What town wouldn't want this?

Photographer: Darren McCollester/Getty Images

T-Mobile Takes on a Georgia Town

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Why must the government give reasons for its actions? This is the kind of fundamental question of due process at which the U.S. Supreme Court excels. Today the justices will walk into the courtroom and pretend they’re unaware of the headlines announcing that they've agreed to consider the Affordable Care Act and will almost certainly have to consider same-sex marriage. Then they'll get down to work and consider whether the city of Roswell, Georgia, sufficiently explained its decision to turn down T-Mobile's request for a cellphone tower dressed up to look like an oversize Georgia pine.

In historical terms, due process of law when applied to a legislative body has been a minimalist requirement. Judges ruling to take away life, liberty or property from individuals must give reasons for their decisions.* But Congress or state legislatures or city councils haven't been subject to the same obligation. It's enough that the legislative body followed its prescribed legal procedures and voted.

To put it schematically, lawmaking is an act of will, requiring no explanation. Judging is an act of reason -- and so some explanation is in order. One important consequence of reason-giving in particular cases is that it facilitates appeals. A reviewing court can ask whether the decision was based on substantial evidence, was reasonable, or was arbitrary and capricious. It's much harder to perform that reviewing function if no explanation is given.

So what about the Roswell City Council? Under the Telecommunications Act of 1996, a local government deciding on a question like permitting a cellphone tower has to provide its decision “in writing.” When T-Mobile applied for a permit in 2010, the city council held a public hearing at which experts and members of the public were permitted to speak -- as were, of course, the city council members. At the end of the hearing, the council members voted no. As evidence that it had issued its decision “in writing,” the city provided the minutes and transcript of the hearing.

T-Mobile went to federal court and argued that a mere transcript of a public hearing shouldn't count as a decision “in writing” -- most importantly because the transcript didn't adequately give the council's reasons for action. A district court agreed with T-Mobile, but the U.S. Court of Appeals for the 11th Circuit reversed, holding that the transcript provided adequate indication of the council's reasons. T-Mobile then went to the Supreme Court, which is now hearing the case.

On the surface, it would appear that the city council is a legislative body, which as a matter of statutory logic and constitutional principle shouldn't have to write up a separate explanation of its actions. It's enough that the council held a hearing and voted.

But the case is actually more complicated: The city council is indeed a kind of mini-legislature, but it was acting in this case under complicated federal law that creates a comprehensive regulatory structure for the telecommunications industry.

If the decision to deny the permit had been issued by a federal regulatory agency, there's no question that the agency would have to give express reasons to support its decision, not just provide a transcript of its hearing. The background for this requirement lies in the structure of modern administrative law -- in which reason-giving is the single most important principle.

The plethora of administrative agencies that emerged at the time of the New Deal and peaked in the 1970s make rules and regulations that govern what we eat and drink, the quality of our air, the drugs we take -- and the structure of our electronic life. These wildly powerful administrative bodies sometimes act like legislatures, and they sometimes act like courts.

To the Founding Fathers, legislation and adjudication were two different jobs. But administration falls somewhere in between. To ensure that administrative agencies follow due process, the Administrative Procedure Act of 1946 generally requires agencies to explain what their decisions in writing, after which those decisions are reviewed by the appellate courts to make sure they’re supported by “substantial evidence” and aren't “arbitrary and capricious.” As interpreted by the courts, that act essentially demands reasons from agencies. The Telecommunications Act can and should be read in the light of the Administrative Procedure Act.

So if federal law was deputing the Roswell City Council to act like a regulatory agency, it would follow that the city council should give express reasons for its decision. This injects an extra element of federalism into this case. No one disputes that Congress has the right to regulate telecommunications, and therefore no one disputes that a local city council’s decisions can under the circumstances be governed by federal law. But is it proper to make a local council act like a federal regulatory agency? This is the core of the issue the Supreme Court will have to decide.

The right answer depends a lot on whose perspective you take, the city council’s or T-Mobile's. From the city's standpoint, it seems absurd that the same body that regularly makes local laws should suddenly have to meet a higher burden of explanation or justification just because a national industry is involved. From T-Mobile's perspective, however -- which could also be described as the perspective of the national markets -- it's outrageous to be governed by local elected officials who can make their decisions impervious to review.

Look for the Supreme Court to figure out which perspective should predominate. Due-process-loving liberals will probably be feeling pro-corporate. Federalism-loving conservatives will probably be trending anti-big business. Enjoy! This is what makes the Supreme Court fun.

* What about juries, you ask? Good question! They're supposed to decide facts, not law -- and they don't give explanations. The important difference between a jury and a judge seems to be a limitation to factual questions and the practical impossibility of asking for an explanation. But that's a topic for another day.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net