                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                           File Name: 05a0091p.06

                        UNITED STATES COURTS OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                             X
                                                              -
 STATE OF TENNESSEE ex rel. WIRELESS INCOME

                                       Plaintiff-Appellant, -
 PROPERTIES, LLC,
                                                              -
                                                              -
                                                                  No. 03-6608

                                                              ,
            v.                                                 >
                                                              -
 CITY OF CHATTANOOGA and WILLIAM C. MCDONALD, in -
                                                              -
                                    Defendants-Appellees. -
 his capacity as Administrator of Public Works,

                                                              -
                                                             N
                              Appeal from the United States District Court
                         for the Eastern District of Tennessee at Chattanooga.
                         No. 02-00372—R. Allan Edgar, Chief District Judge.
                                         Argued: August 11, 2004
                                  Decided and Filed: February 24, 2005
                          Before: SILER, MOORE, and COLE, Circuit Judges.
                                           _________________
                                                COUNSEL
ARGUED: James T. Williams, MILLER & MARTIN, Chattanooga, Tennessee, for Appellant. Michael
A. McMahan, OFFICE OF THE CITY ATTORNEY, Chattanooga, Tennessee, for Appellees. ON BRIEF:
James T. Williams, MILLER & MARTIN, Chattanooga, Tennessee, Camden Ballard Scearce, Jr., HUSCH
& EPPENBERGER, LLC, Chattanooga, Tennessee, for Appellant. Michael A. McMahan, OFFICE OF
THE CITY ATTORNEY, Chattanooga, Tennessee, for Appellees.
                                           _________________
                                               OPINION
                                           _________________
        KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Wireless Income Properties, LLC
(“Wireless”) appeals the decision of the district court, which granted in part and denied in part both its and
Defendant-Appellee City of Chattanooga’s (“City”) respective motions for summary judgment. Wireless,
a company engaged in the construction and management of telecommunications towers, filed applications
with the City for permits to construct monopole communication towers. The City then called for a
moratorium on the issuing of such permits to consider amendments to the pertinent zoning ordinances.
After the moratorium was lifted, Wireless’s applications no longer complied with the newly amended zoning
ordinances. Wireless brought suit in federal court seeking mandamus relief requiring the City to issue the
permits, and also asserting that the City had committed violations of the Telecommunications Act of 1996


                                                      1
No. 03-6608                  State of Tennessee et al. v. City of Chattanooga et al.                                     Page 2


(“TCA”) and 42 U.S.C. § 1983. Both sides filed motions for summary judgment, which the district court
granted in part and denied in part. Among other things, the district court ordered the City to act on the
pending applications within sixty days of the judgment.
         Wireless makes three arguments on appeal: (1) the district court erred when it ordered the City to
act upon Wireless’s permit applications within sixty days of the judgment; (2) the district court erred when
it held that the City was not required to apply the zoning ordinances in effect at the time Wireless filed its
applications for building permits; and (3) the district court erred when it held that a violation of the TCA
does not give rise to a cause of action under 42 U.S.C. § 1983.
         For the reasons explained below, we REVERSE the district court’s sixty-day order; instead the
district court should issue appropriate injunctive relief compelling the City to grant Wireless the requested
permits. Because we conclude that a § 1983 remedy is available for violations of the TCA, we REVERSE
the district court’s grant of summary judgment to the City on this issue and REMAND the case to the
district court for further proceedings consistent with this opinion.
                                                    I. BACKGROUND
        Wireless constructs, owns, and manages telecommunications towers in the Southeastern United
States. Between December 14, 2001 and January 15, 2002, Wireless filed seven Land Disturbing Activity
Permit Applications (“applications”) with the Public Works Department of the City, seeking approval for
the construction of monopole communication towers. At the time each application was filed, Wireless or
the company’s principal, G. Larry Wells (“Wells”), either owned or leased the underlying property, or had
an agreement with the owner of the property to file the applications. In addition, the property underlying
each application conformed to the particular zoning ordinances then in effect.1
        On January 15, 2002, the Chattanooga City Council (“City Council”) passed a resolution which
declared a moratorium on the issuance      of building permits for communication towers in certain zones
effective until March 13, 2002.2 The purpose of the moratorium was “to allow [for] consideration of
amendments to the provisions of the Zoning Ordinance for communication towers in [the cited] zones by
the City Council,” due to concern that the then-effective ordinances failed sufficiently to “protect the public
welfare.” Joint Appendix (“J.A.”) at 112. A second resolution was passed on February 12, 2002, extending
the moratorium until April 5, 2002.
         On March 19, 2002, the City Council passed Ordinance No. 11253, which changed the standards
for the location of communication towers. The changes were not to take effect until April 3, 2002. One of
the changes was a new requirement mandating that all applications     be approved by the Board of Appeals
for Variances and Special Permits (“Variance Board”).3 On March 26, 2002, the City Council passed
another resolution setting April 3, 2002 as the termination date of the moratorium.
        As a result of the amendments to the zoning ordinances, all of Wireless’s applications were rendered
defective in various ways such that they did not qualify for issuance of the permits. Wireless asserts that


