In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 03-1514, 03-1548

PRIMECO PERSONAL COMMUNICATIONS, LIMITED

PARTNERSHIP, d/b/a VERIZON WIRELESS,

Plaintiff-Appellee, Cross-Appellant,

v.

CITY OF MEQUON,

Defendant-Appellant, Cross-Appellee.

____________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 01-C-1205—Lynn Adelman, Judge.

____________

ARGUED SEPTEMBEr 15, 2003—DECIDED DECEMBER 18, 2003

____________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. One of the concerns that led up to

the enactment of the Telecommunications Act of 1996, 47

U.S.C. §§ 151 et seq., was that zoning decisions by local

governments were unreasonably retarding the growth of

cellphone and other wireless services. Congress decided not

to preempt local regulation entirely, but instead (so far as

bears on this case) to require that the denial by a zoning

board or other state or local government body of a permit to
2 Nos. 03-1514, 03-1548

construct “personal wireless service facilities,” such as an

antenna high enough to be in the line of sight of cellphone

users, as required for cellphone service, “shall be in writing

and supported by substantial evidence contained in a

written record.” § 332(c)(7)(B)(iii); see, e.g., VoiceStream

Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 829-32 (7th

Cir. 2003). This requirement is enforceable by suit “in any

court of competent jurisdiction.” § 332(c)(7)(B)(v). But

Congress did not prescribe a standard to guide the local

authorities’ determination whether to grant a permit.

Turned down by the planning commission of the City of

Mequon, a suburb of Milwaukee, and on appeal by the

City’s board of zoning appeals (without opinion, so that the

only written record of the evidence and reasoning supporting denial is the transcript of the planning commission’s

deliberations), for a permit to build an antenna in its

preferred location, Verizon sued the City in the federal

district court in Milwaukee. It contended that the denial of

its application was not supported by substantial evidence.

It based federal jurisdiction on the presence of a federal

question, namely whether the City had complied with the

provision that we quoted from the Telecommunications Act.

The district judge granted summary judgment for Verizon

and ordered Mequon to issue the permit. The City has

appealed. Verizon has cross-appealed from the denial of

attorney’s fees.

The “substantial evidence” standard is conventionally used for judicial review of agencies’ decisions, and

though it is unusual for a federal court to be reviewing

the decision of a nonfederal agency, we are given no reason

to suppose that the term “substantial evidence” in the

Telecommunications Act bears a different meaning from the

usual one. And indeed we have held that it bears the same

meaning. VoiceStream Minneapolis, Inc. v. St. Croix County,
Nos. 03-1514, 03-1548 3

supra, 342 F.3d at 830; Aegerter v. City of Delafield, 174 F.3d

886, 889-90 (7th Cir. 1999). So have the other federal courts

of appeals that have considered the question. See Preferred

Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir.

2002), and cases cited there. As there is no practical difference between the substantial-evidence standard and the

even more familiar clearly-erroneous standard when the

latter standard is used to guide the application of a legal

standard to district court factfindings, School District of

Wisconsin Dells v. Z.S. ex rel. Littlegeorge, 295 F.3d 671, 674-

75 (7th Cir. 2002), and cases cited there, the question in this

case comes down to whether the Mequon planning commission was clearly in error to turn down Verizon’s application,

in light of the evidence that had been placed before the

commission.

A reasonable decision whether to approve the construction of an antenna for cellphone communications requires

balancing two considerations. The first is the contribution

that the antenna will make to the availability of cellphone

service. The second is the aesthetic or other harm that the

antenna will cause. The unsightliness of the antenna and the

adverse effect on property values that is caused by its

unsightliness are the most common concerns, as in

VoiceStream Minneapolis, Inc. v. St. Croix County, supra, 342

F.3d at 831-32, and Southwestern Bell Mobile Systems, Inc. v.

Todd, 244 F.3d 51, 61-62 (1st Cir. 2001). But adverse environmental effects are properly considered also, 360/ Degrees

Communications Co. v. Board of Supervisors, 211 F.3d 79, 82,

84 (4th Cir. 2000); cf. AT&T Wireless PCS, Inc. v. WinstonSalem Zoning Bd. of Adjustment, 172 F.3d 307, 315 (4th Cir.

