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

          AMENDED ORDER ^[1]

          Daniel D. Domenico, United States District Judge.

         This case presents a novel application of the age-old friction between technological advances and aesthetic preferences. The defendants, to help satiate their customers' increasing demand for wireless bandwidth, seek to improve an existing cellular transmission tower they own and operate in Douglas County, Colorado. They would do so by adding slightly larger antennas and other equipment covered by a metal cylinder at the top of their existing pole, which they claim would essentially look like a cap on a pen. Douglas County opposes this effort because its approval of the original pole was conditioned on its being made to resemble an old fashioned, yet unadorned utility pole, but, the County says, the proposed alterations would make the tower look like “a marsh-mallow on a stick.”

         The issue before the Court, however, is not which of these similes it finds most apt.^[2] Congress has passed statutes and the Federal Communications Commission has enacted a regulation (“the Rule”) that seeks to address the very sort of tension between improved wireless infrastructure and local control this case exemplifies. The Rule provides that local governments must approve requests to make certain types of improvements to certain types of wireless facilities in an expedited process. The question here is whether this is such a request. The Court concludes that it is not and agrees with the Magistrate Judge's conclusion that summary judgment be granted in favor of Douglas County.

         I. BACKGROUND

         The defendants and counterclaimants here are T-Mobile West LLC and a facilities infrastructure company named Crown Castle USA, Inc.^[3] The cellular tower in question is in Castle Rock, Colorado, a fast-growing area outside of Denver. In May 2017, Crown Castle sought the county's approval to make alterations to the tower. The County did not approve that request, but after a few months of back and forth, which will be discussed in detail below, Crown Castle informed the County that it believed it was legally entitled to improve the tower nonetheless. The County then brought this suit seeking to block the changes, and Crown Castle counterclaimed. Both parties have filed competing motions for summary judgment (Docs. 61, 62), which have been fully briefed, as have objections to the magistrate judge's Report and Recommendation on those motions.^[4]

         A. The Spectrum Act and Its Implementing Regulations

         Under the Supremacy Clause of Article VI of the United States Constitution, valid federal law and regulation preempts contrary state and local enactments. See Colo. Dep't of Health & Env. v. U.S., 693 F.3d 1214 (10th Cir. 2012). The County here does not dispute that if federal statute or rule gives Crown Castle the right to make their proposed changes, any contrary county requirements must give way. The Court therefore begins with a brief overview of the applicable law before turning to the facts and procedural posture.

         Governing 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).

         The FCC's implementing regulations require a local government to approve EFR applications within 60 days of their submission. 47 C.F.R. § 1.6100(c)(2).^[5] The 60-day period, colloquially referred to as a “shot clock, ” 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 remaining 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).

         B. Facts

         T-Mobile provides wireless services to businesses and the general public. Am. Countercl. ¶¶ 16, 19 (Doc. 28). Crown Castle owns, operates, and maintains an infrastructure network, which its customers, including T-Mobile, use to situate 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. Id. ¶¶ 20-21. T-Mobile must periodically upgrade and modify its existing facilities using new technologies and adding new spectrum bands as authorized by the FCC. Id. ¶ 23.

         The County provides a form for submitting EFRs. Id. ¶ 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 in Castle Rock, Colorado. Plaintiff's Ex. 7 (Doc. 63-8). That tower is a monopole and uses concealment panels to hide the antennas and associated equipment from view. The tower is of a “stealth” design, which means, according to the County, that it is disguised to resemble something other than a cellular antenna tower, in this case a regular, unadorned utility pole.

         The Defendants' application proposed to modify the tower by replacing and adding facilities that would expand 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. See Id. at p. 7. Following the modification, the tower would still use concealment panels to hide the antennas and associated equipment from view. Am. Coun-tercl. ¶¶ 30-31 (Doc. 28). Thus, the only visible changes would be the increased size of the upper portion of the tower in which the antennas and other equipment is housed.

         The application 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. See Plaintiff's Ex. 7 (Docs. 63-8 & 63-9). Crown Castle completed its application on May 18, 2017. Accordingly, the parties treated the 60-day shot clock as beginning on May 18, 2017 See, e.g., Compl. ¶¶ 54-57 (Doc. 1); Am. Countercl. ¶¶ 25-62 (Doc. 28).

         On June 22, 2017, Defendants met with staff from the County to discuss the application. Plaintiff's Ex. 1, ¶¶ 31, 32 (Doc. 63-1). One week later, the County sent Defendants a document entitled “Presubmittal Review” containing comments on the application. Plaintiff's Ex. 12 (Doc. 63-14). The document stated that the County's “design standards for personal wireless communication facilities do not support a 38 [inch] canister or pole diameter for this site, ” because “[a]n expansion to 38 [inches] no longer provides a stealth design” and the “original cell site was approved and constructed as a stealth utility pole.” Id. at 2. 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. at 3. The County continued: “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.

         On October 24, 2017, counsel for Crown Castle responded by letter explaining its position that the County's conclusions were incorrect. Specifically, the letter argued that the proposed modifications would not “substantially change the existing structure” within the meaning of federal law. Defendant's Ex. G (Doc. 28-7). 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 “Presub-mittal Review” was merely a request for additional information that tolled the 60-day shot clock, and “T-Mobile is therefore restarting the shot clock” with its provision of additional information. Id.

         On November 7, 2017, the County sent a letter to the Defendants reiterating its view 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. Defendant's Ex. H (Doc. 28-8). This letter clarified the County's position that Defendants' proposed modification would alter the concealment elements of the original design:

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 [sic] 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).

Id. The Defendants responded a week later, taking the position that it had submitted an EFR subject to the shot clock and the County's pre-submittal review process was unlawful. Defendant's Ex. I (Doc. 28-9). On December 1, 2017, Defendants sent the County another letter, in which it submitted that the shot clock had expired on November 18, 2017, that Defendants' Application was “deemed granted” as a matter of law, and that Defendants intended to commence construction. Defendant's Ex. J (Doc. 28-10).

         On December 29, 2017, the County initiated this action seeking declaratory relief, claiming that the Defendants' Deemed Grant Letter was void and that the Defendants had waived the right to challenge the County's actions (“Timing Matters”). The County also sought, in the alternative, a declaration that the Defendants' proposed modification to the cell tower constitutes a “substantial change to the physical dimensions” within the meaning of 47 U.S.C. § 1455(a)(1). (Id.)

         The Defendants, in turn, filed three amended counterclaims (Doc. 28, at 13-30). They claim that: (1) the proposed modification is not a “substantial change”; (2) the County's failure to approve the Defendants' application deprived them of their legal rights in violation of 42 U.S.C. § 1983; and (3) the County's failure to approve the application effectively prohibited the provision of wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).

         C. Procedural Posture and Standard of Review

         The parties filed competing summary judgment motions on all claims, which were referred to Magistrate Judge Neureiter. (Doc. 66.) Judge Neureiter considered the motions, held oral arguments, and issued a report and recommendation that urged granting the County's motion for summary judgment and denying Defendants' motion.^[6] (Doc. 86.) The Defendants filed timely objections. (Doc. 92.) “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3).^[7]

         II. ANALYSIS

         A. Summary Judgment Standard

         Summary judgment is appropriate if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if it could affect the outcome of the suit under governing law; a dispute of fact is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. If no reasonable juror could return a verdict for the nonmoving party, summary judgment is proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The parties here have both conceded that there are no material factual disputes, and that the questions before the Court are purely legal. (Doc. 63.) Summary judgment therefore is an appropriate means of resolving the case.

         B. ...