    1
      Each of the properties “was zoned appropriately for the construction of a communications tower of the type and height as
identified on each individual site plan attached to each of the Applications.” Appellant’s Br. at 6-7. Five of the properties were
zoned C-2 (convenience commercial), one was zoned M-3 (warehouse and wholesale), and one was zoned M-1 (manufacturing).
In addition, at the time of the filings, construction of monopole communication towers was designated a permitted use in these
zones pursuant to the City’s then-effective zoning ordinances.
    2
        Wireless was aware of the impending moratorium and filed the last of its two applications on January 15, 2002.
    3
     Wells was aware of this new requirement. In fact, he had attended and participated in some of the City Council Legal and
Legislative Committee meetings on the subject.
No. 03-6608                 State of Tennessee et al. v. City of Chattanooga et al.                                     Page 3


the City never served it with any type of written documentation signaling either the approval or denial of
its applications. The City concedes that its only communication with Wireless regarding the allegedly now-
inadequate applications was a telephone call on March 20, 2002, between Perry Mayo (“Mayo”), the city
employee primarily responsible for processing applications, and Wireless. During this phone call, Mayo
informed Wireless that the applications could not be approved absent a “special exceptions permit.”
Appellees’ Br. at 4; J.A. at 104-05 (Mayo Dep. at 37-38). Mayo believed that the applications were
therefore “on hold” at this point, and accordingly, took no further action. J.A. at 104-05 (Mayo Dep. at 37-
38). Wireless never took the steps necessary to cure the defects in its   applications by satisfying the new
requirements and taking the applications before the Variance Board.4
        On December 10, 2002, Wireless filed suit in federal court against the City and William C.
McDonald in his capacity as Administrator of Public Works, seeking mandamus relief “requiring the City
to issue the requested permits, and asserted [that] the City had engaged in certain violations of the TCA,
violations of 42 U.S.C. § 1983 and violations of Wireless’ substantive due process rights.” Appellant’s Br.
at 3. On February 6, 2003, Wireless filed a motion for partial summary judgment on the basis of the City’s
violations of the TCA, and requested a writ of mandamus that would force the City to issue the requested
permits. The City filed a cross-motion for summary judgment on June 30, 2003, asking the court to
conclude that it had committed no violations of the TCA, and asking that Wireless’s claims be dismissed.
        On October 20, 2003, the district court issued an opinion, granting in part and denying in part both
of the motions for summary judgment. The court found that the City’s failure to act upon Wireless’s filed
applications constituted a violation of the TCA and ordered the City either to grant or to deny the
applications within sixty days from the date of judgment. The court also denied Wireless’s motion to the
extent that it asked the court “to compel the City to apply zoning laws in effect before April 3, 2002.” J.A.
at 168 (D. Ct. Op. at 12). Finally, regarding Wireless’s § 1983 claim, the district court, after lengthy
analysis, concluded that a violation of the TCA did not give rise to a cause of action under § 1983.
Accordingly, the court granted summary judgment in favor of the City on this issue. Wireless filed a timely
notice of appeal on November 18, 2003 from the district court’s final judgment.
                                                      II. ANALYSIS
A. Standard of Review
        This court reviews a grant of summary judgment de novo. Walls v. Amerisure Mut. Ins. Co., 343
F.3d 881, 884 (6th Cir. 2003). “Although the denial of a motion for summary judgment is usually an
interlocutory order that is not immediately appealable, where ‘an appeal from a denial of summary judgment
is presented in tandem with a grant of summary judgment, this court has jurisdiction to review the propriety
of the district court’s denial of summary judgment.’” Id. (quoting Hamad v. Woodcrest Condo. Ass’n, 328
F.3d 224, 235 (6th Cir. 2003)). While the denial of a motion for summary judgment “on purely legal
grounds” is reviewed de novo, id., a denial based on the finding of a genuine issue of material fact is
reviewed for an abuse of discretion. McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004). A grant
of summary judgment is proper when, taking the facts in the light most favorable to the non-movant, there
exists no genuine issue of material fact and “the moving party is entitled to a judgment as a matter of law.”
Walls, 343 F.3d at 884. Finally, the decision of a district court to grant injunctive relief is reviewed for
abuse of discretion. United States v. City of Detroit, 329 F.3d 515, 520 (6th Cir. 2003) (en banc); New Par
v. City of Saginaw, 301 F.3d 390, 394 (6th Cir. 2002).




