United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-10491
UNITED STATES CELLULAR CORPORATION,
Plaintiff-Appellant,
versus
CITY OF WICHITA FALLS, TEXAS; WICHITA FALLS CITY COUNCIL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
United States Cellular Corporation, a provider of wireless
telephone services, sued the City of Wichita Falls for denying U.S.
Cellular permission to build a communications tower. U.S. Cellular
contended that the City’s decision was not supported by substantial
evidence in a written record and therefore violated a provision of
the Telecommunications Act of 1996, 47 U.S.C.A. § 332(c)(7)(B)(iii)
(West 2001). The district court granted summary judgment for the
City. Because we agree with the district court that the City’s
determination was supported by substantial evidence, we affirm.
I.
The Telecommunications Act of 1996 balances two competing
concerns. ATC Realty, LLC v. Town of Kingston, N.H., 303 F.3d 91,
94 (1st Cir. 2002). On one hand, Congress found that “siting and
zoning decisions by non-federal units of government[] have created
an inconsistent and, at times, conflicting patchwork of
requirements” for companies seeking to build wireless
communications facilities. H.R. Rep. No. 104-204, at 94 (1995),
reprinted in 1996 U.S.C.C.A.N. 10, 61. On the other hand, Congress
“recognize[d] that there are legitimate State and local concerns
involved in regulating the siting of such facilities.” Id. at 94-
95, reprinted in 1996 U.S.C.C.A.N. at 61. Congress reconciled
these conflicting interests by explicitly preserving the zoning
authority of local governments, see 47 U.S.C.A. § 332(c)(7)(A)
(West 2001), but imposing substantive and procedural limits on the
exercise of that authority, see id. § 332(c)(7)(B). In particular,
the Act requires that a locality’s decision to deny a building
permit be “supported by substantial evidence contained in a written
record.” Id. § 332(c)(7)(B)(iii).
The substantial evidence requirement is the focus of this
suit. In 2001, U.S. Cellular identified a gap in its coverage in
southwest Wichita Falls. To remedy the gap, U.S. Cellular leased
a 45-foot-square parcel of land and planned to build an 85-foot
tower with a 5-foot lightning rod. According to U.S. Cellular, the
tower was extremely unlikely to fall; similar towers had withstood
hurricane- and tornado-force winds.
2
Pursuant to city ordinance, U.S. Cellular applied for a
conditional use permit from the Wichita Falls Planning and Zoning
Commission (“PZC”). See Wichita Falls, Tex., Zoning Ordinance
§ 5910 (2001). The PZC investigated U.S. Cellular’s application,
compared it to the City’s recently passed zoning ordinance for
communications towers,1 and issued a report. The report found that
the proposed tower did not meet several of the guidelines set forth
in the ordinance. First, the ordinance provides that “[a]
communications tower should be setback from rights-of-way and
adjacent properties equivalent to the height of the tower.”
Wichita Falls, Tex., Zoning Ordinance § 5910(A) (2001). The
proposed 90-foot tower would have been set back only 17.5 feet from
the northern property line, only 60 feet from the southern property
line, and only 25 feet from the eastern property line. However,
PZC staff determined that the setbacks would still have been
consistent with the intent of the ordinance because the tower would
have met “minimum wind load requirements” and would have been
compatible with adjacent land uses and zoning districts. Second,
the zoning ordinance provides that towers “shall not be located
closer than 300 feet from [an adjacent] residential use or
residential zoning boundary.” Wichita Falls, Tex., Zoning
Ordinance § 5910(A)(1). The proposed tower would have been set
back only 220 feet from the nearest residence and only 260 feet
1
Neither party has suggested that the City enacted this ordinance to stymie
U.S. Cellular or any other potential builder of communications towers.
3
from the nearest residential zone. Once again, however, the PZC
determined that the setbacks would be sufficient because “[t]he
height of the proposed tower [would] not [have] pose[d] a hazard to
any adjacent residential structure” and because “[b]eing separated
from neighboring residential districts by commercial uses [would
have] insure[d] protection of these areas both from a safety and
aesthetic standpoint.” The PZC ultimately voted 7-1 to approve the
application conditionally but made full approval subject to U.S.
