Board of County Commissioners for Douglas County, Colorado v. Crown Castle USA, Inc. et al
Filing
107
AMENDED ORDER re: 101 Order on Motion for Summary Judgment; Order on Report and Recommendations, by Judge Daniel D. Domenico on 1/9/20. (pglov)
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Case No. 18-cv-03171-DDD-NRN
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY,
COLORADO,
Plaintiff/Counter-Defendant,
v.
CROWN CASTLE USA, INC., and
T-MOBILE WEST LLC,
Defendants/Counter-Plaintiffs.
AMENDED ORDER 1
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
This Amended Order replaces the Court’s original Order of September 9, 2019 (Doc. 101), which has been withdrawn pursuant to the
Court’s Order on Plaintiff’s Rule 59(e) Motion to Alter or Amend Judgment.
1
says, the proposed alterations would make the tower look like “a marshmallow 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
Based on its review of the evidence submitted by both parties, the
Court, in all candor, is not especially impressed by either of them.
2
Unless otherwise noted, the Court will refer to the defendants collectively as Crown Castle.
3
2
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
This matter was reassigned to Judge Daniel D. Domenico on July
12, 2019. (Doc. 98.)
4
The parties’ briefing cites these regulations as 47 C.F.R. § 1.40001,
which was later re-designated as 47 C.F.R. 1.6100. See 83 FR 51886
(Oct. 15, 2018).
5
3
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.
4
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. Countercl. ¶¶ 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.
5
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 “Presubmittal 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
6
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 presubmittal 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.)
7
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
The County moved to dismiss the Defendants’ section 1983 counterclaim. (Doc. 30.) That motion was granted after the parties completed
their summary judgment briefing. (Doc. 90.)
6
The County argues that de novo review is not required because Defendants’ objection merely “rehashes” their summary judgment briefing
and therefore Judge Neureiter’s disposition was not “properly objected
to.” Plaintiff’s Resp. at 3 (Doc. 97). While objections that simply reiterate
the underlying arguments and fail to address the specifics of the magistrate judge’s disposition may not be entitled to de novo review, e.g.,
Vester v. Asset Acceptance, L.L.C., 08-cv-01957-MSK-LTM, 2009 WL
2940218, at *8 (D. Colo. Sept. 9, 2009), this is not such a case. Defendants’ objections are quite detailed and certainly “‘specific enough to enable [the Court] to focus attention on those issues—factual and legal—
that are at the heart of the parties’ dispute.’” Cheavens v. Public Serv.
Corp., 176 F. Supp. 3d 1088, 1091 (D. Colo. 2016) (quoting United States
v. One Parcel of Real Prop. Known as 2121 East 30th St., 73 F.3d 1057,
1059 (10th Cir. 1996)).
7
8
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.
Timing Matters
1. Whether the County’s “Presubmittal Review”
Constituted a Denial of Defendants’ Application
The County argues that it denied the Defendants’ application in June
2017, and that, pursuant to the Telecommunications Act of 1996, 47
U.S.C. § 332(c)(7)(B)(v), Defendants had 30 days in which to challenge
the County’s denial in court. (Doc. 62, at 12.) Defendants did not file an
action within that timeframe, and the County therefore contends that
Defendants have forfeited their right to do so. 8 Compl. ¶ 6 (Doc. 1). The
Court disagrees.
And because a deemed granted right is only available if a local government fails to act, not if it has denied an application, 47 C.F.R.
§ 1.6100(c)(4), if the County is correct about this the deemed granted
letter would be invalid and the denial would stand.
8
9
The County correctly points out that by June 29, 2017, its staff had
expressed to Crown Castle that its application was not going to be approved. See Pls. Ex. 12 (Doc. 63-14, at 3) (“Since 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.”). The Court agrees
that this was a clear statement that the County’s zoning staff would not
approve the application in its current form, but it does not agree that
this constitutes a denial that triggers the 30-day deadline.
The County’s response to Crown Castle’s application, which the
County styled as a “Presubmittal Review,” does not contain any form of
the word “deny.” At most, it appears to be an invitation to Crown Castle
to consider alternative designs and amend and resubmit its application.
