Telespectrum v. Public Service Commission

Decision Date23 June 2000
Docket Number99-5919,99-5871,Nos. 99-5822,s. 99-5822
Citation227 F.3d 414
Parties(6th Cir. 2000) Telespectrum, Inc., Plaintiff-Appellee, v. Public Service Commission of Kentucky; Brenda J. Helton, in her official capacity as Chairman and Commisioner of the Public Service of Kentucky; Edward J. Holmes, in his official capacity as Vice-Chairman and Commissioner of the Public Service Commission of Kentucky; Gary W. Gillis, in his official capacity as Commissioner of the Public Service Commission of Kentucky 99-5822); Donald R. Chambers; Connie Chambers (99-5871/5919), Defendants-Appellants. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. Nos. 98-00062--Joseph M. Hood, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Mark R. Overstreet, STITES & HARBISON, Frankfort, Kentucky, for Appellee.

Amy E. Dougherty, Deborah T. Eversole, PUBLIC SERVICE COMMISSION, OFFICE OF GENERAL COUNSEL, Frankfort, Kentucky, for Appellants.

George C. Howell, Hall, Howell, & Sergent, Ashland, Kentucky, for Defendants-Appellants in 99-5871, 99-5919

Before: SILER and CLAY, Circuit Judges; STAFFORD, District Judge.*


CLAY, Circuit Judge.

Defendants Commissioner Brenda J. Helton, Commissioner Edward J. Holmes, and Commissioner Gary W. Gillis of the Public Service Commission of Kentucky appeal the orders of the United States District Court for the Eastern District of Kentucky granting summary judgment for Plaintiff Telespectrum, Inc., in its action for injunctive relief to permit construction of a cellular communications tower. For the following reasons, we AFFIRM.


On September 25, 1997, Telespectrum applied to the Public Service Commission of Kentucky ("PSC") for a Certificate of Public Convenience and Necessity to construct a 199 foot tall wireless telecommunications tower in Carter County, Kentucky. The proposed site for the tower ("the Globe site") is in a rural area not subject to local zoning or other land use requirements. The site is heavily wooded, though the predominant land use along both sides of the adjacent road is agricultural. The only existing development on the south side of the road consists of four single family residences, all located more than one thousand feet from the site. Within one thousand feet of the site are the remains of a burned-out single family residence, a yard containing ten to twelve automobiles in varying states of disrepair, a home built around a manufactured house and surrounded by tires and debris, and the single family ranch home of Mr. and Mrs. Donald Chambers. The Chambers' home is below the grade of the road and approximately 412 feet from the proposed site for the tower.

Telespectrum identified the Globe site from field measurements and a computer modeling program. Using measurements of signal strength, a search firm determined seven possible locations within the area which could provide adequate cellular coverage to the community. Telespectrum states that it identified seven possible sites but later discarded four of them because they were unavailable. Telespectrum determined, based on further modeling, investigation and geographic information, that two of the remaining three sites would not be appropriate. In contrast, Telespectrum's investigation into the Globe site concluded that a tower at this location would provide the best signal quality and coverage for the area which was otherwise without wireless communications. Telespectrum arranged to lease the Globe site from the landowners, Donald and Mary Bond.

As part of the PSC application process, Telespectrum received permits from the Federal Aviation Administration and the Kentucky Airport Zoning Commission to build at the Globe Site. Additionally, Telespectrum included with its application a geotechnical report, a Phase 1 archeological survey, a land survey, a site plan, and plans and engineering calculations for the tower and its foundations.

On October 7, 1997, Mr. and Mrs. Donald Chambers informed PSC that they objected to the construction of the Globe Site, basing their complaint on "health dangers from being exposed to microwaves emitted from the tower," and "decrease in our property value." (J. A. 192). PSC granted the Chambers full intervention into the application process.

