T-Mobile South, LLC v. City of Milton, Georgia

Filing 39

ORDER granting 35 Plaintiff's Motion for Reconsideration 34 and Motion to Reopen the Case. Plaintiff requests this Court to enter an injunction that would require the City to grant the requested permits without unreasonable conditions. The Court PERMANENTLY ENJOIN the Defendant from denying the Plaintiff's applications, subject to the Plaintiff producing proper wind-load certifications for each site. Signed by Judge Richard W. Story on 12/28/11. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

T-MOBILE SOUTH LLC,
Plaintiffs,
v.
CITY OF MILTON, GEORGIA,
Defendant.

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CIVIL ACTION NO.
1:10-CV-1638-RWS

ORDER
This case comes before the Court on Plaintiff’s Motion for
Reconsideration [35] and Motion to Reopen the Case [34]. On June 24, 2011,
this Court entered an order finding that the Defendant had violated the
Telecommunications Act (“TCA”) by failing to issue a written decision on all
three of Plaintiff’s monopole telecommunications tower applications. Dkt. No.
[33] at 4-7. However, the Court declined to issue a ruling on whether
Defendant’s decisions were supported by substantial evidence because by not
obtaining a written decision, the Court was “unable to readily discern which
motivation the City Council actually relied upon.” Id. at 7. Instead, the Court

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remanded the matter to the City of Milton to “adequately state in writing the
basis of its denial.” Id. at 8. In a footnote, the Court advanced a concern that,
under the City’s ordinance scheme, the Plaintiff’s failure to attach wind-load
certifications may well have violated the City’s ordinance and invalidated the
applications. See id. at 7 n.3. Following this ruling, the Court administratively
closed the action and stated the Plaintiff could move to reopen the matter if it
wished to challenge the Defendant’s decisions. Id. at 8.
The Plaintiff now moves the Court to reconsider its remand order and
asks for an injunction that would require the Defendant to “grant the requested
permits, without unreasonable conditions.” Def.’s Reply, Dkt. No. [37] at 9.
Under the Local Rules of this Court, “[m]otions for reconsideration shall not be
filed as a matter of routine practice[,]” but rather, only when “absolutely
necessary.” LR 7.2(E), NDGa. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
Murphy, 246 F. Supp. 2d 1256,1258-59 (N.D. Ga. 2003). However, a motion
for reconsideration may not be used “to present the court with arguments
already heard and dismissed or to repackage familiar arguments to test whether

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the court will change its mind.” Id. at 1259. Furthermore, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995 ), aff’d , 87 F.3d 1242 (11th Cir. 1996).
Plaintiff argues that the Court’s decision to remand was a “clear error of
law.” Namely, the Defendant argues that remanding is contrary to the TCA’s
requirement that challenges be heard on an “expedited basis.” 47 U.S.C. §
332(c)(7)(B)(v) (“The court shall hear and decide such action on an expedited
basis.”). And that by allowing the City a second chance, the Court would be
promoting an iterative process whereby the provider’s application could be
bounced back-and-forth from the City to the Court, all the while working as a
delay on the application contrary to the statute’s expressed mandate. See
Bellsouth Mobility Inc. v. Gwinnett Cnty., Ga., 944 F. Supp. 923, 929 (N.D.
Ga. 1996) (“In the court's view, simply remanding the matter to the board of
commissioners for their determination would frustrate the TCA's intent to
provide aggrieved parties full relief on an expedited basis.”); AT&T Wireless
PCS, Inc. v. City of Chamblee, 10 F. Supp. 2d 1326, 1334 (N.D. Ga. 1997)

