first circuits you determine as a matter of first impression whether an applicant has been denied a permit at the local level to build a tower i told me a wireless telecommuted communications tower is required prior to being able to bring nature of your argument yes we're past the last day of the agreement and your view as the extension which means we're past one hundred fifty days yes i mean we were in we were at the time of the jurisdiction to hear this and you had to go through them yes if the agreement has terminated and we're past one hundred fifty days then under the sockpuppet ruling you have a right to go into district court for a reasonable delay even if the district  right is not true well and you're asking me to argue the the other side's position which is that no no no no i'm asking different i'm asking you i thought your position was that you had reached an agreement yes that extended the past hundred fifty days to three hundred eighty days yes that that time period expires has expired by the time we're into the suppose it appeals process that's required before the appeals or let's say t just the court is right that in the abstract there is no final action until the pills were cool but in your particular case even if that's true since the agreement to extend time has expired we're past one hundred  fifty days so are you arguing that there was unreasonable the way or no action taken and i get into court on that basis just because the town of rome made no decision within one hundred fifty days or the period i mean two days plus through the extension we have not made that argument on appeal the argument that we are making at sea there's a two tier process in front of the in front of the locality and we have tamed a final decision from the planning board and i was being that we did not make we did not make a local appeal and so there was nothing pending in front of the in front of the town at the time that the shot clock expired they had made their final action on on day three hundred eight and and so at this point we made the election at that point saying there was a final action in front of the planning board and and instead of going in front of the putative local court of appeals to ask them to give us relief we decided to pursue our rights under the tcas the district court and with the district court said was you know you need to go back in front of the court the local court of appeals and see if you can get relief from them before you can even get into a federal district court and what happened in that and i thought you were separately arguing that the planning court unreasonably delayed things because he didn't issue a decision at all well that that is yes it's one of your arguments right it is absolutely part part of our argument that there's unfinished business for the planning board and because it's not just that there's unfinished business if it's not final action you say it's unfinished business but because of the shot clock the unfinished business of the planning board gives you a right to get into federal court because we're past one hundred fifty days yes absolutely i mean that just is true if the appeals board has jurisdiction well the appeals but the town still will not have done anything and if you tell me you're just not argue that then you're that makes the whole thing somewhat fictional fictional no no you are but that we had a choice to make whether or not to pursue a local appeal and that decision was the decision was made not to pursue the local  and so right now there's a sixty day appeal period so the town says to make our appeal that appeal period has expired the ability to bring that appeal is at least let's say subject to doubt at this point that we have to extended periods of time and then pursuant to the local procedure you had to then go to the to the board of appeals we have still taken the position that you should not have to go before the board of appeals but i'm appropriate to impose additional requirement and in this local review process it is never appropriate under the telecommunications act to require that applicants who've received a final action from the initial decision life thank you for asking your honor this is based on the one nine hundred eighty five us supreme court case that determine what final action is for purposes of rightness when you have a federal claim and you want to get into district court and what what  the williamson county case what the u s supreme court said is that final action is when the initial decision maker at the local level comes to a final position on the matter that inflicts actual injury on the applicant and that's exactly where we are you know wonder williamson county whether something is treated as a right if a state court would refuse to take review of local land decision because in the state court to do there was another dimension of appeal at the state or local level that was available had to be taken that is a very astute question your honor and i and i think what you're  asking is does state law determine when the action is right and my answer would be that rightness is determined when for purposes of opening the doors to federal court on the federal question is determined at the federal level and not based on whether state courts would take jurisdiction of the claim is that a way of saying that there are cases that say land use decisions are right under williamson even when the state courts would not treat the local decision seems to be trying to balance on the one hand and need to get review in on the other hand federalism principles on the conference report refers to the thing you don't have to go through the state court remedial process yes totally understandable as i understand the town's decision they're not saying you have to go through the state court mino process you just have to reach the end of the line through the state and local processes before you get to the state court remedial process yes now you're saying you can jump the line you get a federal court quicker than you could sta court well we are saying that look state court has concurrent jurisdiction if there actually not sure about that let me let me sort of set that aside i am not sure if the state court could take jurisdiction of this case just based on the fact that there is a federal question under the tcas to whether we were effectively pretty good from providing services in the town of rome i am not sure about the answer to that question but what i do know is that under the t distinguishing between finality and exhaustion of administrators or anything if you take a look at the language that the supreme court used in distinguishing it it said finality is about this is i think that's true but in a case in which the state courts took that the applicant would of course not be required to appeal to the local zoning board of appeals before bringing their taking action because in that case the state courts didn't require it before they'd review it i don't believe that that's the whole by the supreme court i  requirement without turning that exhaustion is required correct me if i thought the state of the law was this and it seems to me on the point of view supports this proposition that if there is a local planning board decision and the next step would ordinarily be resort to the state court but that argument that there is still a chance to appeal to a state court does not affect the finality of the decision of the planning board there are cases that i think are very clear to that point but