    4
     Wells asserted in his deposition that although he knew that his pending applications would be deficient after passage of the
amendments to the ordinance, he did not amend the applications, as he thought that they would be grandfathered, i.e., that they
would be approved under the old ordinance.
No. 03-6608             State of Tennessee et al. v. City of Chattanooga et al.                            Page 4


B. Sixty-Day Order
        On appeal Wireless contends that the district court erred when it ordered the City to either grant or
deny Wireless’s permit applications within sixty days. Specifically, Wireless contends that the proper
remedy for the City’s violations of the TCA would be to require the City to issue the requested permits. In
response, the City contends that Wireless’s claim is not ripe for review under the TCA. For the reasons set
out below, we reject the City’s ripeness claim and agree with Wireless that the district court erred in failing
to require the City to issue the requested permits.
        The TCA, codified at 47 U.S.C. § 332, provides in subsection (c)(7)(B) the following:
        (ii)    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.
        (iii)   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.
        ***
        (v)     Any person adversely affected by any final action or failure to act by a State or local
                government or any instrumentality thereof that is inconsistent with this subparagraph
                may, within 30 days after such action or failure to act, commence an action in any
                court of competent jurisdiction. The court shall hear and decide such action on an
                expedited basis. . . .
47 U.S.C. § 332(c)(7)(B).
        At the outset, the City argues that Wireless’s claim is not ripe for review. The City contends that
because Wireless has failed to comply with the requirements of the amended ordinance its applications are
still pending, and the City has yet to take final action on the applications as is required by 47 U.S.C.
§ 332(c)(7)(B)(v). Accordingly, the City argues that because “no final action ha[s] been taken, as
contemplated by the TCA, prior to a valid cause of action being pursued under that statute, . . . no legal
injury could have been sustained by [Wireless] due to the City’s alleged inaction.” Appellees’ Br. at 10.
       The City relies on Nextel Partners Inc. v. Kingston Township, 286 F.3d 687 (3d Cir. 2002), in
support of its argument. However, that case is not on point. There, Nextel brought suit against the
township, alleging that the latter had violated the TCA because the ordinance in place “prohibit[ed] the
provision of personal wireless service.” Id. at 690. The plaintiff wanted to construct a wireless
communications tower on private property within the township, and had negotiated with the township, but
had never filed an application for a building permit.
         On appeal, the Third Circuit construed Nextel’s complaint as asserting a claim that the township’s
failure to approve Nextel’s proposed facility violated the TCA. The court noted that the language of 47
U.S.C. § 332(c)(7)(B)(v), which “permit[s] an aggrieved party to commence an action to challenge a ‘failure
to act’ must be read in conjunction with” 47 U.S.C. § 332(c)(7)(B)(iii), which “requir[es] state and local
governments and instrumentalities to act within a reasonable time on ‘any request for authorization to place,
construct, or modify [a] personal wireless service facilit[y].’” Id. at 692 (citations omitted). Accordingly,
the court stated that in order for § 332(c)(7)(B)(v) to be triggered, there must have been a request made as
referenced in § 332(c)(7)(B)(iii). The court noted that because Nextel had never filed an application for a
building permit with the township, or made any other request for the placement or construction of a wireless
facility, the township’s failure to approve the facility did not constitute a “failure to act” within the language
No. 03-6608                 State of Tennessee et al. v. City of Chattanooga et al.                                      Page 5


