at 26a.

**13

For a similar reason, we also see no merit in NPI's alternative argument that the 30-day period did not begin to run *693 until November 3, 1999, "the date that the Township agreed to issue a building permit to NPI to rem- edy the deficiency with its Ordinance." Appellant's Br. at

16. Assuming for the sake of argument that the Township orally agreed during the settlement discussions to issue a building permit, the fact remains that NPI never applied to the Township for a permit. Accordingly, the Township did not engage in the type of "failure to act" that is actionable under 47 U.S.C. § 332(c)(7)(B)(v).

We now consider the second claim that we perceive in Count I, i.e., that the old Kingston ordinance was inconsis- tent on its face with the TCA and should not be enforced against NPI. We affirm the dismissal of this claim on the ground that it is moot.

HN6 Under Article III, section 2 of the U.S. Constitution, federal judicial power extends only to cases and controversies. If a claim no longer presents a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it. See Allen v. Wright, 468 U.S. 737,

750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). **14 This requirement must be met "through all stages of fed- eral judicial proceedings, trial and appellate." Lewis v. Continental Bank Corp., 494 U.S. 472 477, 108 L. Ed.

2d 400, 110 S. Ct. 1249 (1990). If a claim is based on a statute or ordinance that is amended after the litiga- tion has begun, the amendment may or may not moot the claim, depending on the impact of the amendment. See Nextel West Corp. v. Unity Township, 282 F.3d 257, (3d Cir. 2002).

As we recently noted, "if an amendment removes those features in the statute being challenged by the claim, any claim for injunctive relief 'becomes moot as to those features.'" Unity Township, 282 F.3d at 262 (quoting Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001)). On the other hand, an amendment does not moot a claim for injunctive relief if the updated statute differs only insignificantly from the original. See Unity Township, 282 F.3d at 262. Similarly, a request for a declaratory judgment that a statutory provision is invalid is moot if the provision has been substantially amended or repealed. See id. at 263 n.5; see also Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414-15, 30 L. Ed.

2d 567, 92 S. Ct. 574 (1972). **15

Here, if we read Count I as seeking an injunction

286 F.3d 687, *693; 2002 U.S. App. LEXIS 6688, **15

Page 6

against enforcement of the old ordinance and a declara- tory judgment that the old ordinance violated the TCA because it entirely prohibited the construction of telecom- munications facilities in the Township, the 2000 amend- ment rendered those requests for relief moot. In Unity Township, we held that a claim for injunctive relief was not mooted by an amendment to an ordinance because the plaintiff had adduced evidence that the prohibitive effect of the ordinance had not been substantially altered. Here, by contrast, NPI did not attempt to make such a showing. It did not compare the effect of the original ordinance and the amended ordinance. Instead, NPI appears to rely on a dubious bit of inductive reasoning: until NPI receives a permit, which it still does not have after the amendment, the ordinance necessarily violates the TCA on its face. That is simply not how the statute operates.

III.

We now turn to the question whether the District Court correctly dismissed Count II because a TCA claim may not be asserted under 42 U.S.C. § 1983. HN7 Section

1983 provides a private right of action against any person who, acting **16 under color of state or territorial law, abridges *694 "rights, privileges, or immunities se- cured by the Constitution and laws" of the United States. See also Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d

555, 100 S. Ct. 2502 (1980). In order to seek redress under

§ 1983, a plaintiff "must assert the violation of a federal right," and not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106,

107 L. Ed. 2d 420, 110 S. Ct. 444 (1989). Thus, a plaintiff alleging a violation of a federal statute may not proceed under § 1983 unless (1) the statute creates "enforceable rights, privileges, or immunities within the meaning of

§ 1983" and (2) Congress has not "foreclosed such en- forcement of the statute in the enactment itself." Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987). See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S.

1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981) (holding that §

1983 actions were impliedly precluded under the Federal

Water Pollution Control Act).

A plaintiff asserting a statutory claim under § 1983

**17 has the initial burden of demonstrating that the statute creates a substantive right. See Blessing v. Freestone, 520 U.S. 329, 137 L. Ed. 2d 569, 117 S. Ct.