See id. at 2 (“This Presubmittal Review is intended primarily to identify
the appropriate process; compliance with applicable regulations will be
evaluated throughout the application review process.”). Perhaps even
more telling, the County has a form specifically designed to either deny
or approve applications, but chose not to use it in responding to Crown
Castle’s application. That form, entitled “Eligible Facilities Request Determination,” Plaintiff’s Ex. 7, at 8 (Doc. 63-8), contains two optional
boxes for the decision maker to check. Next to the first box is the statement: “This project has been determined to meet the definition of an
Eligible Facility and is deemed approved as of _________ (date).” Id. at
9. The second option states: “This project exceeds one or more of the Eligible Facility thresholds as noted below. The request is a substantial
change and is not approved as of _________ (date).” Id. The County’s failure to utilize that form, but instead to communicate less formally, illustrates that its Presubmittal Review was not a denial.
10
The Court holds that the County did not deny Defendants’ application in June 2017 and therefore Defendants did not fail to timely seek
relief. Judge Neureiter’s Report and Recommendation concluded otherwise. He found it telling that did not provide an affidavit expressing confusion or doubt about whether the “Presubmittal Review” was a denial.
(Doc. 86 at 28.) This Court finds it far more telling, however, that the
County chose not to send Defendants a form whose explicit purpose is
the approval or denial of an EFR application.
The Report and Recommendation cites T-Mobile South, LLC v. City
of Roswell, 574 U.S. 293 (2015), for the proposition that the specific
words “deny” or “denial” need not be used to communicate the denial of
an application. That is so, but does not alter the conclusion here. The
holding in T-Mobile South was that (1) a locality must give reasons to
support its denial of an application, and (2) the reasons need not necessarily appear “in the same writing that conveys the locality’s denial of
an application.” Id. at 815. Implicit in the Court’s holding is the notion
that the locality, at some point, must actually “convey[] the . . . denial of
an application.” Id. As discussed above, the County did not convey to the
Defendants that their application had been denied. It clearly did not approve the application, but neither did it deny it. 9 The letter thus did not
trigger Section 332’s timeline.
Judge Neureiter also noted that at oral argument, Defendants’ counsel admitted that “[i]t is clear . . . that the County believes that this is
not properly filed as an EFR. I completely agree that that is an accurate
statement of what staff’s opinion was.” As Defendants have pointed out,
however, counsel stated in the very next sentence, “Nothing in this document [i.e., the “Presubmittal Review”] says this is a final determination
by staff that this is a denied application, and that’s the point that I think
is critical—it’s subtle, but [the] critical difference between the two things
we’re talking about.”
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2. The effect of the Deemed Grant letter
As described above, the parties engaged in a lengthy back and forth
in the summer and fall of 2017 before Crown Castle ultimately sent a
Deemed Grant Letter on December 1 of that year. The parties and the
Recommendation spent a significant amount of their time disputing the
propriety of that letter at that time, but it is ultimately of little import
to the disposition of this case.
The Report and Recommendation concluded that the Deemed Grant
Letter “appears to have been a bullying tactic to force Douglas County
into court as the Plaintiff bearing the burden of proof when, for its part,
Douglas County had acted in a timely and appropriate fashion all along.”
(Doc. 86 at 33). The Court does not disagree that the County acted appropriately; it appears that it followed relatively routine procedures for
a local planning department. But particularly given the Court’s conclusion that the County had not denied the application, the Court agrees
with Crown Castle that the Deemed Grant Letter, rather than a bullying
tactic, is simply the means provided by the Rule for an applicant to move
the process along. See 47 C.F.R. § 1.6100(c)(4) (“In the event the reviewing State or local government fails to approve or deny a request seeking
approval under this section within the timeframe for review (accounting
for any tolling), the request shall be deemed granted.”); In the Matter of
Acceleration of Broadband Deployment by Improving Wireless Facilities
Siting Policies, FCC 14-153 (“2014 Order”) ¶ 227. (“[T]he text of Section
6409(a) supports adoption of a deemed grant remedy, which will directly
serve the broader goal of promoting the rapid deployment of wireless
infrastructure.”).
