Mark J. Abrams is a Federal Communications Commission-licensed amateur radio operator. He also provides commercial mobile radio services (known as personal wireless services) for local businesses.

In 1989, the city where he lives issued Abrams a permit to construct a 50-foot antenna on his residential property for his amateur use. But 10 years later, the city learned about Abrams’ commercial use, which was not authorized by his antenna permit.

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The city obtained a court injunction preventing Abrams from using his home antenna for commercial purposes until he obtained a special city permit. However, when he applied for the permit, the city denied it.

Abrams then filed this lawsuit, claiming the city violated his rights under the federal Telecommunications Act of 1996 (TCA). The court agreed with Abrams, ruling the city did not have a valid reason to deny his special-use permit. The court ordered the city to issue the permit to Abrams.

But Abrams then insisted he be paid monetary damages for his attorney fees and costs since he prevailed against the city in his lawsuit to obtain the special permit.

If you were the judge would you order the city to pay Abrams for his attorney fees and other costs necessary to obtain his special permit?

The judge said yes!

The court has already ruled the city violated Abrams’ legal rights to also use his amateur antenna for commercial purposes, the judge explained. To obtain his legal rights granted by the TCA, the judge continued, Abrams incurred substantial attorney fees and other costs.

Although the federal TCA does not contain any comprehensive remedial scheme to enforce the rights of citizens to maintain radio antennas, there is no evidence Congress intended to forbid monetary remedies for TCA violations, the judge emphasized.

Because the TCA does not prohibit the award of attorney fees and costs to a prevailing party in a lawsuit to enforce rights granted under the TCA, Abrams is entitled to receive his attorney fees and costs from the city in his successful lawsuit, the judge ruled.

Based on the 2004 U.S. Court of Appeals decision in Abrams v. City of Rancho Palos Verdes, 354 Fed.3d 1094.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

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