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

Filing 72

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE By Magistrate Judge N. Reid Neureiter on 12/18/2018 re 30 MOTION to Dismiss Count Two of Defendants/Counter-Plaintiffs Counterclaim filed by Board of County Commissioners for Douglas County, Colorado. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-03171-RM-NRN
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY, COLORADO,
Plaintiff,
v.
CROWN CASTLE USA, INC. and
T-MOBILE WEST LLC,
Defendants.
REPORT AND RECOMMENDATION ON
PLAINTIFF/COUNTER-DEFENDANT’S RULE 12(b)(6) MOTION TO DISMISS COUNT
TWO OF DEFENDANTS/COUNTER-PLAINTIFFS’ COUNTERCLAIM
(DKT. #30)

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/CounterPlaintiffs 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

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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

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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 60day “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

1

In a later filing, the Company Defendants dispute the marshmallow description,
asserting instead that the updated facility would look more like a “cap on a pen” than a
“marshmallow on a stick.” (Dkt. #69 at 5-6).
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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

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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

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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

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The Parties also have filed cross motions for summary judgment on the fundamental
substantive issue in the case--whether the Company Defendants’ Application should be
deemed “granted” or not, and whether the Company Defendants’ Application qualified
as an EFR at all. (Dkt. ##61 & 62.) Briefing is not yet complete on these motions.
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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 via an action for damages
and attorneys’ fees under § 1983?

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3. ANALYSIS
a. The § 1983 Counterclaim.
Counterclaim Two is brought pursuant to 42 U.S.C. § 1983. This statute mandates
the following:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress.
Municipalities and other local government units are included among those persons to
whom § 1983 applies. See Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 690 (1978). In Monell, the Supreme Court enunciated the rule for imposing § 1983
liability on a governmental entity:
a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.
Id. at 695.
Assuming a statutory right that may be enforced via an action under § 1983, to
prevail, a plaintiff must establish “(1) that a municipal employee committed a
constitutional violation [or violation of a federal right], and (2) that a municipal policy or
custom was the moving force behind the constitutional deprivation.” Myers v. Bd. of
Cnty. Comm’rs of Oklahoma Cnty., 151 F.3d 1313, 1316 (10th Cir. 1998). The existence

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of a policy or custom can be established many different ways, including demonstrating
the existence of:
(1) a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice that, although not
authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage
with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final
policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to
these policymakers’ review and approval; or (5) the failure to
adequately train or supervise employees, so long as that
failure results from deliberate indifference to the injuries that
may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (citation and
quotations omitted). Final policymakers are those decisionmakers who “possess[ ] final
authority to establish municipal policy with respect to the action ordered.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986).
In this case, the Parties have engaged in extensive briefing and argument about
whether Douglas County’s Department of Community Development’s Planning Services
division (“Planning Services division”) is the final policymaker for the purpose of
imposing liability under § 1983. Douglas County argues that the Planning Services
division cannot be the final policymaker because, under Colorado law, Douglas County
is required to provide for a Board of Adjustment to hear appeals of any such decisions
relating to zoning enforcement or administration. Colo. Rev. Stat. § 30-28-117(1).
But to answer the question whether Counterclaim Two states a viable Section
1983 claim or not, the Court need not delve too deeply into the question of whether
Douglas County’s Planning Services division staff are final policymakers for Monell
purposes. This is because the United States Supreme Court has spoken definitively on
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the question of whether an individual action under § 1983 may be used to enforce the
limits on local zoning authority on cell tower installations set forth in § 332(c)(7) of the
Communications Act of 1934, 47 U.S.C. § 332(c)(7). It cannot. City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 120-21 (2005) (“Abrams”).
In Abrams, the rebuttable presumption that a federal right is enforceable under
Section 1983 was rebutted by Congress’ enactment in the Telecommunications Act
(itself an amendment to the Communications Act of 1934) of a “comprehensive
enforcement scheme that is incompatible with individual enforcement under § 1983.”
Abrams, 544 U.S. at 120 (citing Blessing v. Freestone, 520 U.S. 329, 341 (1997)).
I find that the F.C.C.’s implementation of regulations has created a mechanism
for enforcement of the statute at issue in this case – the Spectrum Act (implemented by
F.C.C. regulations at 47 C.F.R. § 1.40001) – which is similar in certain respects to the
statutory enforcement scheme at issue in Abrams. I further find that the policy
considerations articulated in Abrams, which militated strongly against the existence of §
1983 claim in that case, are also present here. I therefore find that § 1983 may not be
used as an independent enforcement mechanism to enforce individual rights that may
exist under the Spectrum Act.
While the enforcement scheme in this case is not established in the statute itself,
but is instead a creation of F.C.C. regulations, it would be incongruous to allow
damages and attorneys’ fees under § 1983 in this case of a local zoning authority
allegedly improperly denying a permit to make modifications to an existing cellular
facility, where the Supreme Court unanimously has held that § 1983 relief is not
available in a very similar situation where a wireless communications permit was