Cellular obtaining a variance from the Airport Board of Adjustment,
which had to determine that a 90-foot tower would not interfere
with the operations of nearby Kickapoo Airpark.2
The Airport Board of Adjustment denied U.S. Cellular’s request
for a variance. To comply with the ruling of the Airport Board,
U.S. Cellular reduced the size of the proposed tower from 90 feet
to 62.8 feet. Although U.S. Cellular had maintained that it
required a 90-foot tower, it did not challenge the Airport Board’s
decision.
Meanwhile, a local resident appealed the PZC’s decision to the
Wichita Falls City Council. See Wichita Falls, Tex., Zoning
Ordinance § 7245 (2001) (providing for appeal). In July 2001, the
Council heard presentations from U.S. Cellular and from Wichita
2
The PZC held a hearing at which several residents of nearby neighborhoods
voiced opposition to the tower. The district court ruled that the transcript of
this hearing was not properly part of the written record before the City Council.
Although U.S. Cellular discusses the hearing in its brief, it has not explicitly
challenged the district court’s exclusion of this transcript.
4
Falls residents opposed to the tower. Much of the Council’s
discussion focused on how the proposed tower, even at its reduced
height of 62.8 feet, failed to meet the setback standards
established in the new zoning ordinance. The Council ultimately
voted 5-0 to revoke3 the permit approved by the PZC. In an
ordinance passed a few weeks after the meeting, the Council listed
its reasons for revoking the permit: “violation[s]” of setback
rules and concerns about the “safety and operations” of nearby
Kickapoo Airpark. Wichita Falls, Tex., Ordinance No. 74-2001 (Aug.
7, 2001).4
U.S. Cellular promptly5 filed suit in federal district court
pursuant to 47 U.S.C. § 332(c)(7)(B)(v), which authorizes suit by
3
In the ordinance overturning the PZC’s approval of U.S. Cellular’s permit,
the Council declared that the permit had been “revoked.” Wichita Falls, Tex.,
Ordinance No. 74-2001 (Aug. 7, 2001). We therefore use the terms “revoke” and
“revocation” to describe the Council’s action. However, in using the terms
“revoke” and “revocation,” we do not mean to imply that the Council’s decision
stripped U.S. Cellular of an established legal entitlement. Although the PZC can
approve or deny permits, a PZC decision is subject to appeal to the City Council.
Wichita Falls, Tex., Zoning Ordinance § 7245 (2001). Thus, although the Council
called its decision a “revocation,” review by the Council is more akin to an
optional final step in the permit application process.
4
The relevant section of the ordinance states that U.S. Cellular’s permit
was revoked because:
1. Proposal violates setback requirements for
adjacent residential uses, as established in Section
5910 of the Zoning Ordinance;
2. Proposal violates setback requirements from
property lines, as established in Section 5910 of the
Zoning Ordinance;
3. Proposal violates setback requirements for
single-family zoning district, as established in Section
5910 of the Zoning Ordinance;
4. Proposal may adversely impact the safety and
operations of Kickapoo Airpark.
Wichita Falls, Tex., Ordinance No. 74-2001 (Aug. 7, 2001).
5
Section 332(c)(7)(B)(v) requires suit within thirty days of the adverse
action. The City Council revoked the permit on July 17, 2001, and issued the
ordinance listing its reasons for revocation on August 7, 2001. U.S. Cellular
filed its original complaint on August 14, 2001.
5
any person “adversely affected” by any “final action” inconsistent
with the procedural or substantive protections of the
Telecommunications Act. The complaint alleged (1) that the City
Council’s decision was not “in writing” as required by
§ 332(c)(7)(B)(iii); (2) that the City Council’s decision was not
“supported by substantial evidence contained in a written record”
as required by § 332(c)(7)(B)(iii); and (3) that the City Council
had “unreasonably discriminate[d]” against U.S. Cellular in
violation of § 332(c)(7)(B)(i)(I). The suit sought an injunction
ordering the City to approve U.S. Cellular’s permit application.