1999), and even safety effects: fear of adverse health effects

from electromagnetic radiation is excluded as a factor, 47

U.S.C. § 332(c)(7)(B)(iv), but not, for example, concern that

the antenna might obstruct vision or topple over in a strong

wind. See generally Timothy J. Tryniecki, “Cellular Tower
4 Nos. 03-1514, 03-1548

Siting Jurisprudence Under the Telecommunications Act of

1996—The First Five Years,” 37 Real Propery, Probate & Trust

J. 271, 279-84 (2002).

The balancing test can be refined a bit. The availability

of cellphone service is a function of the number of existing service providers and the coverage and quality of service that the applicant could achieve by constructing his antenna in another location where its unsightliness (or other

harmful effects, but none is suggested here) would be less

of a problem or by sharing an already existing telecommunications tower. The unsightliness of an antenna depends on

its height, thickness, and general appearance, the number of

other antennas in the area, and the character of the area’s

land uses (for example, residential versus commercial),

including the height of other buildings in the area. Coverage

is a function of the number of providers, the coverage by

each provider, and the increase in overall coverage at the

disputed site if the antenna is built there, compared to

alternative locations. Thus a new firm that has from a

service standpoint two equally good alternative sites can

rightly be compelled to place the antenna in the less conspicuous location, which might be an existing telecommunications tower. See Metro PLS v. City & County of San Francisco, 259 F. Supp. 2d 1004, 1010 (N.D. Cal. 2003).

Verizon was having trouble providing cellphone service

along a stretch of a busy street called Mequon Road. A

nearby church in an area zoned institutional, though largely

residential, was willing for a price that Verizon was willing

to pay to allow an antenna to be built in the church’s

backyard. The antenna would be 70 feet high and 9.5 inches

in diameter (originally it was to be both higher and thicker,

but its dimensions were changed in an unsuccessful bid to

make it more palatable to the planning commission). To

reduce its unsightliness, it would be disguised as a flagpole.
Nos. 03-1514, 03-1548 5

The planning commission hired a reputable telecommunications consulting firm to analyze the issue of availability of

service. The firm reported that the antenna would increase

Verizon’s coverage of the area along Mequon Road from 37

percent of the area to 95 percent. Two alternative locations,

one a high school and the other a country club, both of

which the planning commissioners preferred to the church’s

backyard, were analyzed but were adjudged unsuitable.

This was less because they would give Verizon coverage of

only 72 percent of the Mequon Road area than because their

proximity to other Verizon antennas would interfere with

the service provided from those antennas.

The fact that Verizon would be unable to cover 95 percent

of the area along the Mequon Road is not decisive evidence

that denial of the permit would impair cellphone service.

We do not know how many potential customers for such

service there are in the area (including commuters and other

transients as well as local residents), nor how many other

providers of cellphone service serve them and with what

quality of service and at what price. For all we know, the

impact of the denial of the permit sought by Verizon would

be negligible. But the only reason the planning commission

gave for attaching little weight to the interest of cellphone

users was that 72 percent coverage, while not 95 percent, is

good enough—and in so reasoning the commission overlooked uncontradicted evidence that because of interference

the quality of service in the area of the 35 percent increase

in coverage (72 percent minus 37 percent) if the antenna

were placed in an alternative location would be degraded.

The City’s brief states that “the greater the interference, the

lower the coverage.” That is not true. You could have 100

percent coverage, but lousy service because of interference.

This concern seems not to have registered on the members

of the planning commission.
6 Nos. 03-1514, 03-1548

Against the impact on Verizon’s coverage the commission

set aesthetic considerations. But no evidence or reasoned

analysis can be found in the transcript of the commission’s

meetings, and except for the commission’s letter turning

down Verizon’s application on the ground that alternative

locations for its antenna were available (which is not

denied—the issue is how inferior they are), that transcript

is the only record of the basis for the commission’s decision.

We know that the church in the backyard of which Verizon

wants to put its antenna is located in an area in which

institutional land uses are permitted, though apparently

residential uses predominate; but that is all we know, except

the dimensions of the “flagpole” that Verizon wants to

build. We are not told the height of any of the structures in

the area, not even that of the church, which for all we know

is 70 feet high or higher. We are not told why a 70-foot

“light pole”—the disguise for the antenna that the commission suggested be used for the alternative site at the high

school—would be less unsightly than the flagpole in the

churchyard, or visible to fewer people.

