Court Says Aggrieved Antenna Owner Eligible For Civil Right Act Damages

A wireless telecommunications service provider may seek damages under the federal Civil Rights Act because a city improperly denied the provider a conditional use permit, according to the Ninth U.S. Circuit Court of Appeals.

The decision came in a long-running dispute between a homeowner and the City of Rancho Palos Verdes. In about 1990, Mark Abrams erected a 52-foot radio antenna on his property, near the peak of the Palos Verdes Peninsula. Over the years, he apparently installed a second antenna and placed two portable models in his yard. Abrams is a ham radio operator and also runs a for-profit wireless transmission service.

In 1999, the city and state sued Abrams to bar him from using the antennas for commercial purposes. Three years later, California’s Second District Court of Appeal ruled that the city could not deny Abrams’s application for a conditional use permit based solely on the commercial nature of the antennas (, 101 Cal.App.4th 367; see , October 2002).

While the state court litigation was proceeding, Abrams sued the city in federal court under the Telecommunications Act of 1996 (TCA). He argued that the city violated his rights under the act and, because of the violation, he was eligible for damages under the Civil Rights Act (42 U.S.C. §1983). District Court Judge Stephen Wilson ruled that the city had violated Abrams’s rights under the TCA, but Wilson ruled that Abrams could not received § 1983 damages because the Telecommunications Act contained its own remedies. Abrams appealed, and a unanimous three-judge panel of the Ninth Circuit reversed the lower court.

Damages for violations of federal rights are available under § 1983 unless Congress forecloses the opportunity by establishing other remedies, according to the Ninth Circuit. With the Telecommunications Act, Congress established a short statute of limitations (30 days), required expedited judicial review and permitted a plaintiff to file a lawsuit "in any court of competent jurisdiction."

These measures are not remedies but are, instead, procedural rights, the Ninth Circuit held. "The procedural provisions are insufficient for us to conclude that the TCA contains a comprehensive remedial scheme that closes the door on § 1983 liability," Judge Thomas Nelson wrote for the court.

The court noted that the Third Circuit reached the opposite conclusion in , 286 F.3d 687 (3d Cir. 2002). What the Ninth Circuit considered a "procedural" scheme, the Third Circuit called a comprehensive remedial scheme that foreclosed § 1983 damages. But the Ninth Circuit called the Third Circuit’s reasoning "flawed" and re-emphasized the procedural nature of the Telecommunications Act’s remedies.

The Ninth Circuit sent the case back to district court to determine the amount of damages to which Abrams is entitled.

The Case: , No. 0255681, 04 C.D.O.S. 353, 2004 DJDAR 496. Filed January 15, 2004.

The Lawyers: For Abrams: Wilkie Cheong, Cheong, Denove, Rowell & Bennett, (310) 277-4857. For the city: Carol Lynch, Richards, Watson & Gershon, (213) 626-8484.