Evidence you must have

Yes, Master Yoda. Without evidence on the record, administrative decision-makers face the embarrassment of reversal by a reviewing court. Dean Patty Salkin (Albany), on her Law of the Land blog, describes a Massachusetts wireless antenna case where the town failed to substantiate its decision in "Denial of Permit for Antenna on Extension to Smokestack Already Housing Two Antennas Violates Telecommunications Act". Five years earlier, the town had approved two antennas on an existing smokestack. When a competitor sought to add a third antenna, the town denied the needed permit and approval, expressing concern about their appearance.

The court held that the denial unreasonably discriminated among functionally equivalent providers and was not supported by substantial evidence, in violation of the Telecommunications Act, 47 U.S.C. § 332(c). While the proposed antenna would be slightly higher than the existing antennas, the board did not discuss the significance of the difference. Even applying the waiver requirement would amount to different treatment, to the disadvantage of a provider of equivalent services. While a negative aesthetic impact can be a sufficient basis for denial, aesthetic judgments must be based on specifics; the record included only conclusory statements of disapproval without explanation of how the addition would make the existing situation worse. The board rejected the company’s evidence without having any competing evidence on which to base its decision.

EMM