U.S. Cellular moved for summary judgment, but the district court,
finding no genuine issue of material fact, instead granted summary
judgment in favor of the City.6 U.S. Cellular now appeals only one
facet of the district court’s ruling: that the revocation was
supported by substantial evidence contained in a written record.
II.
We review de novo a district court’s ruling on a motion for
summary judgment and use the same legal standard that the district
court used. Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir.
2002). Although other circuits have heard challenges brought under
§ 332(c)(7),7 the construction and application of this provision is
6
The City had not moved for summary judgment, but a district court may grant
summary judgment against a movant even if the non-movant has not filed a cross-
motion. Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 730 (5th Cir.
2003); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir. 1985).
7
E.g., PrimeCo Pers. Communications, Ltd. P’ship v. City of Mequon, 352 F.3d
1147 (7th Cir. 2003); USCOC of Va. RSA #3, Inc. v. Montgomery County Bd. of
Supervisors, 343 F.3d 262 (4th Cir. 2003); U.S. Cellular Tel. of Greater Tulsa
6
an issue of first impression in this Circuit.8
A.
The Telecommunications Act does not define the term
“substantial evidence.” Preferred Sites, LLC v. Troup County, 296
F.3d 1210, 1218 (11th Cir. 2002). However, “substantial evidence”
is a legal term of art, so presumably Congress intended the term to
carry the same meaning it carries in administrative law. See
McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991). The
Act’s legislative history confirms this presumption; the conference
report states that “[t]he phrase ‘substantial evidence contained in
a written record’ is the traditional standard used for judicial
review of agency actions.” H.R. Conf. Rep. No. 104-458, at 208
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 223.
Accordingly, “substantial evidence” is “such reasonable
evidence that a reasonable mind would accept to support a
conclusion.” Poly-America, Inc. v. NLRB, 260 F.3d 465, 476 (5th
Cir. 2001) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951)). A finding of substantial evidence requires “more than
L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122 (10th Cir. 2003); ATC
Realty, 303 F.3d at 94; New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002);
Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1215 (11th Cir. 2002);
Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d 64 (3d Cir. 1999);
Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999).
8
Two district courts in the Fifth Circuit have previously heard challenges
based on the substantial evidence requirement. Sprint Spectrum L.P. v. Parish
of Plaquemines, 2003 WL 193456 (E.D. La. Jan. 28, 2003) (unpublished) (upholding
denial of building permit as supported by substantial evidence); BellSouth
Mobility, Inc. v. Parish of Plaquemines, 40 F. Supp. 2d 372 (E.D. La. 1999)
(same).
7
a mere scintilla and less than a preponderance.” Masterson v.
Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). The reviewing court
“must take into account contradictory evidence in the record” Am.
Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981).
However, the reviewing court may not “re-weigh the evidence or
substitute [its] judgment” for the judgment of the local
government. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
Substantial evidence review is therefore “highly deferential.”
VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818,
830 (7th Cir. 2003) (quoting Second Generation Props., L.P. v. Town
of Pelham, 313 F.3d 620, 627 (1st Cir.2002)). The plaintiff
carries the burden of proving that no substantial evidence supports
the local government’s decision. VoiceStream, 342 F.3d 818, 830-31
& n.5; Am. Tower LP v. City of Huntsville, 295 F.3d 1203, 1207
(11th Cir. 2002); S.W. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51,
63 (1st Cir. 2001).
In the context of the Telecommunications Act, the substantial
evidence standard limits the types of reasons that a zoning
authority may use to justify its decision. First, “generalized
concerns” about aesthetics or property values do not constitute
substantial evidence. PrimeCo Pers. Communications, Ltd. P’ship v.
City of Mequon, 352 F.3d 1147, 1150 (7th Cir. 2003); Preferred
Sites, 296 F.3d at 1219-1220; Omnipoint Corp. v. Zoning Hearing
8
Bd., 181 F.3d 403, 409 (3d Cir. 1999).
