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Boston University School of Law




In this article, we argue that enforcing the TCA against state and local zoning authorities raises serious legal concerns, especially if such enforcement is via a § 1983 "and laws" action. In particular, we argue that courts should not award attorney's fees under § 1988 to providers who prevail in claims alleging violation of TCA section 704. First, we argue that this is not an appropriate "and laws" claim because the TCA's cell siting provisions, in the main, do not create rights that are enforceable via § 1983 action. Further, in our view Congress did not intend that providers be free to use an "and laws" claim to enforce their rights under the TCA and receive an award of attorney's fees. Second, even if an "and laws" claim is available, we argue that courts should use their discretion not to award attorney's fees because (1) the civil rightsrelated purposes of the attorney's fees statute, as an exception to the American rule, are not met, and (2) the awarding of attorney's fees would threaten to undermine local government control of the important area of zoning. Third, we discuss the constitutionality of both the TCA's cell siting provisions and the "and laws" clause of § 1983. We first argue that some provisions of § 332(c)(7) may be unconstitutional because they impose specific duties on local government in violation of the anti-commandeering principle applied in recent Supreme Court Tenth Amendment jurisprudence. Next, we raise the possibility that the "and laws" clause of § 1983 is unconstitutional under recent understandings of congressional power to enforce the Fourteenth Amendment, at least when the clause is used to enforce laws passed under powers not related to civil rights, such as the commerce power under which the TCA was passed.

This article proceeds as follows. In Part I, we review the personal wireless communication service industry, focusing primarily on the provisions of the TCA relating to local zoning authority. In Part H, we explain and criticize the doctrinal basis under which providers have been awarded attorney's fees through the "and laws" clause of § 1983. In this Part we argue that the "and laws" clause should not apply to actions to enforce the TCA because providers should be confined to enforcement under the TCA itself, and that even if the "and laws" clause does apply, courts should use their discretion to deny attorney's fees awards in cases enforcing the TCA. In Part III, we examine the obligations the TCA places on state and local government officials and conclude that, at least in part, the TCA violates the Tenth Amendment anticommandeering principles recognized recently by the Supreme Court. We also argue in this Part that the "and laws" clause may be unconstitutional by exceeding Congress's power to enforce the Fourteenth Amendment. Part IV summarizes our conclusions.

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