of 47 U.S.C. § 332(c)(7)(B)(v). Thus, Nextel’s claims under the TCA were not actionable in court. “In the
absence of a request to approve the construction of a facility, the failure to approve the facility is not a
‘failure to act’ within the meaning of this provision.” Id. Here, by contrast, there is no dispute that Wireless
made the appropriate      request when it filed its applications with the City. Accordingly, Nextel is
distinguishable.5 Even if there was no action upon Wireless’s applications, as the City contends, there was
a “failure to act” under § 332(c)(7)(B)(v) satisfying ripeness concerns.
        The district court found that the City had violated the TCA by failing to act on Wireless’s filed
applications, as the TCA mandates that such requests be acted on “within a reasonable period of time after
the request is duly filed.” 47 U.S.C. § 332(c)(7)(B)(ii). Because the district court concluded that the City
neither denied Wireless’s applications nor took any action on the applications during the nine months that
passed after the lifting of the moratorium and before the lawsuit was filed, the court deemed this inaction
a violation of both the TCA’s timing and writing requirements. See 47 U.S.C. § 332(c)(7)(B)(ii-iii). Citing
New Par v. City of Saginaw for the proposition “that injunctive relief is an appropriate remedy for such
violations,” 301 F.3d at 399, the district court ordered the City to act upon Wireless’s applications within
sixty days of the judgment.
        Under the circumstances of this case, we conclude that the City’s actions during the nine months
following the expiration of the moratorium amounted not simply to a failure to act but rather constituted a
functional denial of Wireless’s applications. As Mayo, the City employee in charge of processing permit
applications, stated in his deposition, it was not the City’s practice to comply with the substantive and
procedural mandates of the TCA when it determined that an application ought to be denied. Instead when
the City received an application which Mayo believed did not comply with the City’s regulations, his
practice was to telephone the applicant and inform the applicant of the defects in the application. J.A. at
108 (Mayo Dep. at 52). Mayo would then hold the application until the applicant submitted the necessary
amendments to bring the application into compliance with City regulations. J.A. at 105 (Mayo Dep. at 38).
If the applicant did not amend his application within a several-year period, Mayo would discard the faulty
application. Id. A formal denial of the permit application, as required by the TCA, would never occur.
        This is exactly the procedure adhered to by the City when it reviewed Wireless’s permit applications.
Following the passage of the City’s new regulations and the expiration of the City’s moratorium, Mayo
telephoned Wireless and informed Wireless that its applications did not comply with the new ordinance.
J.A. at 104 (Mayo Dep. at 37). Mayo also informed Wireless of the changes that would need to be made
to the applications in order for permits to be granted and indicated that no further action would be taken on
the applications unless these changes were made. J.A. at 104-105 (Mayo Dep. at 37-38). Consistent with
Mayo’s statements to Wireless, no further action was taken by the City on Wireless’s applications in the
nine months following the expiration of the moratorium.
         These actions by the City constituted an informal denial of Wireless’s applications. Mayo’s
telephone call informed Wireless that its applications, absent amendment, would not be granted. Following
this telephone call, no written decision as to the status of Wireless’s applications was provided by the City.
While such an informal procedure might be sufficient in another context under state law, such a procedure
directly contravenes the substantive and procedural requirements of the TCA.
       The TCA does not preempt all authority of state or local governments over the regulation of wireless
towers. See 47 U.S.C. § 332(c)(7)(A). Instead, it merely imposes several substantive and procedural
requirements upon the state or local government’s consideration of permit applications. See generally 47

    5
      The City also relies on APT Tampa/Orlando, Inc. v. Orange County & Bd. of Comm’rs, No. 97-891-CIV-ORL-22, 1997
WL 33320573 (M.D. Fla. Dec. 10, 1997). However, again, in that case, the court determined that in order for there to have been
a final action or failure to act such that 47 U.S.C. § 332(c)(7)(B)(v) would be implicated, the plaintiffs in the case had to have
applied for a tower permit. Absent an application for a permit, their “claims [were] not yet ripe.” Id. at *4. Accordingly, that
case has no application to the present controversy.
No. 03-6608             State of Tennessee et al. v. City of Chattanooga et al.                       Page 6


