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

Filing 73

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying without prejudice 49 Defendants MOTION for Judgment on the Pleadings, by Magistrate Judge N. Reid Neureiter on 12/19/2018. (slibi, )

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
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. #49)

N. Reid Neureiter
United States Magistrate Judge
Now before the Court is the Defendants Crown Castle USA, Inc. and T-Mobile
West LLC’s (collectively, the “Company Defendants”) Motion for Judgment on the
Pleadings. (Dkt. #49.) The Plaintiff, the Board of County Commissioners for Douglas
County, Colorado (“Douglas County”), filed a response to the Motion of August 13,
2018. (Dkt. #52.) The Motion was then referred to me by Judge Raymond Moore on
August 14, 2018. (Dkt. #54.) The Company Defendants filed their Reply on September
5, 2018. (Dkt. #59.)
The Court scheduled oral argument on the Motion for Judgement on the
Pleadings for November 14, 2018. The Court heard oral argument and took the matter
under advisement. (Dkt. #67.) Prior to the oral argument, on November 2, 2018, the
Parties had filed their respective Motions for Summary Judgment. See Company

Defendants’ Motion for Summary Judgment (Dkt. #61) and Douglas County’s Motion for
Summary Judgment (Dkt #62). On the same day that I heard argument, Judge Moore
referred the summary judgment motions to me for recommendation. (Dkt. #66.) The
Parties filed their respective briefs in opposition to summary judgment on December 17,
2018 (Dkt. #69 and Dkt. #70). I have scheduled argument on the Parties’ respective
Motions for Summary Judgment for January 9, 2019. (Dkt. #68.)
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 facility 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 for improved 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.
Specifically, the Company Defendants argue that pursuant to Section 6409(a) of
the Middle Class Tax Relief and Job Creation Act (the “Spectrum Act”), codified at 47
U.S.C. § 1455(a)(1), Douglas County was required to approve an application for an
Eligible Facility Request (“EFR”) submitted by the Company Defendants. An EFR is an

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application to make a change to an existing wireless tower or base station that does not
substantially change the existing facility’s physical dimensions. 47 U.S.C. § 1455(a)(1).
Federal regulations adopted by the F.C.C. to implement the Spectrum Act define when
a proposed improvement should be deemed a substantial change. See 47 C.F.R. §
1.40001(b)(7). The Company Defendants say their proposed modification meets the
regulation definition. Per regulation, a State or local government “may not deny and
shall approve” any EFR that does “not substantially change the physical dimensions” of
the existing structure. 47 C.F.R. § 1.40001(c). The Company Defendants further argue
that because Douglas County failed to either grant or deny their application within the
time prescribed by the F.C.C.’s regulations, the application should be “deemed granted”
as a matter of law. See 47 C.F.R. § 1.40001(c)(4) (providing for the “deemed granted”
remedy in the event the reviewing State or local government fails to approve or deny a
request within the timeframe provided for review).
For its part, Douglas County in its Complaint alleges that it did in fact timely deny
the Company Defendants’ application, and did so because the proposed facility
improvements would change “stealth” concealment characteristics of the original facility.
According to Douglas County, the original facility was supposed to look like an
unadorned utility pole, and the proposed modifications would made it look like a
“marshamallow on a stick,” negating the concealment characteristics of the original
design.
Douglas County accurately points out that the F.C.C.’s definition of what
constitutes a “substantial change” includes any modification that “changes the physical

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dimensions of an eligible support structure” in a way that “would defeat the concealment
elements of the eligible support structure.” 47 C.F.R. § 1.40001(b)(7)(v).
To summarize the two competing positions, the Company Defendants allege that
they submitted a valid EFR application consistent with federal regulations, that Douglas
County refused to act on the application, and the application either should be deemed
granted because of Douglas County’s inaction, or should be found as a matter of law to
be an insubstantial change in physical characteristics that must be granted. By contrast,
Douglas County’s position, as articulated in its Complaint, is that the application was
never a valid EFR in the first place because it proposed to change concealment
characteristics of the existing facility, and Douglas County properly informed the
Company Defendants that it had denied the application. According to Douglas County,
the application was denied, and should not be deemed granted because it was never a
valid EFR in the first place.
2. It is recommended that the Company Defendants’ Motion for Judgement on
the Pleadings be denied without prejudice to the legal arguments contained
therein.
In the Company Defendants’ Motion for Judgment on the Pleadings, they argue
that the issues raised by Douglas County’s complaint and Defendant Companies
counterclaims “can be resolved wholly as a matter of law” and therefore the Court
should grant judgment on the pleadings. (Dkt. #49 at 2.) Candidly, it does not seem
possible that the case could or should be resolved on a motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate
only if the plaintiff’s complaint fails to state a claim for relief that is plausible on its face.
Myers v. Koopman, 738 F.3d 1190, 1184 (10th Cir. 2013). Federal courts generally

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follow a “restrictive standard” in ruling on motions for judgment on the pleadings, and
limit its use to cases “in which there is no substantive dispute that warrants the litigants
and the court proceeding further.” 5C Wright & Miller, Federal Practice and Procedure
Civil 3d §1368 at 222 (3d ed. 2004). And in assessing a motion for judgment on the
pleadings pursuant to Rule 12(c), a court must accept the well-pleaded allegations of
the complaint as true and construe them in the light most favorable to the non-moving
party which, in this case, is Douglas County. Realmonte v. Reeves, 169 F.3d 1280,
1283 (10th Cir. 1999).
The parties have made conflicting allegations and assertions about what may
have happened in terms of communicating or not communicating Douglas County’s
denial (or non-denial) of the EFR application. The Parties also make conflicting
allegations about whether the original facility had stealth concealment characteristics,
and whether the Company Defendants’ proposed modifications would materially change
or negate those concealment elements. The federal regulations suggest that if the
original facility was purposefully built with concealment characteristics, and the
proposed modification would change those characteristics, then it is not a valid EFR. 47
C.F.R. § 1.40001(b)(7)(v).
Having made a preliminary review of the competing cross-motions for summary
judgment, it also appears that the legal arguments presented in those motions are very
similar (if not identical) to the arguments presented on the instant Motion for Judgment
on the Pleadings. But it appears that many of the factual allegations in the respective
complaints have been fleshed out by the evidentiary materials submitted with the
summary judgment motions. Because the Court has already scheduled a hearing on the

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cross-motions for summary judgment, and because the Parties have already submitted
materials purporting to show the absence of genuine issues of material fact, it makes
the most sense at this time to deny the Defendant Companies’ Motion for Judgment on
the Pleadings without prejudice to the legal arguments raised therein. That way, the
Court will be able to assess the legal arguments raised by both sides in the full context
of the alleged undisputed material facts presented in the competing summary judgment
motions.
3. Conclusion
For the reasons stated above, it is RECOMMENDED that the Company
Defendants’ Motion for Judgement on the Pleadings (Dkt. #49) be DENIED without
prejudice to the legal arguments raised therein. The issues raised in the Motion for
Judgment on the Pleadings are better addressed via the Parties’ summary judgment
motions.

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.

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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 19, 2018
Denver, Colorado

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N. Reid Neureiter
United States Magistrate Judge

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