Metropolitan News-Enterprise


Friday, January 16, 2004


Page 1


City’s Violation of Telecommunications Act Gives Rise To Claim Under Sec. 1983, Ninth Circuit Rules


By DAVID WATSON, Staff Writer


A ham radio operator who was unreasonably denied a conditional use permit by the City of Rancho Palos Verdes is entitled to damages and attorney fees under 42 U.S.C. Sec. 1983, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court said U.S. District Judge Stephen V. Wilson of the Central District of California erred when he ruled in 2002 that Mark J. Abrams was entitled under the Telecommunications Act of 1996 only to an order requiring the city to grant the permit. Wilson reasoned that the remedies provided by the TCA were exclusive.

Senior Judge Thomas G. Nelson, writing for the appellate panel, conceded that the Third Circuit reached a similar conclusion in Nextel Partners Inc. v. Kingston Township, 286 F.3d 687 (2002). But he said that decision was “flawed in several respects” and conflicted with Ninth Circuit precedent.

Abrams received a city permit to construct an antenna for amateur use on his property in 1989, but also used it to provide commercial two-way radio services. His attorney, Wilkie Cheong of Cheong, Denove, Rowell, & Bennett in Century City, explained that the antenna was used as a “repeater station,” allowing small business and service industry customers to keep in touch over short distances.

When the city discovered the nonconforming use 10 years later, it obtained an injunction barring Abrams from using the antenna for commercial purposes until he obtained a conditional use permit. He applied, but the city denied the permit.

Wilson ruled that the city had no valid reason for denying the permit, but rejected Abrams’ request for damages, attorney fees and costs under Sec. 1983.

Nelson noted that once a federal right is established, a rebuttable presumption arises that Sec. 1983 remedies are available.

“The City can rebut the presumption in favor of ß 1983 remedies if it can prove that Congress either expressly or impliedly foreclosed ß 1983 remedies,” Nelson explained. “The TCA’s language provides no support for the theory that Congress expressly foreclosed ß 1983. Thus, the question further narrows to whether Congress impliedly foreclosed ß 1983 remedies.”

Nelson noted that the TCA creates a right of action, but grants “no remedies beyond procedural rights.”

He declared:

“The procedural provisions are insufficient for us to conclude that the TCA contains a comprehensive remedial scheme that closes the door on ß 1983 liability.”

The Third Circuit in Nextel erred, Nelson said, in concluding that the TCA provided a comprehensive remedial scheme inconsistent with Sec. 1983.

The judge reasoned:

“Significantly, a court can fully comply with all of the TCA’s provisions before it determines liability. Thus, the TCA contains procedural, rather than remedial, provisions.”

Nextel is also inconsistent with Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 739 F.2d 1467 (1984), in which the Ninth Circuit found a statute with more remedial provisions than the TCA did not contain a comprehensive scheme, Nelson said.  Keaukaha-Panaewa involved rights under the Hawaiian Admission Act.

  “Thus,” the jurist continued, “we depart from the Third Circuit and hold that Congress did not impliedly foreclose ß 1983’s remedial provisions.”

  United States Court of International Trade Judge Jane A. Restani, sitting by designation, and Judge Alex Kozinski concurred.

  Cheong said he was unable to estimate the amount of Sec. 1983 fees and damages that might be involved in the case. He noted that the city had argued that granting Abrams a conditional use permit would lead to a proliferation of similar uses.

Gregory M. Kunert of Richards, Watson, and Gershon in Los Angeles, who handled the appeal for Rancho Palos Verdes, said it would be up to the city whether to seek either rehearing or en banc or Supreme Court review of the court’s ruling. But in view of the “apparent split among the circuits,” he added, “I would certainly favor that course myself.”


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