10

improperly denied by a municipal zoning entity under the Communications Act of 1934,
as amended by the Telecommunications Act.
Congress specifically delegated implementation and enforcement of the
Spectrum Act to the F.C.C. as if the Spectrum Act were a part of the Communications
Act of 1934. See 47 U.S.C. § 1403 (§ 6003 of the Spectrum Act). See also Montgomery
Cnty, Md. v. F.C.C., 811 F.3d 121, 125 (4th Cir. 2015) (noting that “Congress charged
the F.C.C. with implementing the Spectrum Act”). Congress similarly declared that a
violation of the Spectrum Act or a regulation promulgated under the Spectrum Act “shall
be considered to be a violation of the Communications Act of 1934, or a regulation
promulgated under such Act, respectively.” 47 U.S.C. § 1403. In the face of the
Supreme Court’s Abrams precedent, the Court cannot find that a distinct claim under §
1983 exists to remedy a violation of the Spectrum Act. Pursuant to federal regulation,
Congress has delegated enforcement of the Spectrum Act to the F.C.C., which has
created the “deemed grant” enforcement mechanism and included a separate right to
court action. A § 1983 claim cannot co-exist with this regulatory remedy.
Because a Section 1983 remedy is incompatible with the regulatory
“comprehensive enforcement scheme” available for a cellular company wrongly denied
a permit for an EFR, the Company Defendants’ second counterclaim must be dismissed
for reasons outlined in more detail below.
b. The Statutory and Regulatory Enforcement Scheme with respect to
Eligible Facilities Requests
In 2012, Congress enacted the Spectrum Act mandating that local jurisdictions
may not deny, and shall approve, an EFR for a modification of an existing wireless
tower or base station “that does not substantially change the physical dimensions of
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such tower or base station.” The Spectrum Act is codified at 47 U.S.C. § 1455(a)(1).
The F.C.C. then adopted regulations implementing this legislation. See 47 C.F.R.
§1.40001. 3
Per the regulations, an EFR is defined as “any request for modification of an
existing tower or base station that does not substantially change the physical
dimensions of such tower or base station, involving (i) Collocation of new transmission
equipment; (ii) Removal of transmission equipment; or (iii) Replacement of transmission
equipment.” 47 C.F.R. § 1.40001(b)(3).
The regulation also defines a “substantial change” within the meaning of the
statute. A proposed modification “substantially changes the physical dimensions” of the
tower if it adds more than 10 percent or more than 10 feet to the height (whichever is
greater), or adds an appurtenance larger than 20 feet, or if “[i]t would defeat the
concealment elements of the eligible support structure.” 47 C.F.R. § 1.40001(b)(7)(i),
(v).
To meet the Spectrum Act’s objective to reduce delays in the review process and
facilitate the rapid deployment of updated wireless infrastructure, the F.C.C. regulations
require localities to approve a valid EFR application: “A State or local government may
not deny and shall approve any eligible facilities request for modification of an eligible

3

The Spectrum Act and its associated implementing regulation are explained at length
in a Fourth Circuit decision, Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 124-127
(4th Cir. 2015), which upheld the Spectrum Act and 47 C.F.R. § 1.40001 against
Constitutional and Administrative Procedure Act challenges. The F.C.C. also issued an
extensive Report and Order explaining the reasoning behind the implementing
regulations codified at 47 C.F.R. § 1.40001. See In re Acceleration of Broadband
Deployment by Improving Wireless Facilities Siting Policies, 29 F.C.C. Rcd. 12865 (Oct.
17, 2014), amended by 30 FCC Rcd. 31 (Jan. 5. 2015) (the “Order”).
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support structure that does not substantially change the physical dimensions of such
structure.” 47 C.F.R. § 1.40001(c). Approval must come promptly—within sixty days
from the date on which an applicant submits a request seeking approval, unless the
State or local government determines that the application is not in fact a covered eligible
facilities request. 47 C.F.R. § 1.40001(c)(2). The 60-day period (what the Company
Defendants refer to as the “shot-clock”) begins to run when the application is filed, and
may be tolled only by mutual agreement or in cases where the reviewing State or local
government determines that the application is incomplete. 47 C.F.R. § 1.40001(c)(3).
To toll the timeframe for incompleteness, the reviewing entity must provide
written notice to the applicant within 30 days of the receipt of the application, “clearly
and specifically delineating all missing documents and information.” 47 C.F.R. §
1.40001(c)(3)(i). The timeframe for review then begins again when the applicant makes
a supplemental submission in response to the State or local government’s notice of
incompleteness. Following a supplemental submission, the State or local government
will have 10 days to notify the applicant that the supplemental submission did not
provide the information identified in the original notice delineating missing information.
47 C.F.R. § 1.40001(c)(3)(ii) and (iii).
In a paragraph titled “Failure to Act”, the F.C.C. regulations provide that 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, “the request shall
be deemed granted,” but 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.” 47