U.S.C. § 332(c)(7)(B). Among those requirements, the TCA mandates that the state or local governments:
(1) act on any permit application “within a reasonable period of time after” the application is filed; and
(2) provide a decision on the application “in writing and supported by substantial evidence contained in a
written record.” 47 U.S.C. § 332(c)(7)(B)(ii)-(iii).
        We agree with the district court’s assessment that the City’s informal decision-making process
violated the mandates of the TCA. Because we conclude, however, that an informal denial was issued by
the City, we disagree with the district court as to the provisions of the TCA that were violated by the City’s
actions. First, we conclude that City’s decision violated the TCA requirement that a decision be “in
writing.” 47 U.S.C. § 332(c)(7)(B)(ii). We have held that for a decision to meet the “in writing”
requirement, the written denial must: “(1) be separate from the written record; (2) describe the reasons for
the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court
to evaluate the evidence in the record that supports those reasons.” New Par, 301 F.3d at 395-396. The
City’s rejection of Wireless’s applications did not meet the “in writing” requirement for the simple reason
that no written documentation of the City’s decision was ever provided to Wireless. Instead, Wireless
merely received a telephone call indicating that its applications were not in compliance with the City’s
regulations.
         Additionally we conclude, unlike the district court, that the City’s decision violated the TCA’s
requirement that a decision to deny a permit application must be “supported by substantial evidence
contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). “Substantial evidence is ‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” New Par, 301 F.3d at 396 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In this
case, the City provided no written record supporting its decision to deny Wireless’s application. Given that
the City failed to provide written documentation in support of its decision, we must conclude that the City’s
decision was not supported by substantial evidence, in violation of the TCA.
        Having determined that the City’s informal denial of Wireless’s applications violated the TCA’s
requirements that such decisions be “in writing” and “supported by substantial evidence,” we must now
determine what is the appropriate relief for such a violation. See 47 U.S.C. § 332(c)(7)(B)(v). We agree
with the district court that, pursuant to New Par, “injunctive relief is an appropriate remedy for [TCA]
violations.” 301 F.3d at 399. We disagree with the district court, however, as to the nature of appropriate
injunctive relief in this case. The district court concluded that an order requiring the City to act on
Wireless’s applications within sixty days was the appropriate remedy. This order failed to recognize that
the City had already effectively denied Wireless’s applications in violation of the TCA. The district court’s
sixty-day order would therefore only result in the inevitable occurring, namely a reaffirmance of the City’s
informal decision that the applications ought to be denied under the new regulations. See New Par, 301 F.3d
at 400 (noting that generally where the defendant has already provided a decision in violation of the TCA,
remand would serve no useful purpose). The City has recognized that under the amended zoning ordinances
Wireless’s applications are inadequate. See J.A. at 66 (Answer) (noting that “the proposed site in each
[Wireless] application did not and does not meet the setback requirements” in the amended zoning
ordinance). Given that the sixty-day order would serve no useful purpose, we conclude that the proper
remedy is injunctive relief compelling the City to grant the requested permits.
        Although the TCA does not specify a particular remedy for violations of its provisions, see 47 U.S.C.
§ 332(c)(7)(B)(v), we have repeatedly concluded that where the defendant denied a permit application, and
that denial violated the TCA’s “in writing” and “substantial evidence” requirements, the proper remedy is
injunctive relief compelling the defendant to issue the requested permit. See, e.g., New Par, 301 F.3d at
399-400; Telespectrum v. Pub. Serv. Comm’n, 227 F.3d 414, 419, 424 (6th Cir. 2000); see also Preferred
Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th Cir. 2002); Omnipoint Corp. v. Zoning Hearing Bd.
of Pine Grove Township, 181 F.3d 403, 410 (3d Cir. 1999); Cellular Tel. Co. v. Town of Oyster Bay, 166
F.3d 490, 497 (2d Cir. 1999). In New Par we recognized that an injunction requiring the issuance of a
permit ordinarily is a proper remedy when a governmental body has denied a permit without substantial
No. 03-6608                  State of Tennessee et al. v. City of Chattanooga et al.                                         Page 7


