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Board of County Commissioners for Douglas County v. Crown Castle USA, Inc.

United States District Court, D. Colorado

December 18, 2018



          N. Reid Neureiter, United States Magistrate Judge.

         Now 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.

         The 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 be GRANTED.

         1. BACKGROUND

         This 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.

         Douglas 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.)[1] 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.)

         Douglas 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. ¶ 8.)

         In sum, 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. ¶ 9.)

         The 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.)

         T-Mobile 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.)

         Count 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.

         The 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.

         The 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.

         Douglas 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 dismissed.[2]

         2. LEGAL STANDARD

         Federal 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).

         “A 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.

         However, 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).

         In this 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 ...

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