United States District Court, D. Colorado
Board of County Commissioners for Douglas County Colorado, Plaintiffs-Counterclaim Defendant,
v.
Crown Castle USA, Inc., and T-Mobile West LLC, Defendants-Counterclaim Plaintiffs.
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
This
case involves efforts by a wireless telephone provider
(T-Mobile) and a 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 wireless telephone
companies' desire to expand coverage and local
governments' will to maintain zoning, historic, and
aesthetic standards. Congress has passed legislation, and the
Federal Communications Commission (“FCC”) has
issued regulations, providing mechanisms for the resolution
of these competing interests. This dispute zeroes on whether
or not the County properly denied Defendants' antenna
modification application and the legal effect of
communications (and silence) between them. Briefing on
Defendants' objections to the recommendation (ECF No. 86)
on the parties' cross-motions for summary judgment is
incomplete. At present, the Court is concerned only with
whether Defendants' 42 U.S.C. § 1983 Amended
Counterclaim survives the County's motion to dismiss.
I.
BACKGROUND
After
the County initiated this action seeking declaratory relief,
Defendants filed three amended counterclaims (ECF No. 28, at
13-30), from which the Court takes the following material
allegations to be true for the purposes of the County's
present motion to dismiss. (Motion, ECF No. 30.)
A.
Counterclaim Allegations
T-Mobile
provides telecommunications, commercial mobile radio, and
personal and advanced wireless services to businesses and the
general public. (Am. Countercl. ¶¶ 16, 19.) Crown
Castle owns, operates, and maintains an infrastructure
network, upon which its customers, like T-Mobile, have
situated facilities that provide these wireless services.
(Id. ¶ 14.) A wireless facility serves a
particular geographic area and normally consists of several
antennas, which may be attached to a tower, monopole, or
other structure in public right-of-way or private utility
easements, along with ancillary equipment necessary for the
operation of that facility. (Id. at 20-21.) T-Mobile
must periodically upgrade and modify its existing facilities,
including through adding capacity, using new technologies,
and adding new spectrum bands as authorized by the FCC.
(Id. at 23.)
Federal
law permits, but limits, a local government's control
over modifications to wireless facilities, including its
ability to deny applications to construct those
modifications. See 47 U.S.C. § 1455
(“Spectrum Act”); see also 47 U.S.C.
§ 332. “[A] State or local government may not
deny, and shall approve, any eligible facilities request
[(“EFR”)] for a modification of an existing
wireless tower or base station that does not substantially
change the physical dimensions of such tower or base
station.” 47 U.S.C. § 1455(a)(1). FCC regulations
require a local government to approve EFR applications within
60 days of their submission (“shot clock”). 47
C.F.R. § 1.6100(c)(2).[1] The 60-day period may only be
tolled by mutual agreement between the local government and
applicant or if the local government determines that the
application is incomplete. 47 C.F.R. § 1.6100(c)(3). If
an application is incomplete, the local government must
provide written notice of that circumstance, including what
information is missing, within 30 days of the application
submission. 47 C.F.R. § 1.6100(c)(3)(i). When the
applicant submits supplemental information, the shot clock
resumes running, and the local government has 10 days to
notify the applicant of any further deficiencies. 47 C.F.R.
§ 1.6100(c)(3)(ii)-(iii). If a local government fails to
timely approve or deny an EFR, “the [EFR] shall be
deemed granted. The deemed grant does not become effective
until the applicant notifies the applicable reviewing
authority in writing after the review period has expired
(accounting for any tolling).” 47 C.F.R. §
1.6100(c)(4). Applicants subject to adverse decisions by
local governments may bring claims related to this process in
any court of competent jurisdiction within 30 days of such
decision. 47 U.S.C. § 332(c)(7)(B)(5); 47 C.F.R. §
1.6100(c)(5).
The
County provides a form for submitting EFRs. (Am. Countercl.
¶ 32.) On April 27, 2017, Crown Castle, on behalf of
T-Mobile, submitted an EFR application to the County to
modify a communications tower located at 4545 E. Highway 86,
Castle Rock, CO, 80104 (“Application”).
(Id. ¶ 25.) That tower uses concealment panels
to hide the antennas and associated equipment from view,
reducing the visual impact of the tower, and the Application
proposed to modify the tower by replacing and adding
facilities that would grow the concealment shroud from 18
inches to 38 inches wide and from 10 feet to 11 feet
high-increasing the height of the tower from 35 feet to 36
feet. (Id. ¶¶ 26-27.) Following the
modification, the communications tower would still use
concealment panels to hide the antennas and associated
equipment from view, and no antennas or associated equipment
would be visible following the modification. (Id.
¶¶ 30-31.) The Application-which expressly noted
that it was an EFR as recognized by federal law and was not
merely for pre-submittal review-included a cover letter,
project narrative, photo simulation, preliminary drawings,
structural analysis, an application fee, and letters of
authorization from the tower and land owners. (Id.
