United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY, COLORADO, Plaintiff,
CROWN CASTLE USA, INC. and T-MOBILE WEST LLC, Defendants.
REPORT AND RECOMMENDATION ON
PLAINTIFF/COUNTER-DEFENDANT'S RULE 12(b)(6) MOTION TO
DISMISS COUNT TWO OF DEFENDANTS/COUNTER-PLAINTIFFS'
COUNTERCLAIM (DKT. #30)
Reid Neureiter, United States Magistrate Judge.
before the Court is Plaintiff/Counter-Defendant the Board of
County Commissioners for Douglas County's
(“Plaintiff” or “Douglas County”)
Motion to Dismiss Count Two of the First Amended
Counterclaim. (Dkt. #30.) Judge Moore referred the Motion to
Dismiss via an order of reference on January 2, 2018.
Counterclaim Count Two is a claim for damages and attorneys
fees against Douglas County under 42 U.S.C. §1983.
Court has carefully considered the motion (Dkt. #30),
Defendants/Counter-Plaintiffs Crown Castle USA, Inc.
(“Crown Castle”) and T-Mobile West LLC's
(“T-Mobile” and collectively with Crown Castle,
“Defendants” or “Company Defendants”)
response (Dkt. #35), and Plaintiff's reply. (Dkt. #40.)
The Court has taken judicial notice of the Court's file
and has considered the applicable Federal Rules of Civil
Procedure and case law. The Court recommends that the Motion
case involves an effort by a wireless telephone provider
(T-Mobile) and a wireless facilities infrastructure company
(Crown Castle) to make modifications to an existing cellular
telephone antenna installation in Douglas County, Colorado.
Generally, there is a tension between the desire of cellular
or wireless telephone companies to make bigger antennas and
larger facilities to expand networks to improve cellular
telephone coverage, and local governments' desire to
maintain zoning, historic, or esthetic restrictions on the
size or design of wireless antennae tower installations.
Congress has passed legislation, and the Federal
Communications Commission (“F.C.C.”) has issued
regulations, seeking to provide expedited mechanisms for the
resolution of these competing interests. This case is
reflective of the tension that exists between local zoning
authorities and cellular providers, and involves application
of the federal legislation and regulations intended to
address that tension.
County initiated this action for declaratory relief on
December 29, 2017. According to the Complaint (Dkt. #1), on
May 18, 2017, the Company Defendants submitted an Eligible
Facilities Request (“EFR”) application (the
“Application”) “to collocate and modify
wireless facilities on an existing support structure in
Douglas County.” (Id. ¶ 2.) The
pre-existing structure allegedly had been designed with
“stealth” features to look like a standard
Douglas County utility pole, rather than an obvious cellular
tower. Douglas County says it denied the Application on June
29, 2017, because the proposed modifications defeated the
“concealment elements” of the structure, as they
would more than double the width of the top ten or eleven
feet of the existing structure. (Id. ¶¶ 2,
4.) According to Douglas County, with the proposed
modifications, rather than looking like a utility pole, the
revised structure would look like a giant marshmallow on a
stick. (Id. ¶ 58.) Douglas County claims its
determination was made within the period required by F.C.C.
regulations - what the Company Defendants call the
“shot-clock.” (Id. ¶ 3.)
County alleges that rather than challenging the adverse
determination in court, as it was entitled to do, on October
24, 2017, T-Mobile “unilaterally declared the federal
60-day shot clock to have restarted, notwithstanding the fact
that the County had denied the application months
earlier.” (Id. ¶ 7.) Then, when Douglas
County did not make any further decision, T-Mobile declared
that the “Eligible Facilities Request was now deemed
granted” pursuant to regulations that allow a request
to a local authority to be deemed “granted” if a
definitive decision on an application is not made within the
60-day “shot-clock” period. (Id. ¶
Douglas County's lawsuit requests a declaration that the
Company Defendants' assertion of a “deemed
granted” remedy is void, and that Company Defendants
waived any challenge to the County's June 29, 2017,
determination by failing to timely seek relief.