Second, because the Telecommunications Act “is centrally
directed at whether the local zoning authority’s decision is
consistent with the applicable zoning requirements,” ATC Realty,
303 F.3d at 94 (quoting Omnipoint Communications MB Operations v.
Lincoln, 107 F. Supp. 2d 108, 115 (D. Mass. 2000)), courts have
consistently required that the challenged decision accord with
applicable local zoning law. See, e.g., id.; Am. Tower, 295 F.3d
at 1208; Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d
64, 72 (3d Cir. 1999); Cellular Tel. Co. v. Town of Oyster Bay, 166
F.3d 490, 495 (2d Cir. 1999).
In sum, we must determine whether the City had some reasonable
evidence, beyond mere generalized concerns, to support the reasons
it gave for applying its zoning standards the way it did.
B.
With this standard in mind, we turn to the reasons given by
the City for revoking U.S. Cellular’s permit. The first reason
given by the City was that U.S. Cellular’s tower plan failed to
conform to the setbacks listed in section 5910(A) of the Wichita
Falls Zoning Ordinance. That ordinance provides:
A. A communications tower should be setback
from rights-of-way and adjacent
properties equivalent to the height of
the tower. Consideration toward reducing
the setback may require specifications as
to the engineered “fall” characteristics
of a tower and the nature of neighboring
land uses. The following may be
9
considered minimum setback requirements:
1. For ground-mounted proposals where
the allowed zoning district is
adjacent to a residentially-zoned
district or residential use, such
tower shall not be located closer
than 300 feet from the residential
use or residential zoning boundary
. . . .
Wichita Falls, Tex., Zoning Ordinance § 5910(A) (2001).
Substantial evidence supports the City’s conclusion that the
proposed tower would not conform to these requirements. The
written zoning report submitted to and considered by the Council
showed that U.S. Cellular’s proposal would have required the City
to reduce nearly every guideline listed in the ordinance. The
proposed tower would have stood less than 62.8 feet from three of
four property lines, less than 300 feet from the nearest
residential use, and less than 300 feet from the boundary of the
nearest residential zone. Furthermore, some of the reductions
sought by U.S. Cellular would have been considerable; the tower
would have stood only 17.5 feet from one property line and only 25
feet from another. Thus, the evidence before the City Council
showed that the proposed tower seriously failed to conform to the
setbacks listed in section 5910(A).9 This failure to conform to
the setbacks listed in the ordinance constitutes substantial
evidence sufficient to justify the City’s revocation of U.S.
9
The parties do not dispute that this evidence of nonconformity was part of
a written record, namely, the PZC’s written report. Therefore, we need not
define the precise scope of “written record” under § 332(c)(7)(B)(iii) and
decline to do so.
10
Cellular’s permit. Cf. USCOC of Va. RSA #3, Inc. v. Montgomery
County Bd. of Supervisors, 343 F.3d 262, 271 (4th Cir. 2003)
(“[T]he proposed tower’s inconsistency with local zoning
requirements is sufficient to establish substantial evidence for
the denial of the permit.”).
U.S. Cellular concedes that its tower proposal would not meet
these setback guidelines but argues that section 5910(A) entitles
it to a reduction in the setbacks. According to U.S. Cellular,
section 5910(A) establishes two relevant criteria that the City
Council must consider when deciding whether to reduce the setbacks:
(1) “the engineered ‘fall’ characteristics of the tower” and (2)
“the nature of neighboring land uses.” U.S. Cellular claims the
City failed to consider these criteria and argues that the Council
treated the setback guidelines as mandatory rather than permissive.
Because all the evidence on the two relevant criteria supported
reducing the setbacks, U.S. Cellular argues, the City’s reliance on
the setback guidelines was not supported by substantial evidence.