1353 (1997). If the plaintiff carries this burden, a rebut- table presumption arises that a § 1983 claim is available, and the burden shifts to the defendant to show that a §

1983 action was explicitly or implicitly precluded by the statute. See Wright, 479 U.S. at 423. One way that a statute may implicitly preclude a § 1983 action is by creating a comprehensive remedial scheme. See Sea Clammers, 453

U.S. at 20; Smith v. Robinson, 468 U.S. 992, 1011, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984) (holding that § 1983 ac- tions were impliedly precluded under the Education of the Handicapped Act); see also Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 703 (3d Cir. 1996) ("The Supreme Court has held that in enacting the U.S. Housing Act, Congress did not specifically foreclose a § 1983 remedy by enactment of a comprehensive scheme of remedial mechanisms").

A key distinction between schemes that are suffi- ciently comprehensive to preclude a § 1983 claim and those that **18 are not is the availability of private judi- cial remedies under the statute giving rise to the claim. "In both Sea Clammers and Smith v. Robinson, the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the §

1983 remedy." Wright, 479 U.S. at 427. In Wright, by con- trast, the Court found "nothing of that kind" in the hous- ing statute at issue, and the Court ultimately concluded that § 1983 remedies were not precluded. Id. Similarly in Blessing, the Court reasoned that § 1983 remedies might be available under the statute at issue because "unlike the federal programs at issue in Sea Clammers and Smith, this statute contains no private remedy--either judicial or administrative--through which aggrieved persons can seek redress." Blessing, 520 U.S. at 348 (analyzing Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.). Applying this analysis to the TCA, we hold that the TCA implicitly precludes an action under § 1983 by cre- ating a comprehensive remedial scheme that furnishes private judicial remedies. While the remedial scheme pro- vided by the TCA is not **19 complicated, we believe that it is comprehensive in the relevant sense: it provides private judicial remedies that incorporate both notable benefits and corresponding limitations. Allowing plain- tiffs to assert TCA claims under § 1983 would upset this

balance.

Under the TCA, an aggrieved party may file an action in any court of competent *695 jurisdiction. 47 U.S.C.

§ 332(c)(7)(B)(v). The TCA requires that such an action be filed within a very short period -- 30 days -- after an adverse decision or failure to act, and the Act correspond- ingly requires the court to "hear and decide such action on an expedited basis." Id. This streamlined review may work to the benefit of plaintiffs and defendants in differ- ent ways. For plaintiffs, it may provide speedy redress for violations of the Act. For defendants, assuming for the sake of argument that damages may be recovered un- der the TCA itself, n6 quick review may diminish the amount that may be recovered. We also find it important that HN8 the TCA makes no provision for attorney's fees, and HN9 it is of course "the general rule in this

286 F.3d 687, *695; 2002 U.S. App. LEXIS 6688, **19

Page 7

country that unless Congress provides otherwise, parties are to bear their own attorney's fees. **20 " Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 127 L. Ed. 2d 455, 114

S. Ct. 1023 (1994); see also Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 247-62, 44 L. Ed. 2d

141, 95 S. Ct. 1612 (1975).

n6 We do not decide this question but note that

HN10 when a statute creates a private right of ac- tion but does not specify what remedies are avail- able, the availability of all appropriate remedies is generally presumed. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 70-71, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992). As a matter of practice, however, the typical relief in cases like the one before us has been injunctive. See Omnipoint Communications v. Town of Lincoln, 107 F. Supp.

2d 108, 120-21 (D. Mass. 2000) (observing that

"the majority of district courts . . . have held that the appropriate remedy for a violation of the TCA is a mandatory injunction"). Four district courts have expressly held that damages are not avail- able under the TCA itself. See AT&T Wireless v. City of Atlanta, 50 F. Supp. 2d 1352, 1362-

64 (N.D. Ga. 1999) (reversed on other grounds); Primeco Personal Communications Ltd. P'ship v. Lake County, 1998 U.S. Dist. LEXIS 22599, 1998

WL 565036 (M.D. Fla. July 20, 1998); Virginia Metronet v. Board of Supervisors of James City County, 984 F. Supp. 966 (E.D. Va. 1998); Illinois RSA No. 3 v. County of Peoria, 963 F. Supp. 732

(C.D. Ill. 1997).