Alternatively, even if the Company Defendants' May 18,
2017 application was still pending after Douglas County
issued its June 29, 2017 determination, Douglas County seeks
a ruling that the Company Defendants' request did not
qualify for approval as an EFR, and therefore is not subject
to a “deemed granted” remedy. (Id.
Company Defendants answered the Complaint and, not
surprisingly, filed counterclaims. See Dkt. #28
(Answer and First Amended Counterclaims). The Company
Defendants contend that Douglas County, in an effort to evade
judicial review, never actually denied the Application.
(Id. at 13, ¶ 2.) The Company Defendants allege
that, instead, on June 29, 2017, Douglas County returned what
it characterized as a “Pre-submittal Review, ”
which contained staff comments on the Application and
requested additional materials. (Id. at 19-20,
¶¶ 46, 49.) The Company Defendants argue that
Douglas County's response, because it requested more
information, tolled the “shot-clock”-the limited
time within which Douglas County had to issue a decision.
(Id. at 20, ¶ 51.)
agrees that on October 24, 2017, it sent a letter to
Plaintiff “explaining that, under federal law, the
Application does not substantially change the existing tower,
” and declaring that submission of this additional
information (the October 24 letter) restarted the
“shot-clock.” (Id. ¶¶ 55-56.)
Under the Company Defendants' formulation, the restarted
“shot-clock” expired on November 18, 2017. And
so, on December 1, 2017, without any new decision by Douglas
County approving or denying the application, the Company
Defendants sent Douglas County a letter notifying it that the
Application was deemed granted by operation of law, and
stating they intended to commence construction. (Id.
at 21, ¶¶ 60-61.)
One of the Company Defendants' counterclaims alleges that
Douglas County violated 47 U.S.C. § 1455 (and its
associated regulation) by denying and failing to approve an
EFR for a modification of an existing wireless tower that
does not substantially change the physical dimensions of such
tower or base station. According to the Company Defendants,
Douglas County's failure to approve the Application
violates federal law, and therefore should be deemed granted.
Company Defendants' Counterclaim Two alleges that Section
6409(a) of the Middle Class Tax Relief and Job Creation Act
of 2012, codified at 47 U.S.C. § 1455, also known as the
“Spectrum Act, ” creates a federal right because
it requires State and local governments to approve a wireless
carrier's valid EFR application. According to the Company
Defendants, by failing to approve the Application, Douglas
County has deprived the Company Defendants of a right,
privilege, or immunity secured by the Constitution and laws
of the United States (specifically the Spectrum Act), in
violation of 42 U.S.C. § 1983.
reason for inclusion of the § 1983 claim is that if the
Company Defendants ultimately prevail and their Application
is deemed granted, the Company Defendants would be entitled
to damages and, in the court's discretion, an award of
attorneys' fees and costs. See 42 U.S.C. §
1988(b) (in any action to enforce a provision of 42 U.S.C.
§1983 “the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs . . ..”). An
award of damages and attorneys' fees against a
municipality or local government carries significant negative
financial consequences. It is a big potential hammer to use
against a local zoning authority assessing an EFR.
County now seeks to dismiss Counterclaim Count Two -- the
§ 1983 claim -- for failing to state a claim for relief.
In very simple terms, Douglas County argues that § 1983
and its potential for a damages award and an award of
attorneys' fees does not apply to an allegedly erroneous
denial of an EFR. The Court agrees and recommends that the
Company Defendants' Counterclaim Count Two be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (citations and quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. Southern Disposal, Inc., v.
Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
Moreover, “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (citation omitted).
instance, the plausibility of the factual allegations is not
an issue because Douglas County's Motion to Dismiss
raises a pure legal question: may a wireless facility company
enforce an alleged violation of the Spectrum Act ...