In light of the Court’s holding that the County’s “Presubmittal Review” was not a denial of the Defendants’ application, the 60-day shot
12
clock set forth in 47 C.F.R. § 1.6100(c)(2) continued to run. The regulation allows the shot clock to be tolled if the parties mutually agree to
tolling or if the locality determines that the EFR application is incomplete, but there is no evidence in the record of either of those circumstances. Accordingly, the deadline for the County to approve or disapprove of the Defendants’ application expired on July 17, 2019—60 days
after the Defendants completed their application. 10
The application was therefore deemed granted as of December 1,
2017, when Defendants advised the County of their view that the review
period had expired. 47 C.F.R. § 1.6100(c)(4) (“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) that the application has been deemed granted.”). The County
argues that Crown Castle had 30 days from the expiration of the 60-day
period in which to challenge the County’s failure to act either in court or
with a deemed grant letter. Plaintiff’s Motion, at 13-14 (Doc. 62). That
is not how the deemed grant provision operates. The regulation does not
specify a deadline by which an applicant must send a deemed grant letter after expiration of the 60-day shot clock. The FCC has stated that
the “relevant event” triggering the 30-day deadline is “the date of the
denial of the application or the date of the notification by the applicant
to the state or local authority of a deemed grant in accordance with our
rules . . .” 2014 Order ¶ 236. There having been no denial, the relevant
The County argues that it subsequently sent a letter in November
2017 “reiterating” that the Defendants’ application had been rejected.
As discussed above, however, the County’s “Presubmittal Review” was
not a denial as a matter of law. Since the County sent the November
2017 letter more than three months after the expiration of the 60-day
period, it was of no effect.
10
13
event was the Deemed Grant Letter, twenty-eight days after which
Douglas County brought this suit. 11
It is true this forces the local government to file the case as the plaintiff, which means they carry the burden of proof. But in this case the
parties have agreed that the issues are purely legal, so that is of little
practical import. While the phrase “deemed granted” could suggest that
the effect of such a letter is binding and not subject to review, which
would be significant indeed, that does not appear to be the case. See id.
¶ 231 (“[A] State or local authority may challenge an applicant’s written
assertion of a deemed grant in any court of competent jurisdiction when
it believes the underlying application did not meet the criteria in Section
6409(a) for mandatory approval.”). Instead, it appears Crown Castle is
correct that the main effect of a deemed grant letter is purely procedural,
a way for the applicant to “mark the culmination of the application process” when there has not otherwise been a final approval or denial by
the locality. (See Doc. 92 at 20.) Thus, the letter had no effect other than
to force the County to decide whether to sue to block the changes to the
tower. They did, and the Court now turns to the merits.
B. Whether Defendants’ Application was a Valid EFR
The Spectrum Act was “designed to encourage the growth of a robust
national telecommunications network.” Montgomery County v. Federal
The County has never argued that its actions between June and November 2017 should be considered a “failure to act,” and so the Court
need not consider whether that clause of § 332 might have been triggered at some point prior to the filing of this suit. Even so, it would seem
that the best reading of the statute in these circumstances is that since
an applicant whose valid application a government has failed to act upon
has the right to the deemed granted remedy, they cannot be “adversely
affected” by a failure to act until their exercise of that remedy is challenged.
11
14
Communications Comm’n, 811 F.3d 121, 124-25 (4th Cir. 2015). It does
so in part by preventing local governments from unduly delaying relatively minor modifications to existing cellular facilities. In particular, it
specifies that local governments “may not deny, and shall approve, any
eligible facilities request for a modification of an existing wireless tower
. . . that does not substantially change the physical dimensions of such
tower . . . .” 47 U.S.C. § 1455(a)(1).
The Act does not define what constitutes a “substantial change” to
the “physical dimensions” of a tower, but FCC regulation provides that
a proposed modification “substantially changes the physical dimensions” of an existing tower if it adds more than 10 percent or more than
ten feet to the height (whichever is greater) or adds an appurtenance
wider than 20 feet. 47 C.F.R. § 1.6100(b)(7)(i–ii). The parties agree that
Defendants’ proposed cell tower modification did not exceed these limits.