evidence supporting the denial. In support of this proposition, we cited numerous cases from various
circuits, including National Tower, LLC v. Plainville Zoning Board of Appeals, 297 F.3d 14, 21-22 (1st Cir.
2002), which stated that:
         The statutory requirements [of the TCA] that the board act within “a reasonable period of
         time,” and that the reviewing court hear and decide the action “on an expedited basis,”
         indicate that Congress did not intend multiple rounds of decisions and litigation, in which
         a court rejects one reason and then gives the board the opportunity, if it chooses, to proffer
         another. Instead, in the majority of cases the proper remedy for a zoning board decision that
         violates the Act will be an order, like the one the district court issued in this case, instructing
         the board to authorize construction.
Id. Were we to affirm the district court’s order giving the City sixty days to act upon the permit
applications, we would subject the parties to further litigation. On remand the City would inevitably again
reject Wireless’s applications, albeit likely in a formal written decision. See J.A. at 66 (Answer) (The City
“aver[s] that the applications as submitted would be inadequate to a obtain a building permit under the
applicable Zoning Ordinance.”). Wireless would then challenge this decision in federal court. Given the
Congressional intent embodied in the TCA to avoid multiple rounds of litigation, we conclude that the6
proper remedy in this case is injunctive relief compelling the City to grant Wireless’s permit applications.
Given that our past cases such as New Par and Telespectrum indicate that this is the proper remedy, we
conclude that the district court abused its discretion by failing to issue this form of injunctive relief.
C. § 1983 Claim
        As part of its complaint, Wireless asserted a claim pursuant to 42 U.S.C. § 1983. The district court
granted the City’s motion for summary judgment on this claim on the grounds that the TCA’s remedial
scheme was sufficiently comprehensive to preclude a § 1983 cause of action. Wireless           argues this
conclusion was erroneous. Although various courts of appeals have addressed this issue,7 whether violation
of the TCA gives rise to a § 1983 claim remains an open question in this Circuit.
         1. The Blessing Framework
         Title 42 U.S.C. § 1983 provides a private right of action against anyone who, under color of state
or territorial law, deprives a person of “any rights, privileges, or immunities secured by the Constitution and
laws.” The Supreme Court, in Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), set forth the framework
used to determine if a § 1983 claim exists to redress the violation of a federal right. Pursuant to this
framework, a plaintiff asserting a § 1983 claim must demonstrate that the statute at issue creates an



    6
       We are mindful that such a result might be seen as a windfall for Wireless, given that the City has the power under the TCA
and Tennessee law generally to alter its regulations. See 47 U.S.C. § 332(c)(7)(A) (“Except as provided in this paragraph, nothing
in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding
the placement, construction, and modification of personal wireless facilities.”); Schneider v. Lazarov, 390 S.W.2d 197, 200 (Tenn.
1965) (noting that under state law the filing of a permit application does not generally “confer[] any right in the applicant or
permittee against a change in the zoning ordinance which imposes further limitations”). The City’s fatal flaw here was that it
failed to issue a written decision supported by substantial evidence. Instead, the City effectively denied Wireless’s applications
through the City’s moratoria and Mayo’s telephone call. Under these circumstances, the City must bear the consequences of its
failure to comply with the TCA.
    7
      See Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th Cir.) (finding § 1983 cause of action), cert. granted, 125
S. Ct. 26 (2004); Primeco Pers. Communications, LP v. City of Mequon, 352 F.3d 1147, 1151-53 (7th Cir. 2003) (no § 1983
remedy available); Nextel Partners Inc. v. Kingston Township, 286 F.3d 687, 693-96 (3d Cir. 2002) (no § 1983 remedy available);
AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, vacated on other grounds, 223 F.3d 1324 (11th Cir. 2000) (concluding
§ 1983 remedy available).
No. 03-6608                  State of Tennessee et al. v. City of Chattanooga et al.                                         Page 8