On March 7, 1998, the Mayor of Olive Hill wrote to oppose the application based on the city's recent acquisition of land in the area for preservation purposes. His letter did not identify with particularity the location of the city's parcel, nor did the Mayor choose to intervene or to speak in opposition to the application at the hearing; the letter was not introduced into evidence at the hearing.

On April 2, 1998, PSC conducted a public hearing on Telespectrum's application. Telespectrum presented testimony by a real estate specialist and an engineer, who spoke about the need for a cellular site in the area, the process by which the Globe site was located, and stated that based on their investigations and experience in siting more than 300 other towers each, there were no other sites available to provide the required coverage. Telespectrum also introduced a Map Data Information Sheet prepared by the Kentucky State Nature Preserves Commission which demonstrated that the town of Olive Hill's parcel was located on the opposite side of Olive Hill from the Globe site, several miles away. Donald Chambers was the sole witness to testify in opposition to the application, stating his personal belief that the electromagnetic emissions from the towers might have adverse health effects and that the value of his home would diminish if the tower was built on the Globe site. Chambers also testified that he believed the tower could be located at four sites other than the Globe site, showing photographs he had taken from his car as evidence. Chambers did not introduce any other support for this statement.

In response, Telespectrum introduced testimony from a licensed appraiser who stated that after investigating the Globe site and surrounding environs, and in concert with a study on the effect towers had on surrounding property at five comparable locations, he had concluded that the presence of the tower would not affect the market value of the Chambers' home. Telespectrum also introduced the affidavit of another engineer who stated that exposure to the emissions from the tower would not be harmful.

The Commissioners entered their order denying Telespectrum's application on June 25, 1998. The order stated:

At the hearing, Mr. Chambers raised objections to the tower being located adjacent to his property and home. Mr. Chambers further produced multiple possible tower sites on the Lessor's property. The Commission is aware that cell site construction is exempt from local zoning ordinances. Therefore, in considering the public interest with regard to certificates of Public Convenience and Necessity, it cannot decline to be cognizant of and sensitive to the concerns of residents and landowners whose property is affected.

The Commission, having considered the evidence of record and balancing the interests of the applicant against the interest of the intervenor, finds that the public convenience and necessity is not served by granting this certificate.

IT IS THEREFORE ORDERED that Telespectrum should continue this case and seek other locations for the Globe site.

(J. A. 205-06)

Telespectrum filed an action in the United States District Court for the Eastern District of Kentucky, requesting mandamus or in the alternative, declaratory or injunctive relief, against the Public Service Commission of Kentucky, and Donald and Connie Chambers, intervenors in the underlying PSC proceeding. PSC moved for dismissal, arguing that the court lacked subject matter jurisdiction because the June 25, 1998, order of PSC was not final pursuant to 47 U.S.C. § 332(c)(7)(B), and claiming Eleventh Amendment immunity as an arm of the state. Telespectrum moved to amend its complaint to name the three members of PSC, Brenda J. Helton, Edward J. Holmes and Gary W. Gillis ("Commissioners"), as additional defendants. The district court granted Telespectrum's motion, and also granted PSC's motion to dismiss in part, finding that the Eleventh Amendment barred action against PSC, but permitted action against the Commissioners.

The district court granted summary judgment to Telespectrum, reversing PSC's original order and ordering PSC to issue Telespectrum a Certificate of Public Convenience and Necessity. See Telespectrum, Inc. v. Public Service Com'n of Kentucky, 43 F.Supp.2d 755 (E.D.Ky. 1999). Commissioners filed a motion to alter or amend the judgment which was denied and they appealed to this Court.


This Court reviews the grant of summary judgment de novo. See Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999). Summary judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This Court affirms summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under the doctrine of Ex parte Young, 209 U.S. 123, 159-60 (1908), suits against state officials seeking equitable relief for ongoing violations of federal law are not barred by the Eleventh Amendment. See Michigan Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862 (6th Cir. 2000). The Supreme Court has underscored the importance of the Ex parte Young doctrine, stating it is an "essential part" of Eleventh Amendment...

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