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Western Radio Servs. Co. v. Glickman

ELR Citation: 28 ELR 20137
Nos. 96-35773, 113 F.3d 966/(9th Cir., 05/07/1997)

The court upholds the U.S. Forest Service's decision to grant a cellular phone company a special use permit for a telecommunications facility on Dead Indian Mountain in the Fremont National Forest, Oregon. The court first holds that the Forest Service's decision to grant the permit was not arbitrary, capricious, an abuse of discretion, or contrary to law under the National Forest Management Act (NFMA) and the Administrative Procedure Act. The Forest Service determined that its decision was consistent with the Fremont National Forest Plan, that the project would comply with the Federal Water Pollution Control Act, and that it would have no significant environmental impacts. And a competing permit applicant failed to identify any specific statutory or regulatory provisions with which the Forest Service failed to comply in issuing the special use permit to the company at the Dead Indian Mountain site. Next, the court holds that Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945), does not require the Forest Service to consider jointly the applications submitted by the cellular phone company and the competing permit applicant. Neither the NFMA nor its regulations provide special use permit applicants with a right to a hearing. A special use permit for a telecommunications use may include conditions requiring the holder to co-locate with other holders, to accommodate other landusers, or to avoid creating interference. While the Forest Service may solicit competitive bids for projects it wishes to initiate, it has no statutory or regulatory obligation to award special use permits on a competitive basis. And it was not seeking bids for the construction or management of a facility on the site. The court next holds that even if Ashbacker applied, the competing permit applicant would not be entitled to consolidated consideration. The two applications were mutually exclusive only in the sense that only one applicant could construct a tower in the precise location both requested. The Forest Service discussed alternative sites on the mountain with both applicants. And regardless of which applicant built a tower and equipment shelter at the site, each could receive a permit to conduct its telecommunications activities at that site. Moreover, they are not direct competitors in the same communications market. Last, the court holds that the competing applicant's argument that an intraagency letter directing all local units of the Forest Service to postpone issuance of multiuser special use permits had substantive regulatory effect without going through proper notice-and-comment procedures is moot. The Forest Service did not actually grant or deny the competitor's permit application in reliance on the letter, because the Forest Service has not finally acted on the competitor's application. And the letter has been superseded by a published fee schedule, which does authorize multiuser permits. The letter, therefore, has no current effect or continuing consequences.

[Decisions related to this litigation are published at 26 ELR 20829 and 27 ELR 21094.]

Counsel for Plaintiffs
Paul Merrell
Law Offices of Paul Merrell
2445 Agate St., Eugene OR 97403
(541) 345-8708

Counsel for Defendants
Tamara N. Rountree
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tashima and Schwarzer, JJ.