enforceable right as that language is used in § 1983.8 Id. If the plaintiff succeeds in demonstrating “that
a federal statute creates an individual right,” this gives rise to a “rebuttable presumption that the right is
enforceable under § 1983.” Id. at 341. The burden then shifts to the defendant to show that Congress
explicitly or implicitly precluded a remedy under § 1983. Wright v. City of Roanoke Redev. & Hous. Auth.,
479 U.S. 418, 423 (1987). This can be demonstrated where Congress has acted expressly “by forbidding
recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that
is incompatible with individual enforcement under § 1983.” Blessing, 520 U.S. at 341. It is important to
note that “[t]he availability of administrative mechanisms to protect the plaintiff’s interests is not necessarily
sufficient to demonstrate that Congress intended to foreclose a § 1983 remedy. Rather, the statutory
framework must be such that ‘[a]llowing a plaintiff’ to bring a § 1983 action ‘would be inconsistent with
Congress’ carefully tailored scheme.’” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103,
106-07 (1989) (internal citations omitted). Finally, as an overarching principle in making this
determination, “‘[w]e do not lightly conclude that Congress intended to preclude reliance on § 1983 as a
remedy’ for the deprivation of a federally secured right.” Wright, 479 U.S. at 423-24 (quoting Smith v.
Robinson, 468 U.S. 992, 1012 (1984)).
        The parties do not dispute that the TCA grants enforceable rights. Accordingly, our inquiry focuses
solely on whether the City has met its burden by demonstrating that Congress intended to foreclose a § 1983
remedy. Because Congress did not explicitly foreclose such a remedy in the TCA itself, we must determine
whether Congress did so implicitly. Under this framework, we conclude that Congress did not impliedly
foreclose a remedy pursuant to § 1983.
         2. The TCA
         We do not believe the TCA’s remedial scheme is sufficiently comprehensive to evidence Congress’s
intent to foreclose a § 1983 remedy. The TCA was enacted to “encourage the rapid deployment of new
telecommunications technologies.” Pub.L. No. 104-104, 110 Stat. 56, 56 (1996). In order to promote this
purpose, state and local governments must “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.”
47 U.S.C. § 332(c)(7)(B)(ii). A denial of such a request must be “supported by substantial evidence
contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Finally,     anyone “adversely affected by any
final action or failure to act” may file suit in court within thirty days.9 47 U.S.C. § 332(c)(7)(B)(v). Suits
that are filed must be “hear[d] and decide[d] . . . on an expedited basis.” Id. This, in essence, is the sum
of the relief aggrieved parties may obtain for a statutory violation. They must bring their suit in court within
the thirty-day statute of limitations, where they are entitled to expedited judicial review. “Thus, the TCA
does not explicitly provide for any types of remedies such as damages, injunctions, attorney’s fees, or
costs.” Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094, 1097 (9th Cir.), cert. granted, 125 S. Ct.



    8
      As the Supreme Court noted in Blessing:
    We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a
    federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff
    must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement
    would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In
    other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.
Blessing, 520 U.S. at 340-41 (internal citations omitted).
    9
      47 U.S.C. § 332(c)(7)(B)(v) also permits parties to petition the Federal Communications Commission (“FCC”) for relief.
A party may only petition the FCC for relief, however, where the party believe that the state or local government has violated 47
U.S.C. § 332(c)(7)(B)(iv). This provision is only applicable when the state or local government has attempted to restrict “the
placement, construction, [or] modification of personal wireless service facilities on the basis of the environmental effects of radio
frequency emissions [when] such facilities comply with the Commission's regulations concerning such emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv). Like the other remedies provided for by the TCA, this provision is a narrow procedural provision which does
not indicate that Congress intended to foreclose a § 1983 remedy.
No. 03-6608                 State of Tennessee et al. v. City of Chattanooga et al.                                    Page 9