U.S. Cellular has misread the ordinance. Section 5910(A) is
framed in permissive terms and does not require the Council to
accord decisive weight to the two criteria identified as relevant
by U.S. Cellular. Section 5910(A) does not say that the Council
shall or must consider fall characteristics and neighboring land
uses, but that “[c]onsideration toward reducing the setback may
require” information on those two criteria. Wichita Falls, Tex.,
11
Zoning Ordinance § 5910(A) (2001) (emphasis added). This phrase
means that the Council may require a permit applicant to submit
information on these two criteria, not that the Council is limited
to considering these two criteria alone when deciding whether to
allow a permit that does not conform to the setback guidelines.
Nothing in section 5910(A) bars the Council from considering other
evidence, including the degree to which the proposal deviates from
setback guidelines. And nothing in section 5910(A) compels the
Council to weigh evidence in favor of reducing setbacks in a
particular manner. Rather, the ordinance allows the Council
discretion to decide whether it will grant reductions depending on
the particular circumstances of each case.10
The Council’s exercise of discretion was in accord with both
the ordinance and the evidence before it. The transcript of the
Council meeting belies U.S. Cellular’s assertion that the Council
considered the guidelines set forth in section 5910 mandatory or
acted as if those guidelines were mandatory. Some council members
expressed disappointment that the setbacks were not mandatory,
probably because hard-and-fast rules would have made their decision
10
The permissive language of section 5910(A) stands in stark contrast to the
mandatory language of the zoning ordinance at issue in New Par v. City of
Saginaw, 301 F.3d 390 (6th Cir. 2002), a case on which U.S. Cellular heavily
relies. In New Par, a wireless provider successfully challenged a city’s refusal
to grant a permit as not in accord with the city’s zoning ordinance. In New Par,
however, the zoning ordinance at issue explicitly directed the City of Saginaw
to consider certain criteria in deciding whether to grant a variance. See New
Par, 301 F.3d 390 (quoting Saginaw, Mich., Zoning Code §§ 2712, 2714 (2002)).
In contrast, Wichita Falls’ ordinance is permissive and does not require that the
Council consider a list of factors or give those factors any particular weight
in its ultimate decision.
12
easier.11 But the transcript of the Council meeting shows that
members also explicitly recognized their discretion to grant a
permit even if that permit would require departures from the
setback guidelines.12
Nor did the Council disregard the evidence before it. The
transcript of the Council’s meeting shows that the Council
considered a number of factors and determined, based on the
evidence, that U.S. Cellular’s application did not present a
convincing case for departure from the setback guidelines.13 Most
important to the Council’s determination was the degree of
departure from those guidelines, especially given the fact that
U.S. Cellular was the first applicant to seek a reduction in the
setbacks.14 Even if all the evidence on fall characteristics and
neighboring land uses had favored U.S. Cellular, the Council could-
-and did--determine that this evidence did not justify such a
11
For instance, Mayor Jerry Lueck stated: “I think the ordinance that was
passed was just too vague. I think we should have said it’s going to be this
way, or it’s going to be that way.”
12
For instance, Councilor Harold Hawkins stated that section 5910 gave the
Council “latitude.” Councilor Johnny Burns stated that section 5910 gave the
Council “flexibility.”
13
Because section 5910(A) is permissive rather than mandatory, the Council
need not have explicitly considered the tower’s fall characteristics or
neighboring land uses. Even so, the record on appeal belies U.S. Cellular’s
contention that the Council utterly failed to consider fall characteristics and
neighboring uses. The PZC report and U.S. Cellular’s own materials, both of
which the Council had before it, described the tower’s fall characteristics and
the effect (or lack thereof) of the tower on neighboring land uses. Nothing in
the record indicates that the Council dismissed this evidence out of hand.
Rather, Councilor Johnny Burns noted that “even if the fall characteristics are
35 feet [as was evidently predicted], you’re still going to fall on two adjacent
properties.” The transcript also shows that the Council did discuss neighboring
land uses, especially nearby neighborhoods.
14
Councilor Johnny Burns summarized the problem thus: “We wanted a little
wiggle room. To me, I don’t know that . . . we’re using wiggle room here. To
me, we’re using dance floor room.”
