United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY, COLORADO, Plaintiff/Counter-Defendant,
CROWN CASTLE USA, INC., and T-MOBILE WEST LLC, Defendants/Counter-Plaintiffs.
AMENDED ORDER 
D. Domenico, United States District Judge.
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.”
issue before the Court, however, is not which of these
similes it finds most apt. 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.
defendants and counterclaimants here are T-Mobile West LLC
and a facilities infrastructure company named Crown Castle
USA, Inc. 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.
The Spectrum Act and Its Implementing Regulations
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
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'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). 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. §
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).
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.
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
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.
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).
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.
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.
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
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.)
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. §
Procedural Posture and Standard of Review
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. (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).
Summary Judgment Standard
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.