In addition to defining the physical dimensions of a “substantial
change,” however, the FCC’s regulation also states that a modification
“substantially changes the physical dimensions” of a tower if “[i]t would
defeat the concealment elements of the eligible support structure.” 47
C.F.R. § 1.6100(b)(7)(v). The core question in this case, then, is whether
the Defendants’ proposed expansion of the canister at the top of the
structure defeats the “concealment elements” of the tower. The County
can prevail on that question if three propositions are true:
1. The Rule’s concealment element clause and size limit clauses
must each be satisfied, rather than just one or the other,
2. The height and width of the original pole are “concealment elements” under the Rule, and
3. The proposed alterations would defeat those elements.
15
The Rule is less than clear in certain respects. It provides no definition for any of the operative words here (concealment, elements, defeat),
for example. But as to the first proposition here, the text of the Rule
specifies that each of the clauses in subsection (7) of the Rule are independent and separate criteria that cannot be violated in order to qualify
for mandatory approval. See 47 C.F.R. § 1.6100(b)(7) (“A modification
substantially changes the physical dimensions of an eligible support
structure if it meets any of the following criteria:”) (emphasis added)).
Although as explained below some of its arguments implicate this proposition in certain circumstances, Crown Castle does not directly contest
that in general the size and concealment elements must both be satisfied
to qualify as an EFR.
As noted, neither rule nor statute defines “concealment elements”
and the Court has not found or been pointed to any cases that do. The
relevant dictionary definition of “concealment” is:
•
“The action or an act of keeping something secret or hidden from
knowledge.”
and the relevant definition of “conceal” is:
•
“To keep the nature or identity of (a person or thing) secret; to
disguise.”
Oxford English Dictionary (3d ed. 2015).
“Element” is defined as:
•
“A component part of a complex whole”;
•
One of the facts or conditions which ‘enter into’ or determine the
result of a process, calculation, deliberation, or inquiry.”
Id.
16
The Court holds that “concealment elements” as used in subsection
(7) of the Rule include those specific, objective conditions or requirements placed on a facility in order to help it blend in with surroundings
or otherwise appear to be something other than a wireless transmission
facility. The parties and the Recommendation spend a significant
amount of time discussing what the proposed pole will look like. See,
e.g., Recommendation at 24–27 (Doc. 86). But based on this definition of
“concealment elements,” the Court agrees with Crown Castle that the
case cannot turn on either the County’s or a judge’s assessment of
whether the proposed facility looks enough like the rest of the utility
poles in the area to blend in. That is the goal of the concealment elements, but it is not an element itself. “Concealment elements” then does
not include the overall appearance of the structure, or what it is meant
to “look like,” but only the particularized conditions or steps that were
imposed in order to attempt to achieve “concealment.” This definition is
not only consistent with the plain meaning of the text but also the regulatory structure and the FCC’s justification for the Rule. 12
As far as the Court has discovered, only one federal decision has addressed the regulations at issue here. While not directly on point, it supports this understanding of the text. In Montgomery County, Md. v. FCC,
811 F.3d 121 (4th Cir. 2015), a coalition of local governments challenged
the FCC’s adoption of the regulations. The plaintiffs contended that “the
term ‘substantial’ . . . is not amenable to the objective standards the FCC
has used, but instead requires a contextual inquiry.” Id. at 130. The
court rejected the plaintiff’s argument, “given that the provision at issues addresses ‘physical dimensions.’ It was not unreasonable for the
FCC to supply a strictly numerical definition of substantiality in this
context, because the physical dimensions of objects are, by their very
nature, suitable for regulation through quantifiable standards.” Id. Although the decision does not specifically address the concealment elements provision, the Court finds in the Fourth Circuit’s reasoning some
support for an objective approach to the “concealment elements” provision.
12
17
The use of the word elements is particularly telling here. Had the
FCC meant to include a more generalized overview of the appearance of
a facility, it could have simply dropped the word “elements” entirely and
the Rule would apply to any change that defeats the “concealment” of
the facility. Or, it could have used the somewhat more common concept
of the “stealth tower.” See, e.g., Alta Towers, LLC v. City of New Braunfels, No. 5:16-CV-00726-XR, 2017 WL 2703585, at *5 (W.D. Tex. June
22, 2017) (“Dictionary.com provides that a stealth tower is ‘any telecommunications tower that is disguised or hidden to blend in with nature or
structures.’”). Instead, the Rule requires focusing on the elements used
to achieve concealment and stealth.