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(“The Court finds that a remand would be a waste of time and would frustrate
the Telecom Act's direction to expedite these proceedings.”) (internal
quotations omitted). Moreover, the Defendant argues that the Eleventh Circuit
has stated that municipalities cannot “rely on rationalizations constructed after
the fact” which they would be tempted to do if given another “bite at the apple.”
See Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1220 n.4 (11th Cir.
2002) (stating that a Board could not create reasons to support substantial
evidence after the commencement of the action and that the Board must present
their denial reasons in a written record.).
Defendant counters that remanding this action is consistent with the TCA
because the TCA does not set a specific remedy for its violations but instead
confers discretion on the district court to fashion appropriate relief. See 47
U.S.C. § 332(b)(7)(B)(v) (not stating a remedy); Preferred Sites, LLC, 296 F.3d
at 1221(The TCA “does not specify the appropriate remedy if a court of
competent jurisdiction determines a state or local authority violated the
requirements contained therein.”). As well, remanding the action for the City to
state with particularity why it did what it did is not a post-hoc rationalization
because the underlying record is not altered; rather, the City is simply providing

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clarity as to its rationale. Defendant also argues that when there is a potentially
valid basis for the denial, the Court should afford deference to the local
government and remand. Pl.’s Opp., Dkt. No. [36] at 4 (citing AT&T Wireless
Servs. of Fla. v. Orange Cnty., 982 F. Supp. 856861 (M.D. Fla. 1997) (finding
that because the plaintiff’s application clearly did not comply with the
defendant’s scheme, the court would remand to the county to state the basis for
its denial even though the county violated the writing requirement)).
The Court finds that the Plaintiff’s argument is superior and will
reconsider its prior order. The Court agrees that to allow a remand is to
encourage local governments to issue inadequate denials so that they will be
able to continue to frustrate expediency by getting a second bite at the apple.
Remanding, even in a case such as this where there is some evidence of a
legitimate denial-reason, is counter to Congress’ clear mandate of expedient
review and creates improper incentives. Local governments are charged with
following the TCA, and the courts are charged with making sure their process is
proper. See Preferred Sites, LLC, 296 F.3d at 1215-16 (“By structuring the
TCA in this manner, Congress explicitly preserved local zoning authority over
the siting of wireless facilities, while permitting judicial oversight as to the

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manner in which such decisions are made.”). And wireless providers should not
have to come to the Court more than once per application. Thus, the Court will
GRANT Plaintiff’s Motion for Reconsideration [35] and Motion to Reopen the
Case [34].
Turning to the appropriate remedy, Plaintiff requests this Court to enter
an injunction that would require the City to grant the requested permits without
unreasonable conditions. As this court has noted before, “Defendant[’s] failure
to provide plaintiff with a written explanation of its denial is sufficient in and of
itself to reverse the Board’s decision under the Telecommunications Act.”
Powertel/Atlanta, Inc. v. Clayton Cnty., No. 1:98-CV-0375-JEC, at *11 (N.D.
Ga. May 20, 1998); see Preferred Sites LLC, 296 F.3d at 1215 (“decisions to
deny approval for the placement, construction, or modification of personal
wireless service facilities must be both in writing and supported by substantial
evidence contained in a written record”) (emphasis added) (internal quotation
omitted). Thus, having found that the Defendant has violated the writing
requirement of the TCA, Dkt. No. [33], the Court also finds that this conduct
warrants an injunction.
Under the principles of equity, a plaintiff requesting a permanent

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injunction must satisfy a four-factor test:
(1) that [the plaintiff] has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy
in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.

eBay, Inc . v. MercExchange, L.L.C. , 547 U.S. 388, 391(2006). Thus, the
standard for a permanent injunction is essentially the same as for a preliminary
injunction except that the movant must show actual success on the merits
instead of a likelihood of success on the merits. Siegel v. Lepore, 234 F.3d
1163, 1213 (11th Cir. 2000).
As determined above, the Plaintiff has shown actual success on the
merits. Moreover, there are no adequate remedies at law and the balance of
hardships favor the Plaintiff as the only way to achieve better cell service is to
install additional towers. Finally, the public interest will not be disserved as the
public will be able to enjoy stronger cell reception, an interest which Congress
has determined is valuable. Therefore, the Court will PERMANENTLY
ENJOIN the Defendant from denying the Plaintiff’s applications, subject to the
Plaintiff producing proper wind-load certifications for each site.

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SO ORDERED this 28th day of December, 2011.

________________________________
RICHARD W. STORY
United States District Judge

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