Metropolitan News-Enterprise


Wednesday, March 23, 2005


Page 3


City’s Denial of Antenna Permit Did Not Give Rise To Rights Claim—Court


By a MetNews Staff Writer


A ham radio operator who claims he was unreasonably denied a conditional use permit by the City of Rancho Palos Verdes is not entitled to damages and attorney fees under 42 U.S.C. Sec. 1983, the U.S. Supreme Court ruled yesterday.

Reversing a contrary conclusion of the Ninth U.S. Circuit Court of Appeals, the nation’s highest court said U.S. District Judge Stephen V. Wilson of the Central District of California was correct 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.

Justice Antonin Scalia agreed with Wilson that the remedies provided by the TCA were exclusive.

“The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under [Sec.] 1983,” Scalia wrote.

The decision was unanimous, although Justice John Paul Stevens concurred separately, saying that congressional intent to allow a Sec. 1983 remedy for violation of federal statutory rights by state or local officials should normally be presumed, but in this case it was clear that Congress had no such intent.

The decision resolves a conflict with the Third Circuit, which held that the Sec. 1983 remedy was unavailable. Ninth Circuit Senior Judge Thomas G. Nelson had criticized the Third Circuit ruling as “flawed in several respects” and said it 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. 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.

Scalia explained that the presumption in favor of Sec. 1983 remedies for violation of federally protected rates is merely rebuttable, and that a finding of intent not to allow such a remedy may be either based on express statutory language or implied from the establishment of a comprehensive regulatory scheme.

The TCA, the justice noted, creates a regulatory scheme that is so pervasive that it must be construed to “create rights that may be enforced only through the statute’s express remedy.”

The case is City of Rancho Palos Verdes v. Abrams, 03-1601.


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