¶¶ 33, 36-37.) The Application further explained
why Defendants believed the modification satisfied the
federal EFR requirements. (Id. ¶ 38.) On May 4,
2017, a planning technician with the County Department of
Community Development (“Department”) confirmed
that he received the EFR Application and sent Crown Castle a
site-improvement plan to redline and return. (Id.
¶¶ 40-41.)[2] On May 18, 2017, Crown Castle returned a
redlined site improvement plan to Douglas County.
(Id. ¶ 43.) Although it had submitted a
complete application earlier, Defendants agreed to treat the
60-day shot clock as beginning on May 18, 2017, when the
redlined site improvement plan was returned. (Id.
¶ 44.)
On June
22, 2017, Defendants met with staff from the County to
discuss the Application. (Id. ¶ 45.) On June
29, 2017, the County sent Defendants a document with the
heading “Presubmittal Review” containing comments
on the Application.[3] (Id. ¶ 46.) The County
specified that its “design standards for personal
wireless communication facilities do not support a 38
[inches] canister or pole diameter for this site, ”
because “[a]n expansion to 38 [inches] no longer
provides a stealth design” and that the “original
cell site was approved and constructed as a stealth utility
pole.” (Id. ¶ 47.) The County suggested
that “[s]ince the proposed design does not meet the
approval standards, we recommend that you consider
alternative designs or locations that can accommodate the
increased antennas and other equipment in a stealth
manner.” (Id.) The County went on: “In
this instance, the monopole is directly visible to the
adjoining state highway and several surrounding residential
and agricultural properties. A stealth windmill or silo
design could be an appropriate choice for this
location.” (Id. at Ex. F, ECF No. 15-6, at 3.)
While the document contains language indicating that
Defendants could submit additional materials, the parties
agree that the Application had been complete since May 18,
2017. (Id. ¶ 68.) Defendants maintain that this
“Presubmittal Review” document was not a formal
denial of the Application and an EFR. (Id. ¶
48.)
On July
11, 2017, Defendants and the County exchanged e-mails
regarding alternative designs, and the County reiterated its
concerns with the Application as submitted. (Id.
¶¶ 52-53.) On October 24, 2017, counsel for
T-Mobile sent a letter to the County explaining its position
that the County's conclusions concerning the Application
were incorrect. Specifically, T-Mobile argued that the
modifications comprehended by the Application would not
“substantially change the existing structure”
within the meaning of federal law. (Id. ¶ 55,
Ex. G.) That letter also stated that “it constitutes
T-Mobile's response to” the “Presubmittal
Review, requesting additional information.” T-Mobile
took the position that the “Presubmittal Review”
was not a final decision, but it had instead tolled the
60-day shot clock, and “T-Mobile is therefore
restarting the shot clock” with its provision of
additional information. (Id. at Ex.
G.)[4]
On
November 7, 2017, fourteen days later, the County sent a
letter to Defendants reiterating its claim that the submittal
would result in a substantial modification of the tower, and
stating that the shot clock did not apply because T-Mobile
submitted a “Presubmittal Review Request, ” not a
formal EFR application. (Id. ¶
58.)[5]
This letter unequivocally iterates the County's position
that Defendants' submission was not a valid EFR:
What had appeared as an innocuous unused pole with nothing on
it (thus the “stealth” designation) would change
into what is clearly some sort of wireless communications
facility with a large cylinder located at the top.
Exasperating this proposed new condition is the location in a
highly visible and trafficked urbanized area. This would
clearly ‘defeat the concealment elements' as
contemplated in 47 C.F.R. § 1.40001(b)(7)(v) and is
therefore a ‘substantial change' that does not
qualify for approval under 47 U.S.C. § 1455(a)(1).
(ECF No. 28-8.) On November 14, 2017, Defendants responded,
taking the position that it had submitted an EFR subject to
the shot clock and the County's presubmittal review
process was unlawful. (Id. ¶ 59.) On December
1, 2017, Defendant sent the County another letter, in which
it submitted that the shot clock had run on November 18,
2017, Defendants' Application was “deemed
granted” as a matter of law, and Defendants intended to
commence construction. (Id. ¶ 60-61.) The
County did not issue a permit for Defendants'
modification. (Id. ¶ 62.)
B.
Procedural Posture
On
December 29, 2017, the County filed this action seeking
declaratory relief, invoking the Court's federal question
jurisdiction. (Compl., ECF No. 1.) Generally, the County asks
this Court to confirm that it did, in fact, deny the
Application; the Application is no longer subject to
challenge; and that Defendants' letter notice that the
Application is “deemed granted” is of no legal
effect. (Compl. at 23-24.) On January 23, 2018, Defendants
answered and filed three counterclaims. (See
generally Am. Countercl.) Counterclaim One alleges a
violation of 47 U.S.C. § 1455, specifically that the
County misinterpreted the act and failed to approve a
proposal that would not allegedly effect a substantial
change. (Id. ¶¶ 105-21.) Counterclaim
Three alleges an illegal prohibition by the County of
Defendants' ability to provide wireless services.
(Id. ¶¶ 126-29.) Counterclaim Two alleges,
in toto:
COUNT
TWO
Violation
of 42 ...