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C.F.R. §1.40001(c)(4). In other words, the reviewing authority is not permitted to just sit
on its hands and do nothing, avoiding judicial review by preventing the exhaustion of
administrative remedies. Failure of the reviewing authority to act within the limited
period provided by neglecting to either grant or deny the application will cause the EFR
to be deemed granted by operation of law once the appropriate notice is given. See
generally, Montgomery Cty., 811 F.3d at 126 (explaining the “deemed grant” remedy).
Importantly, in addition to the “deemed grant,” the regulation specifically provides
for a judicial remedy, stating that “[a]pplicants and reviewing authorities may bring
claims related to Section 6409(a) in any court of competent jurisdiction.” 47 C.F.R. §
1.40001(c)(5). The F.C.C.’s Order explains the F.C.C.’s expectation that any legal
claims related to the Spectrum Act would fall into one of three categories:
First, if the State or local authority has denied the application, an applicant
might seek to challenge that denial. Second, if an applicant invokes its
deemed grant right after the requisite period of State or local authority
inaction, that reviewing authority might seek to challenge the deemed
grant. Third, an applicant whose application has been deemed granted
might seek some form of judicial imprimatur for the grant by filing a
request for declaratory judgment or other relief that a court might find
appropriate.
Order at ¶236. The three hypothesized types of legal claims are all in the form of
declaratory or injunctive relief. The Order makes no mention of even the possibility of a
damages award or an award of attorneys’ fees. And, of course, neither the Spectrum
Act, nor the implementing regulations, provides for an award of damages or attorneys’
fees.
c. The Existence of this Regulatory Enforcement Scheme precludes a
more expansive remedy under Section 1983.

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The Supreme Court in Abrams explained in detail that Ҥ 1983 does not provide
an avenue for relief every time a state actor violates a federal law.” Abrams, 544 U.S. at
119. And as the Supreme Court said in another setting, “[t]he express provision of one
method of enforcing a substantive rule suggests that Congress intended to preclude
others.” Id. at 121 (quoting Alexander v. Sandoval, 532 U.S. 275, 290 (2001)). “When
the remedial devices provided in a particular Act are sufficiently comprehensive, they
may suffice to demonstrate congressional intent to preclude the remedy of suits under
§1983.” Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20
(1981). The Supreme Court has also explained that in all cases where it has been held
that Section 1983 is available for violation of a federal statute, the Court has
emphasized that the statute at issue did not provide for a private judicial remedy (or, in
most of the cases, even a private administrative remedy) for the rights violated. Abrams,
544 U.S. at 121.
The statute at issue in the Abrams case was Section 704 of the
Telecommunications Act of 1996, Pub. Law 104-104 (“TCA”), codified at 47 U.S.C. §
332(c), which itself amended the Communications Act of 1934. As explained by the
Supreme Court in Abrams, § 332(c) was attempting to address the tension between the
need for expansion of national communication networks and local zoning practices.
Under § 332(c), local governments could not “unreasonably discriminate among
providers of functionally equivalent services,” § 332(c)(7)(B)(i)(II), could not limit the
placement of wireless facilities on the basis of the environmental effects of radio
frequency emissions, § 332(c)(7)(B)(iv), were required to act on requests to locate
wireless facilities “within a reasonable period of time,” and any decision denying such a

15

request was required to be in writing and supported by substantial evidence. §
332(c)(7)(B)(ii) and (iii). The statute also provided a judicial remedy – any person
adversely affected by a final decision or failure to act by a State or local government or
instrumentality was entitled, within 30 days of such action or failure to act, to
“commence an action in any court of competent jurisdiction.” § 332(c)(7)(B)(v). And
once a lawsuit is filed, the court is instructed to “hear and decide” the claim “on an
expedited basis.” Id. The remedies available under the TCA do not include
compensatory damages and “certainly do not include attorney’s fees and costs.”
Abrams, 544 U.S. at 123. The Supreme Court in Abrams noted, in contrast, that a §
1983 action can be brought much later than 30 days after the final action, need not be
heard and decided on an expedited basis, and the successful plaintiff may recover not
only damages but reasonable attorneys fees and costs under 42 U.S.C. § 1988. Id.
The Supreme Court in Abrams also took care to emphasize that liability for
attorneys’ fees in the context of a suit by a wireless company against a local
government “would have a particularly severe impact,” making “local governments liable
for the (often substantial) legal expenses of large commercial interests for the
misapplication of a complex and novel statutory scheme.” Abrams, 544 U.S. at 123-24
(citing Nextel Partners Inc. v. Kingston Twp., 286 F.3d 687, 695 (3d Cir. 2002) (“TCA
plaintiffs are often large corporations or affiliated entities, whereas TCA defendants are
often small, rural municipalities”)).
The Abrams decision posited that the refusal to attach attorneys’ fees to the
remedy created in the TCA itself represented a congressional choice—one not to be
evaded by resort to § 1983. In denying a § 1983 remedy, the Abrams court found that

