8th Circuit rules on "in writing" requirement of Telecommunications Act of 1996 (TCA)

NE Colorado Cellular, Inc. v.  City of North Platte, Nebraska (8th Cir. August 22, 2014). 

As outlined by the 8th Circuit, the TCA provides in relevant part:

"A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request."

"Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. " 47 U.S.C. § 332(c)(7)(B)(ii)–(iii).
 
 The 8th Circuit stated that courts have adopted four different interpretations of the TCA's "in writing" requirement, and the Supreme Court has granted a writ of certiorari to resolve the split. T-Mobile S., LLC v. City of Roswell, Ga., 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S. Ct. 2136 (2014).    

The 8th Circuit reviewed the four different interpretations and concluded:

"We are persuaded that the Fourth and Eleventh Circuits have articulated the better rule. Nowhere does the statutory text require that the denial and the "written record" be separate writings. Section 332 requires only that the denial and the record both be written. Section 332 does not require that the written denial state the reasons for the denial. Congress may require an agency or board to state its findings. See, e.g., 5 U.S.C. § 557(c). Congress did not do so here."

Anthony A. Dorland
Moss & Barnett