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
Moss & Barnett