The only “evidence” bearing on aesthetic considerations

was the testimony of three or four residents that they don’t

like poles in general; they didn’t say they would object to a

flagpole in the church’s backyard. If blanket opposition to

poles could count as sufficient evidence for denying an

application to build an antenna, the substantial-evidence

provision of the Telecommunications Act would be set at

naught. It is not sufficient evidence, as the cases make clear

by saying that “generalized” aesthetic concerns do not justify the denial of a permit. New Par v. City of Saginaw, 301

F.3d 390, 398 (6th Cir. 2002); Southwestern Bell Mobile

Systems, Inc. v. Todd, supra, 244 F.3d at 61; Omnipoint Corp.

v. Zoning Hearing Bd., 181 F.3d 403, 409 (3d Cir. 1999). Even

the commission seems not to have taken this “evidence”

seriously, for the City states in its brief that the planning
Nos. 03-1514, 03-1548 7

commission “did not base its denial [of Verizon’s permit

application] on local opposition to visual intrusion.”

Several commissioners expressed “slippery slope” fears.

They worried that if they approved Verizon’s application,

soon Mequon would be covered by a forest of telecommunications towers. Such fears are not completely groundless,

though “forest” grossly overstates what lies at the bottom of

the slippery slope. True, the more towers there are, the less

the measurable effect of another tower on the character of

the neighborhood—which may in any event have changed

in the direction of commercial uses as the result of previous

installation of towers. See VoiceStream Minneapolis, Inc. v. St.

Croix County, supra, 342 F.3d at 830; Second Generation

Properties, Ltd. v. Town of Pelham, 313 F.3d 620, 628 (1st Cir.

2002). But at the same time, the more towers there are, and

therefore the more comprehensive the cellphone service

available in Mequon, the weaker the argument for another

tower based on a claimed need for wider coverage or

greater competition. Sprint Spectrum L.P. v. Willoth, 176 F.3d

630, 643 (2d Cir. 1999); Metro PCS v. City & County of San

Francisco, supra, 259 F. Supp. 2d at 1010. There is no evidence of how many telecommunications towers there are in

Mequon, however, and so the “slippery slope” argument

can’t get off the ground.

The commissioners invoked a preference for “collocation”

(also and more illuminatingly spelled “co-location”)—that

is, for placing a new antenna in an existing telecommunications tower or other structure of the requisite height and

capacity, such as a church steeple. Fair enough. But it is

undisputed that Verizon had no suitable collocation opportunity. And the preference for collocation comes into

play only when erecting an antenna in a new location is

objectionable because of unsightliness or some other factor,

and we have seen that there is no evidence that Verizon’s
8 Nos. 03-1514, 03-1548

proposed flagpole would if erected in the churchyard be

considered unsightly by the neighbors or have any other

adverse consequences.

It is doubtful that the planning commission’s decision can

be said to be supported by any evidence at all; certainly it

cannot be said to be supported by substantial evidence. That

is in contrast to our recent decision in the VoiceStream case,

which involved a proposed 185-foot communications tower

in one of the most scenic regions of Wisconsin.

Since the problem with the commission’s decision is not

that the evidence shows that it was wrong but that the

record contains insufficient evidence to have enabled the

commission to make a responsible decision, it might seem

that we should remand the case to the commission for

further evidentiary proceedings. But the City has not requested such relief, and so the district court was right to

order that the permit be issued. For completeness we note

that both New Par v. City of Saginaw, supra, 301 F.3d at 399-

400, and Preferred Sites, LLC v. Troup County, supra, 296 F.3d

at 1220-22, together with cases cited in those two cases,

express skepticism about the appropriateness of remands to

local authorities, because of the delay in the final resolution

of the dispute that a remand would cause; we needn’t take

a position on the issue in this case.

We turn to the cross-appeal. Verizon based its suit not

only on the Telecommunications Act but also on 42 U.S.C.