13
serious departure from the setback guidelines.15
U.S. Cellular seizes on a number of inexact statements by
councilors and tower opponents. Many of the comments made at the
Council meeting were not strictly germane to the issue before the
Council, and the ordinance revoking the permit stated that the
proposal “violates setback requirements” rather than stating more
precisely that “the City Council chose not to grant a waiver of the
general setback requirements.” However, the council members and
their constituents are not technocrats, and substantial evidence
review does not require that the arguments and determinations be
stated with exacting precision so long as the ultimate conclusion
is undergirded by reasonable evidence.16
Ultimately, we need not determine whether the Council’s
decision was unwise. Under substantial evidence review, the City
need not even demonstrate that a preponderance of the evidence
15
The PZC’s determination, on which U.S. Cellular heavily relies, is not
controlling. Like the Council, the PZC weighed evidence in favor of reducing the
setbacks against the policies embodied in the setbacks. That the PZC weighed the
evidence differently is immaterial, as the Council has ultimate authority to
weigh risks and to revoke zoning permits. See Wichita Falls, Tex., Zoning
Ordinance § 7245 (2001).
16
In making this point, we do not intend to take sides in a debate over how
to characterize zoning authorities and how that characterization affects the
definition of “substantial evidence.” The Fourth Circuit, in recognition of the
legislative nature of most local governments, interprets “substantial evidence”
as requiring reasonable evidence that a reasonable legislator would accept to
support a conclusion. See USOC, 343 F.3d at 271; 360/ Communications Co. v. Bd.
of Supervisors, 211 F.3d 79, 83 (4th Cir. 2000). In contrast, the Third and
Seventh Circuits have emphasized the administrative role that local governments
play and therefore treat zoning decisions just as they would treat decisions of
federal administrative agencies. See Omnipoint Corp., 181 F.3d at 408-09;
Aegerter v. City of Delafield, Wis., 174 F.3d 886, 889 (7th Cir. 1999). Because
we believe that the Council had substantial evidence for its determination under
either the “reasonable legislator” standard or the “reasonable administrator”
standard, we need not decide between those alternatives.
14
supported its decision; rather, the City need only demonstrate that
the Council had some reasonable evidence to support the conclusion
that the proposal did not conform to setback requirements and that
no reduction was warranted. As a federal court, we may not “re-
weigh the evidence.” Boyd, 239 F.3d at 704.17
C.
The City also claims that it has substantial evidence for its
conclusion that the proposed tower would threaten the safety and
operations of Kickapoo Airpark. The district court determined that
the City lacked evidence for this conclusion. We need not review
the district court’s decision on this point and decline to do so.
If the City had substantial evidence for its other reasons, the
fact that it lacked substantial evidence for its concerns about
airport safety does not matter; the Telecommunications Act requires
only that the adverse action be supported by substantial evidence,
not that each individual reason for the adverse action be supported
by substantial evidence. See 47 U.S.C. § 332(c)(7)(B)(iii).
III.
17
U.S. Cellular urges us to consider a possible national security interest
in a robust wireless communications network. U.S. Cellular should direct this
argument to Congress, not to the federal courts. Congress has chosen substantial
evidence as the standard for reviewing local zoning decisions, and we must abide
by that choice.
U.S. Cellular also complains that it has expended resources in preparing
to use its chosen site. But U.S. Cellular assumed the risk that its permit would
be denied by choosing a plot of land so small that the City would have had to
depart significantly from its setback guidelines to accommodate the tower.
Regardless, as the Tenth Circuit has observed, the Telecommunications Act does
not permit us to assess the equities of a given situation; under the requirements
set by Congress, “so long as the municipality’s decision is grounded in local law
and supported by substantial evidence, 47 U.S.C. § 332(c)(7)(B)(iii) is
satisfied.” City of Broken Arrow, 340 F.3d at 1136-37 (10th Cir. 2003).
15
The City’s revocation of U.S. Cellular’s permit was supported
by substantial evidence in a written record. We therefore AFFIRM
the district court’s grant of summary judgment to the City.
16