26 (2004). Accordingly, the Act provides only limited “procedural rights.” Id. We do not believe that these
narrow procedural provisions are so comprehensive as to foreclose a § 1983 remedy.
        We are aided in reaching this conclusion by focusing on other statutory schemes that the Supreme
Court has evaluated in determining whether a § 1983 remedy exists. For example, in Middlesex County
Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 13 (1981), the Court found both the
Federal Water Pollution Control Act and the Marine Protection, Research and Sanctuaries Act of 1972
“contain unusually elaborate enforcement provisions,” thereby foreclosing the possibility of § 1983 liability.
Specifically, the statutes provided for civil suits and penalties, criminal penalties, injunctive relief, litigation
costs, as well as suspensions or revocations of permits. See 33 U.S.C. §§ 1319, 1365, 1415. The Court
concluded that in light of all of these provisions, “Congress provided precisely the remedies it considered
appropriate,” and therefore “it c[ould] not be assumed that Congress intended to authorize by implication
additional judicial remedies for private citizens suing under [the statutes].” Sea Clammers, 453 U.S. at 14-
15.
        In contrast, in Wright, 479 U.S. at 424-25, the Court found the remedial scheme authorized in the
Housing Act not sufficiently comprehensive to imply that Congress intended to preclude a § 1983 remedy.
Distinguishing Sea Clammers, the Court in Wright noted the limited private remedies under the Housing
Act, consisting of local grievance procedures, and the absence of a sufficiently comprehensive or effective
remedial mechanism. The same result was reached in Blessing, 520 U.S. 329, where the Court concluded
that the enforcement scheme set forth for Title IV-D of the Social Security Act was “far more limited than
[that] in Sea Clammers” because “Title IV-D contain[ed] no private remedy — either judicial or
administrative — through which aggrieved persons c[ould] seek redress.” Blessing, 520 U.S. at 348.
        When these cases are contrasted with the present situation, it is clear that the TCA’s statutory scheme
does not suggest that Congress intended to shut the door on a § 1983 remedy.10 All that an adversely
affected party may do under the TCA to obtain relief is to file suit within thirty days and receive expedited
judicial review. “While one may argue that the lack of any damages in the TCA is evidence that Congress
impliedly intended to foreclose damages, a better justification for the absence of a remedial provision is that
Congress intended to preserve an aggrieved plaintiff’s right to invoke § 1983.” Abrams, 354 F.3d at 1098.
It would be inconsistent with the language of the statute and Congressional intent to characterize the TCA
as providing for a “comprehensive remedial scheme.” Accordingly, we conclude that Congress did not
implicitly foreclose a § 1983 remedy.
        Although the Third Circuit reached the opposite result in Nextel Partners, 286 F.3d 687, we agree
with the Ninth Circuit’s explanation as to why the Nextel court’s conclusion was “flawed.” Abrams, 354
F.3d at 1099. Specifically, we reject the Third Circuit’s characterization of the TCA’s remedial scheme as
one that “incorporate[s] [] notable benefits.” Nextel Partners, 286 F.3d at 694. As the Abrams court stated,
characterizing a thirty-day statute of limitations as working a benefit to a plaintiff is simply not plausible.
354 F.3d at 1099. In addition, we agree that because the TCA’s scheme is made up of “procedural, rather
than remedial, provisions,” it is compatible with the remedies available under § 1983. Id. This demonstrates
that the TCA’s statutory framework should not be viewed as evidence that Congress intended to preclude
a § 1983 action.



    10
       There has been much debate as to the role of the TCA’s general savings clause in determining whether Congress intended
to foreclose a § 1983 remedy. See, e.g., AT&T Wireless PCS, Inc., 210 F.3d at 1328 (finding that the language of the savings
clause “clearly forbid[s]” the court from construing the TCA to foreclose a § 1983 remedy); Abrams, 354 F.3d at 1100-1101
(same); but see Nextel Partners Inc., 286 F.3d at 696 (“[O]ur holding in this case — that the relevant provision of the TCA does
not create a right that is enforceable under § 1983 — does not mean that the TCA in any way modified, impaired, or super[s]eded
§ 1983.”). We need not address whether, as Abrams suggests, the language of the savings clause prohibits us from interpreting
the TCA to foreclose a § 1983 remedy. We believe that it is determinative that the TCA’s remedial scheme is not so
comprehensive as to suggest that Congress intended to foreclose a § 1983 remedy.
No. 03-6608            State of Tennessee et al. v. City of Chattanooga et al.                     Page 10


        In sum, because we believe the TCA demonstrates by its insufficient remedial scheme that Congress
did not intend to preclude a § 1983 remedy, we reverse the district court’s grant of summary judgment to
the City on this issue.
                                          III. CONCLUSION
         For the foregoing reasons, we REVERSE the district court’s sixty-day order and REMAND so that
the district court can issue appropriate injunctive relief ordering the City to grant Wireless the requested
permits. Because we conclude that a § 1983 remedy is available for violations of the TCA, we REVERSE
the district court’s grant of summary judgment to the City on this issue and REMAND the case to the
district court for further proceedings consistent with this opinion.