That those elements are specific, objective requirements such as size,
shape, color, faux tree branches is supported by the FCC’s justification
for the rule. See 2014 Order ¶ 200 (noting that commenters “generally
agree that a modification that undermines the concealment elements of
a stealth wireless facility, such as painting to match the supporting façade or artificial tree branches, should be considered substantial”). A
more subjective, big-picture review of the appearance would also be contrary to the FCC’s explicit rejection of local government commenters’ desire for subjective and “context-specific” rules. See, e.g., id. at 227 (the
statute’s “directive leaves no room for a lengthy and discretionary approach”); ¶¶ 183-88 (describing different approaches, and stating, “we
adopt an objective standard for determining when a proposed modification will ‘substantially change the physical dimensions’ of an existing
tower or base station”); ¶ 189 (“We initially conclude that we should
adopt a test [for what constitutes a substantial change] that is defined
by specific, objective factors rather than . . . contextual and entirely subjective standard[s] . . . .”); ¶ 232 (noting that local governments “must
18
determine, on a non-discretionary and objective basis, whether an application fits within the parameters of Section 6409(a)”).
So, a generalized desire that the pole look like a utility pole or blend
in with its surroundings is not, in itself, a concealment element under
the Rule. But by the same token, the undisputed facts in this case make
it clear that the limitations on height and width on the original pole imposed as part of the original approval process are concealment elements.
From the start of that process to the end, the County insisted that the
pole be made to look as much like existing utility poles in the area as
possible. See Plaintiff’s Ex. 1, at ¶¶ 15-17 (Doc. 63-1); Plaintiff’s Ex. 4,
at 1 (Doc. 63-4). 13 The means of doing so (which is to say, the concealment elements) included the shrouding of the antennas, the mandated
paint color, and the height and width of the pole. There is no explanation
for why the 35-foot height and 18-inch width limits were included in the
approval documents other than to help match other utility poles in the
area, which was the clear concern of the original siting approval process.
In other words, the only apparent reason those particular elements were
included in the approval was to aid in the concealment of the facility.
They are, by definition then, concealment elements, which would be defeated by Crown Castle’s proposed modification to expand the width of
the concealment shroud and increase the height of the pole.
In their summary judgment briefing, Defendants argued these documents were not properly disclosed and therefore should not be considered. Judge Neureiter rejected the argument (Doc. 86 at 8-9), and Defendants have not raised the argument in their objections. Accordingly,
the Court reviews Judge Neureiter’s analysis of this argument for clear
error. Fed. R. Civ. P. 72(b), Advisory Committee Notes. The Court determines that Judge Neureiter’s analysis was correct, and therefore adopts
it.
13
19
Crown Castle makes both specific and general arguments against
this conclusion. The specific arguments are that the documents do not
show that the facility was required to “match” existing poles or state
that that it was approved because it included any particular stealth criteria. (See Doc. 69 at 3-5, 9.) These are beside the point. As explained
above, the question is whether the limits on height and width are among
the specific “facts or conditions” imposed as part of the concealment design that the County demanded and the Defendants agreed to. While it
may be a wise practice going forward for parties building such facilities
to clearly label any “concealment elements,” there was no reason to do
so before the passage of the Spectrum Act and adoption of the Rule. And
neither of those requires such explicit specification of concealment elements even now, let alone looking back.
Crown Castle’s general point is more significant. The heart of its argument is that “if the exact dimensions of a structure could themselves
be concealment elements, then no change to the physical dimensions of
the structure would qualify as an EFR.” (Doc. 69 at 5). This, it says,
would effectively “write the word ‘substantially’ out of the statute and
deprive it of all meaning.” Id. This argument is not without some merit.
The statute in question is, as modern federal statutes go, surprisingly
simple, stating merely that a local government must approve any request “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). This seems to have been a
bit too simple for the FCC, and so the implementing regulations include
the various provisions outlined above, among others, along with the accompanying 155-page, 290-paragraph 2014 Order.