**21

If a plaintiff alleging a violation of the TCA could assert its claim under § 1983, the remedial scheme of the TCA would be upset. A plaintiff would be freed of the short 30-day limitations period and would instead pre- sumably have four years to commence the action. See 28

U.S.C. § 1658. The court would also presumably be freed of the obligation to hear the claim on an expedited basis. Perhaps most important, attorney's fees would be avail- able. TCA plaintiffs are often large corporations or affil- iated entities, whereas TCA defendants are often small, rural municipalities. Such municipalities may have little familiarity with the TCA until they are confronted with a TCA claim, and in land-use matters they may generally rely on attorneys who may likewise know little about the TCA. See Omnipoint Communications v. Penn Forest, 42

F. Supp. 2d 493, 506 (M.D. Pa. 1999). Allowing TCA plaintiffs to recover attorney's fees from such municipal- ities might significantly alter the Act's remedial scheme and thus increase the federal burden on local land-use

regulation beyond what Congress intended. We are there- fore persuaded that the TCA contains a remedial scheme

**22 that is sufficiently comprehensive to show that

Congress impliedly foreclosed resort to § 1983.

We are aware that a panel of the Eleventh Circuit, in a decision that was later vacated, reached a contrary conclu- sion. See AT&T Wireless PCS, Inc. v. City of Atlanta, 210

F.3d 1322 (11th Cir. 2000), vacated on other grounds, 223

F.3d 1324 (11th Cir. 2000), but we respectfully disagree with the reasoning of that decision. n7 *696 The va- cated decision relied on the TCA's savings clause, which provides that the Act is not to be construed "to modify, impair, or supercede Federal, state, or local law unless so provided in such Act or amendments." Pub. L. No. 104-

104 § 601(c)(1), 110 Stat. 143 (1996) (reprinted in 47

U.S.C. § 152, historical and statutory notes). However, our holding in this case -- that the relevant provision of the TCA does not create a right that is enforceable under §

1983 -- does not mean that the TCA in any way modified, impaired, or superceded § 1983. We do not hold that en- actment of the TCA had any effect on § 1983; we simply hold that HN11 the TCA itself did not create a right that can be asserted under § 1983 in lieu of **23 the TCA's own remedial scheme. See Sea Clammers, 453 U.S. at 20 n.31 (holding, despite savings clause, that comprehensive remedial schemes of water pollution statutes impliedly foreclosed resort to § 1983).

n7 No other federal court of appeals has ad- dressed this question. The District Court decisions are split, but most contain little or no analysis. For decisions holding that a TCA claim of the type involved here may be asserted under § 1983, see, for example, Cellco P'ship v. Hess, 1999 WL

178364 (E.D. Pa. Mar. 30, 1999); MCI Telecomm. Corp. v. Southern New England Tel. Co., 27 F. Supp. 2d 326 (D. Conn 1998); APT Minneapolis, Inc. v. City of Maplewood, 1998 U.S. Dist. LEXIS

14613, 1998 WL 634224 (D. Minn. Aug. 12, 1998); Smart SMR of New York v. Zoning Comm'n of the Town of Stratford, 995 F. Supp. 52 (D. Conn.

1998); Cellco Partnership v. Town Plan & Zoning

Comm'n of Farmington, 3 F. Supp. 2d 178, 186

(D. Conn. 1998). Omnipoint Communications v. Zoning Hearing Bd. of Chadds Ford Township,

1998 WL 764762 (E.D. Pa. 1998); Sprint Spectrum v. Town of Easton, 982 F. Supp. 47 (D. Mass 1997). For contrary decisions, see, for exam- ple, Omnipoint Communications v. Charlestown Township, 2000 U.S. Dist. LEXIS 866, 2000

WL 128703 (E.D. Pa. 2000); Omnipoint Communications v. Easttown Township, 72 F. Supp. 2d 512 (E.D. Pa. 1999); Omnipoint

286 F.3d 687, *696; 2002 U.S. App. LEXIS 6688, **23

Page 8

Communications v. Foster Township, 46 F. Supp. 2d

396 (M.D. Pa. 1999); Omnipoint Communications v. Penn Forest, 42 F. Supp. 2d 493 (M.D. Pa.

1999); National Telecomm. Advisors, Inc. v. City of Chicopee, 16 F. Supp. 2d 117 (D. Mass. 1998).

**24 IV

For the reasons explained above, the Order of the District Court, issued in favor of Kingston Township and against NPI, is AFFIRMED.


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