if there is a local review process that involves an appeal from a plan board to a board of appeals as we have here that in deference to the political procedure and that is at least one consideration of the dca we do not have finality until that moakley determined second administrative step is taken i thought that was a dichotomy if you will that is what will stop bush in the cases and here you have a situation where you do have this local determination that a second step is necessary for the process is completed in respect your honor there are none of the cases factually have addressed this issue before either the situation has been that there is another avenue to obtain relief there is more than one step that can be taken in front of the initial decision maker or there are different bodies that can provide different forms of relief to get to where the applicant wants to go in which case there wasn't finality or the cases had the initial decision maker is has made their final action and the if in the end the court has said you know the argument that you need to go to state court doesn't doesn't win the day for your asking us to accept your characterization well no i am asking the court to recognize that the wireless ordinance itself in sections two and ten places that authority soley with the planning board of the local level it says applicant no one shall be permitted to build a wireless telecommunications tower in the town of rome without first getting a special use permit from the planning board the wireless ordinance itself dictates that the planning board is the initial decision maker here and all we're saying is the district court imposed in additional exhaustion requirement that didn't recognize that the final action of the universal decision maker was made thank you thank you the central question here which i think a lot of the court's questions of the appellate have gotten to is how do you interpret the telecommunications act in a way that harmonizes the two goals that are seemingly disparate that is the goals of federalism protecting preserving local control and then the other ball further in the federal interest of developing telecommunications technology the only way to interpret let me  town issues what you say is it is a written decision finding some conclusions which you characterize probably rockall as a as a written decision right situation any applicant confronted with a situation where they're trying to get final action from a town and final action does not come within the presumptive deadlines at least of the shot clock can bring a failure to act claim under the t c day they are not required under the ts we're not saying that the applicants are required to continue with the and disciplined process and not pursue any claimant of the t c s if they think there's been a failure to act they can bring that claim that potential argument they would have had which is that because the appeals process is going to extend further that would be a failure to act that might have been available thing but they waived it and the reason you say they waive is that they're free to waive it because maybe they prefer to actually get a good ruling through the state or local processes before jumping into federal court because if they do that's probably better for the harmony of them going forward and going along with the town in a thousand other things right if they want to pursue that they're free to pursue it that's correct and that's a decision any applicant can make when confronted with what they think is a failure to act conceivably they could if they want to bring a claim for fair to ask using pragmatically how it works out of the t c i suppose i go into federal court and bring my suit as an unreasonable to lay claim right compared to i bring my suit as a challenge the final agency action claim practically speaking is there a difference one of the christmas i don't know this is right in the final action case i've got a decision that i'm appealing in and we challenges are substantial evidence to support it in an unreasonable to lay case what happens  action vs unreasonable delay is that anything that we could get guidance time well i think this far as i know the case law on that question is perhaps not nonexistent but very thin it appears to me that court under failure to act claim really under any claim brought under the dca has broad discretion in what type of order it may issue so conceivably an applicant frustrated with the lay on the part of the town and not wanting to just challenging an actual decision i think on the natural decision certainly if a court were to find that then you've got this is the initial evidence standard that applies in all of that right and if the locality met the substantial evidence standard then presumably the look alan would prevail if it did not meet that standard then again i think you go back into the world of the what matters what theory you're coming up on not just whether you can get into court all right but also about the nature of the  unfold again at a next step and at some point i mean there has to even if there is an attempt to sort of honor local decisions as to how the appeal process should play out you reach a well a couple things could happen sounds like that's what you're saying the parties the parties could agree to submit this right out of the town of cedrick a said in our briefs parties could agree to submit the transcripts of the of what occurred at because if it's taking too long and you're past the shock ruling then the company can always bring an unreasonable delay claim that but if what they want is a federal court to review a final decision of the town they have to abide by what state law treats as a final decision of the town which can't occur according to the state courts until the planning board has been reviewed by the appeals board where the time for making such appeal has run that's absolutely right that there's been sort of of the different types of claims in the briefing if it any point of an applicant thinks the process is dragging out too long whether it's in the appeal stage or the initial decision maker stage wherever it is provided  way it has been designed is incompatible with the goals of the two you see that it's a it's a really is an unreasonable procedure necessarily imposes a reasonable way i don't even i don't even know that they have to go that far in making the argument but i think technically after you get past the presumptive deadline or any agreed to deadline within thirty days after that date the applicant can bring a claim in federal court saying there's been a failure to act  and i can add to that that the process has been reasonable because of course the town in this ballot has the ability to rebut the presumption of the shot and presumably a municipality might start to say well we're trying to exhaust our local procedures go through our local procedures we haven't had an opportunity to and that's where the applicant would have the ability to say well it's under reasonable this is extended well past what the  it's final action we look at that by just determining under state law is this another required process you have to go through if you want to get into state court that's right and i think that reading is the one that harmonizes  opportunity at least to go through the process that it has designated for these applications and if if that process takes too long or is otherwise an reasonable there is a remedy available so that the federal interest is protected in