20
As Crown Castle notes, the statute speaks only of “substantial
changes” to a facility’s “physical dimensions,” and the Rule then sets explicit limits on what it deems substantial changes in the physical size of
an EFR. See 47 C.F.R. 1.6100(7)(i)-(iii). At least at first glance, it would
seem to stretch the statute’s language to impose additional restrictions
on changes that impact concealment elements when the Rule elsewhere
has already stated what the FCC has determined is a substantial change
in physical dimensions.
Nevertheless, the Court does not agree with Crown Castle that this
means the concealment elements clause cannot be applied in this case.
First, to the extent the Defendants believe that the concealment elements clause is outside the statutory authorization, they have not argued that it is invalid in general or as applied. 14 The Court therefore
proceeds on the assumption that the Rule as written is valid. Second,
the Court does not agree that recognizing that size limits can also be
concealment elements means that no change to a structure’s physical
structure will ever qualify as an EFR such that “substantially” is effectively written out of the statute. For one thing, only a subset of facilities
are “stealthy” at all, and only a further subset of those will include strict
size limitations among their concealment elements. It is only in that
sub-subset of structures whose size is a significant part of their camouflage that this issue would arise.
But within that category, there can be little doubt that the Rule is
meant to exclude changes to concealment elements from the mandatory
Indeed, Defendants reluctantly recognize that the non-size requirements, such as paint color and a shroud covering the antennas, are concealment elements. Defendants’ S.J. Resp., at 4 (Doc. 69). Yet it is even
harder to find the statutory justification for such things, which have an
even more tenuous connection to the facility’s “physical dimensions.”
14
21
approval provisions, even if they would otherwise be within the general
size limits. As explained above, the Rule’s plain language requires compliance with both provisions. If there were doubt, 47 C.F.R. 1.6100(7)(vi)
of the Rule should dispel it. There, the FCC addressed other conditions
on approval—that is, conditions that are not concealment elements. The
FCC required compliance with such other, non-concealment related conditions put on the initial site approval, just as it did with concealment
elements. But tellingly, for those non-concealment conditions, the FCC
explicitly wrote into the subsection an exception for changes that comply
with the Rule’s other height and width limitations. See Rule at (7)(vi);
see also 2014 Order at ¶ 200 (“[W]e agree with municipal commenters
that a change is substantial if it violates any condition of approval . . .
unless the non-compliance is due to an increase in height, increase in
width, addition of cabinets, or new excavation that does not exceed the
corresponding “substantial change” thresholds we identify above.”). This
is precisely what Crown Castle asks the Court to read into the concealment elements provision, but the Court is not inclined to do so when the
FCC chose to apply it only to other conditions. 15
As a matter of statutory interpretation, the FCC appears to have concluded that what constitutes a “significant change” in physical dimensions is different for “stealth” facilities than for others. See 2014 Order
at ¶ 200 (“We agree with commenters that in the context of a modification request related to concealed or ‘stealth’-designed facilities—i.e., facilities designed to look like some feature other than a wireless tower or
base station—any change that defeats the concealment elements of such
Defendant’s interpretation would have the Rule apply no differently
if subsection (7)(v) did not exist, effectively expanding the qualifications
of (7)(vi). Instead, the specific omission of (7)(v) from (7(vi)’s safe harbor
clarifies the function of concealment elements as independent of the dimensional harbors.
15
22
facilities would be considered a “substantial change.”) (emphasis added);
see also id. at ¶¶ 182-187 (discussing various comments on this clause).
It did so after significant input from industry as well as local governments, and with apparent understanding of the consequences of the concealment elements clause. It knew how to provide for an exemption for
changes that otherwise comply with the Rule’s size limits, and did so for
certain original conditions of approval, but chose not to for concealment
elements.
Whether the Rule interpretation of the Act’s simple language is apt
of no moment; the FCC is empowered to interpret and enact regulations
to execute the Act, and the Defendants have not contested the Rule’s
validity. As written and explained by the FCC, the Rule excludes from
the EFR process changes that would in any way defeat a facility’s original concealment elements. It is true that in cases such as this, where
the concealment elements include specific height and width limits, that
means that the Rule’s more general size limits carry no weight, and it
also means that Crown Castle is right that no material changes to the
physical dimensions of the pole can be made under this expedited, mandatory-approval process. But the FCC appears to have considered that
possibility, and apparently with the widespread support of the wireless
industry, 16 chose not to permit such changes merely because they complied with the new Rule’s size limits as it did for conditions not related
to concealment of a facility. The Court recognizes that for the subset of
facilities with size-related concealment elements, this may, as Crown
Castle argues, frustrate the goal of the Act and the Rule to speed up the
See 2014 Order at 200 (noting that the blanket exclusion of changes
to concealment elements “is widely supported by both wireless industry
and municipal commenters.”)