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“[e]nforcement of § 331(c)(7) through § 1983 would distort the scheme of expedited
judicial review and limited remedies created by § 332(c)(7)(B)(v).” 544 U.S. at 127.
In the case at bar, the allegedly infringed federal right about which the Defendant
Companies complain is the right to make an insubstantial change to an existing cellular
facility. The purpose of both the statute creating that right (47 U.S.C. § 1455(a)(1)), and
the regulation implementing the statute (47 C.F.R. § 1.40001), is generally the same as
that reflected in § 332(c)(7) of the Telecommunications Act – the quicker approval of
and installation of wireless and cellular technology around the country, while at the
same time respecting certain limited esthetic and historic concerns of local
governments. Insubstantial changes to existing facilities are not to be unduly delayed by
local zoning processes, but substantial changes in size (as defined in the F.C.C.’s
regulation), as well as changes affecting the “stealth” features of an existing facility, are
not to be subject to the “deemed grant” remedy, and may be subject to local zoning
ordinances.
Congress passed Section 6409(a) of the Spectrum Act in 2012. The provision is
skeletal, consisting of essentially one substantive sentence (along with the definition of
“eligible facilities”). It contains no explicit enforcement mechanism, but neither does it
authorize a claim for damages or attorneys’ fees for a violation by a State or local
municipality. Instead, implementation and enforcement of the Spectrum Act was
delegated by Congress to the F.C.C., and a violation of the Spectrum Act was deemed
to be a violation of the Communications Act of 1934. See 47 U.S.C. § 1403.
It cannot be disputed that the Spectrum Act was adopted in 2012 against the
historic backdrop of the TCA of 1996, with the intent of modifying the balance in the

17

TCA between the delay inherent with State or municipal permit approvals and the need
to make timely, insubstantial changes to pre-existing facilities. But there is no indication
that Congress, as a matter of policy, intended for the Spectrum Act to so severely tip the
balance in favor of wireless companies that they should be awarded damages and
attorneys fees for a mistaken municipal decision. As the Supreme Court said in
Abrams, assessing damages and attorneys fees would mean that municipalities could
be held liable for significant attorneys’ fees and damages awards arising merely from
the honest “misapplication of a complex and novel statutory scheme.” Abrams, 544
U.S. at 123. Just the threat of a damages and attorneys’ fees award might cause a
municipality to improperly concede where there would otherwise be a legitimate basis
for denying a proposed wireless facility improvement.
The Supreme Court decided Abrams in 2005. In passing the Spectrum Act,
Congress would have been aware of the holding in Abrams that violations by local
governments of 47 U.S.C. § 332(c)(7) were not to be enforced by resort to § 1983. And
yet, Congress did not provide for a § 1983 remedy in the Spectrum Act. The F.C.C.’s
regulations implementing the Spectrum Act, which provide for the specific remedy of
deemed grant (and the accompanying right to bring a declaratory judgment enforcement
action), also were adopted with knowledge that the Supreme Court had determined that
§ 1983 was not a remedy available to enforce the provisions of the Telecommunications
Act. And the F.C.C. elected to not include any damages or attorneys’ fee provision in its
regulatory enforcement mechanism for the Spectrum Act.
Finally, the Company Defendants conceded at oral argument that no court
anywhere has imposed § 1983 liability for a violation of the Spectrum Act. In light of the

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Supreme Court’s holding in Abrams, and absent a contrary statutory or regulatory
directive, there is no basis for imposing liability under § 1983 in this case.
4. Conclusion
For these reasons, and because of the precedent set by Abrams, I conclude that
enforcement of the Spectrum Act through a § 1983 claim would distort the enforcement
scheme of “deemed grant” and judicial review which was created by the F.C.C.’s
rulemaking process after appropriate delegation by Congress. I therefore
RECOMMEND that Counterclaim Two of the Company Defendants’ Counterclaims be
DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
BY THE COURT

Date: December 18, 2018
Denver, Colorado

N. Reid Neureiter
United States Magistrate Judge
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