there's no way her in here congress is not contemplated anything regarding damages against the state how do we get damages against a local government you can't get damages against the state here either to regulate commercial activity in residential zones if that's true then there isn't doesn't that kill your your argument i mean if they have some discretion somewhere along the line because they don't want people operating a commercial enterprise forget that it's tenner you know they don't want people operating a garage a repair facility or whatever it is your home is there some discretion doesn't that insulate them from damages or state law i don't think so and again i think it's because if you look at the the language in the there are limits on constructing modifying or otherwise i'm doing something to record a new facility if their main concern is about frequencies and about health concerns are a frequency those and we know our guy to operate a commercial antenna farm and we have to let somebody else operate a commercial car repair place  the telecommunications act on its purpose if you look at the the idea that that even in cases where they're constructing you know i mean there are limitations on the construction of modification of physical radio facilities and in some cases those those courts in most cases of you know reversed and said no you have to give him a permit because you know that that's just a small modification if you have no modification at all and there is no difference to the neighbors and that's the whole point there and both experts in reason damages in fact some of this could be as arguments can be used in favor of having damages under talking to patients act because although it says you have to you have this procedure you have thirty in thirty days to object and then you have an expedited review review took three years i mean there's nothing there's nothing that says there's no pressure on the local government to act expeditiously other than this you know tel congress choose language that was similar to the a p a and yet a war damages under that i don't know that one necessarily follows the other i mean the fact that there is a fair procedure that that of damages as well if we've chosen language it's very similar to the a p a which we have which we have the availability of judicial review of agency action which is what we were provided for here this is judicial review of state and local agency action seems like we're we're going to have to wrench some language here in order to find the damage action the t c s that maybe and i'm not sure how the child to have resolved the conflicts you're talking about except to say that not available unusual remedies such as damages are and that's i think where the starting point but in this case i think you can find justice for mr kay on a much narrower issue of the course of the trouble with c c a and that is the spate ten damages for denial of a conditional use to the plaintiffs theory that somehow with the city has done here is regulate radio frequencies and that is that is just not the case a preparatory comment struck a has admitted in his briefing that the city had the discretion to impose all of the conditions that it did impose on the c of e except for this condition that five of the the original five antennas that had been approved for amateur use three of those be removed and to be left standing for commercial  what's missing from mr mcroberts analysis is the fact well the slate in the records that the city not only allowed mr k to have the two rooftop antenna is but an unlimited number of antennas on the second floor of the residence and as the record shows this house has never been used as a residence it has been used as a commercial and ten a facility that is not a disputed fact in the record since mr k purchased the home so mr k could use whatever f c c licensed frequencies he discretion here because it was required to allow the five original antennas to remain for commercial purposes under the theory that if the city did not allow that it would be regulating radio frequencies and i am rebutting that argument by saying the city did not regulate radio frequencies here at all because mr k could have used any of this f c c license frequencies on the two rooftop antenna sent on an unlimited number of interior antennas there is no evidence in the record that mr k was precluded abrams could not use any of his f c c license frequencies at all that is not the case here the city simply is not regulating radio frequencies so the student did not have a ministerial duty here to allow mr k to use the five an damages liability under state law i'd like to move on if as i may to the telecommunications act question we are here confronted with a statute to the silent with respect to damages and so what the supreme court has said we do in this type of second is the structure and purpose of the act with respect to the law as it existed at the time the act was adopted this statute is a rare federal foray into an area traditionally preserved for regulation to state and local governments there is a preservation clause three thirty two c seven and eight explicitly expressly preserves to state and local governments their traditional zoning authority except through the narrow carved out of limitations in subdivision the and there is in violation of state law because substantial evidence doesn't support the decision and that was the violation here in fact no state expressly provides for an award of damages in those circumstances and forty two jurisdictions the forty one states and the district of columbia expressly immunized states and localities for damages awarded in those instances so if we look to the laws that existed at the time the act was adopted it seems plain to me that congress did not intend for record the house conference report underlying the act the house care the conference report characterizes the action challenging the local agencies decision as an appeal on appeal to the district court or to the superior court you couldn't bring ac subdivision five as in the nature of an appeal so my point and my point there is that the congress looked at the district court or the superior court if it's brought in state court is an appellate body reviewing the agency decision and appellate bodies normally do not award damages they herm reversed or modify or vacated remand that is one structural aspect of the act indicating that congress did not intend for an award of damages we can also look to the command in the act the action has to be heard and decided on an expedited basis expedition is more consistent with hearing a lawsuit on a state's record in a bench trial than it is to opening up the discovery process when you have a damages  brought within thirty days and we find that in almost all of the state remedial regimes the longest limitations period i found was ninety days and california has a ninety day period but this is indicative of congressional intent to insulate state remedial regimes or to not legislative history is to promote competition so the price of telecommunications features and technologies to the end user would be reduced and service would be increased and to encourage the rapid deployment of technology it has been suggested by mr kenny that look tallies need damages awards as an incentive to comply with the act if congress had intended the damages awards needed to be an incentive surely it would have included and express absent here and congress certainly would have said it am i just can be awarded against the backdrop drop of a multitude of state laws which immunize municipalities from damages particularly when those laws are preserved in the very act itself council to act in a reasonable manner and force federal law which they did and i mean i'm not sure what our remedy is if they would have taken four or five years i think coming up with pe at the state court level that is why the city originally brought the state court proceeding because it found out that individuals repay mr kay to use his antennas and that is why i brought the lawsuit the only way the city could detect those was by looking at the use are much they're not as strict as the criteria for commercial purposes and that is because of federal regulation p r p one which is referred to in the record cities have to allow amateur use and cannot they have to impose the least amount of restrictions under p r b one for amateur intended use cities are allowed with the exception of the prohibitions of the telecommunications act we're dealing with here to regulate commercial use and so the permeating process mr cain added no love for another eleven antennas to his roof to try and she warned the men under the end of service between so all of a sudden he could say the city can't regulate commercial frequency so i'm allowed to have all of these antennas and