16
23
process of adding bandwidth and other improvements. 17 To the extent
the rule strikes the wrong balance in these cases, however, that is a
matter for the FCC or Congress to address. The Court must apply the
rule as written, and as written, it excludes Crown Castle’s application
from the EFR process because it would defeat the specific concealment
elements that limit the size of the existing pole to 35 feet high and 18
inches wide. 18
D.
Whether the County’s Actions “Prohibit or Have the
Effect of Prohibiting the Provision of Personal Wireless Services”
Crown Castle asserts an independent ground for relief under Section
704 of the Telecommunications Act of 1996 (“TCA”), 47 U.S.C.
§ 332(c)(7)(B)(i)(II), which states that a locality’s regulation of the
“placement, construction, and modification of personal wireless services
. . . shall not prohibit or have the effect of prohibiting the provision of
personal wireless services.” The Defendants claim that the County has
violated this provision of the TCA.
The Tenth Circuit has held that the test for assessing a claim under
Section 704 is whether (1) preventing construction of the proposed facilities prevents the cellular provider entity from closing a “significant gap”
in existing services, and (2) the proposed facilities were “the least intrusive means” of closing that gap. AT&T Mobility Servs., LLC v. Village of
Of course, it reinforces another goal: to “address municipalities’ concerns over impacts to aesthetics and other local values.” Id. at 7.
17
Crown Castle has not argued that, if the size limits are concealment
elements their proposed changes would somehow not “defeat” them. Indeed, they concede the opposite: “if the exact dimensions of a structure
could themselves be concealment elements, then no change to the physical dimensions of the structure would qualify as an EFR.” Doc. 69 at 5.
The Court therefore need not decide here whether some sort of de minimus alteration to a concealment element would still qualify.
18
24
Corrales, 642 F. App’x 886, 889 (10th Cir. 2016). Although the Defendants cite to an FCC Infrastructure Order suggesting that this significant
gap/least intrusive means test is overly rigid, the Tenth Circuit has not
adopted that view.
Crown Castle has submitted evidence that there is a “significant gap”
in existing services that would be remedied by an expansion of the existing cell tower, and the County does not appear to dispute that evidence. The County does dispute, however, that the Defendants’ proposed
modification was the least intrusive means of closing the gap. The Court
agrees with Judge Neureiter’s observation that the County was open to
other alternatives for modifying the tower, such as a windmill or silo
design, that the Defendants could have pursued but did not. Having chosen to follow the Deemed Grant Letter route rather than the alternative
modifications suggested by the County, the Defendants cannot credibly
argue that the County prohibited them from providing wireless services.
Thus, setting aside the entirely separate issue of whether the Defendants’ proposed modification would have “substantially change[d]
the physical dimensions” of the tower, the Court holds that the Defendants are not entitled to summary judgment on their prohibition claim
under Section 704 of the TCA.
III.
CONCLUSION
For the foregoing reasons, the Court ADOPTS in part and REJECTS in part the Report and Recommendation (Doc. 86), as modified
and explained herein.
The Court GRANTS Plaintiff’s Summary Judgment Motion (Doc.
62) in part. The Court DECLARES that Defendants’ proposal is not an
eligible facilities request under 47 U.S.C. § 1455(a)(1) and 47 C.F.R.
§ 1.6100. The Court DENIES the remainder of Plaintiff’s Summary
25
Judgment Motion and DENIES Defendants’ Summary Judgment Motion (Doc. 61). The Clerk of Court is directed to enter declaratory judgment in Plaintiff’s favor on Count III of its Complaint (Doc. 1). All other
claims and counterclaims are hereby DISMISSED.
Dated: January 9, 2020.
BY THE COURT:
_______________________
Daniel D. Domenico
United States District Judge
26
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