§ 1983, which provides a federal civil remedy for the violation of federal rights, statutory as well as constitutional,

under color of state law. Which is an apt description of what

happened here: local officials violated a federal right of the

plaintiff. And the prevailing party in a section 1983 suit is

entitled by 42 U.S.C. § 1988, more or less as a matter of

course, to the attorneys’ fees reasonably expended by him

in the suit.
Nos. 03-1514, 03-1548 9

We can assume that the various requirements for a section

1983 case have been satisfied, such as that, in a case in

which the only defendant is a municipality rather than

individual officers or officials of the municipality, the act

challenged in the suit have been the act of the municipality

itself, that is, an act done at the policymaking level of the

municipal government or pursuant to a policy of that

government, Monell v. Department of Social Services, 436 U.S.

658, 690 (1978); Gernetzke v. Kenosha Unified School Dist. No.

1, 274 F.3d 464, 468-70 (7th Cir. 2001), since, as Monell held,

respondeat superior is not available in such suits. But we

agree with the district court that section 1983 remedies are

not available in a suit to enforce rights granted by the

Telecommunications Act. Nextel Partners Inc. v. Kingston

Township, 286 F.3d 687, 693-96 (3d Cir. 2002); National

Telecommunication Advisors, Inc. v. City of Chicopee, 16 F.

Supp. 2d 117, 121-23 (D. Mass. 1998).

The general rule in America (the “American” rule, as it

is known) is that the prevailing party, whether plaintiff

or defendant, is not entitled to an award of attorneys’ fees.

Verizon wants us to hold that any time Congress creates

a right that is enforceable against state or local officials

or agencies, section 1983, and its companion, section

1988, come in the door and the American rule goes out

the window. No such purpose can be attributed to

Congress. Section 1988 codifies the Civil Rights Attorney’s

Fees Awards Act of 1976, enacted in recognition that civil

rights suits normally pit individuals, often socially marginal, unpopular, and impecunious, against well-funded

public officers in cases whose social and political significance may dwarf the monetary stakes, which may be meager. These circumstances argue for awarding attorneys’ fees

in such cases, especially to prevailing plaintiffs, and that tilt

has been ratified in the judicial interpretation of section

1983. The Telecommunications Act, in contrast to the federal
10 Nos. 03-1514, 03-1548

civil rights statutes, creates rights in telecommunications

enterprises, which are usually substantial corporations, such

as Verizon. They have the wherewithal to finance their own

litigation without the boost given by fee-shifting statutes,

and it would make no sense to carve an exception for cases

in which they find themselves opposed not by other large

corporations but by small towns, such as Mequon, population 21,000, with a planning commission some of whose

members double as aldermen.

We acknowledge that the well-known “sea clammers”

case, which held that when a federal statute creates a comprehensive scheme of enforcement the courts are not to

supplement it with remedies drawn from other statutes,

Middlesex County Sewerage Authority v. National Sea Clammers

Association, 453 U.S. 1, 20 (1981); see Blessing v. Freestone, 520

U.S. 329, 346-48 (1997); Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 423-29 (1987); Smith

v. Robinson, 468 U.S. 992, 1009-13 (1984), is distinguishable.

It is distinguishable because the Telecommunications Act is

silent on remedies beyond merely conferring a right to sue

to enforce the Act. However, such a conferral is presumed

to entitle a successful plaintiff to the usual remedies,

Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66-76

(1992), which include damages as well as injunctive relief.

Aided by the presumption, the enforcement scheme of the

Telecommunications Act is complete (an entitlement to

attorneys’ fees not being a usual remedy under American

law), and therefore general remedial statutes, such as 42

U.S.C. § 1983, which drags section 1988 in its wake, should

not be fastened, barnacle-like, by judicial Diktat, to this new

federal statute that creates rights overlapped by the existing

remedial statutes. Otherwise when it enacts a new statute

Congress will have difficulty knowing what remedies the

courts will make available to the victims of statutory

violations. If the statute doesn’t specify any remedies, the
Nos. 03-1514, 03-1548 11

courts have to step in and make a guess as to what remedies

will best implement the statutory scheme, but there is no

need for that here. Nextel Partners Inc. v. Kingston Township,

supra, 286 F.3d at 693-96; National Telecommunication Advisors, Inc. v. City of Chicopee, supra, 16 F. Supp. 2d at 121-23;

see also Boulahanis v. Board of Regents, 198 F.3d 633, 639-

41 (7th Cir. 1999); Mattoon v. City of Pittsfield, 980 F.2d 1, 5-6

(1st Cir. 1992).

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-18-03