New Cingular Wireless PCS, LLC v. Stoddard, Town of, et al
Filing
68
ORDER denying 44 Motion for Summary Judgment; denying 47 Motion for Summary Judgment; denying as moot 59 Motion to Strike Declaration of Fred Ward [54-1]. Parties to confer and submit a joint proposed schedule for the remainder of the case by April 12, 2013. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
New Cingular Wireless PCS, LLC
v.
Civil No. 11-cv-388-JL
Town of Stoddard, New
Hampshire, and Zoning Board of
Adjustment of the Town of
Stoddard, New Hampshire
SUMMARY ORDER
This case involves the Federal Communications Commission’s
so-called “Shot Clock Ruling,” which interprets § 704(a) of the
Telecommunications Act of 1996.
Under § 704(a), a local
government must act on an application to construct a wireless
telecommunications facility “within a reasonable period of time.”
47 U.S.C. § 332(c)(7)(B)(ii).
Per the Shot Clock Ruling, “a
reasonable period of time” is presumptively no more than 150
days, although that timeframe can be extended with the
applicant’s consent.
See In the Matter of Petition for
Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B)
to Ensure Timely Siting Review, 24 F.C.C.R. 13994, 14012-13, ¶¶
45, 49 (FCC 2009).
The Town of Stoddard and its zoning board of
adjustment approved plaintiff New Cingular Wireless PCS, LLC’s
application within a deadline consistent with the Shot Clock
Ruling.
Not long thereafter, though–-and after the deadline
expired--the board voted to grant rehearing of its approval, see
N.H. Rev. Stat. Ann. §§ 677:2, 677:3, prompting New Cingular to
file this action seeking to recover for the defendants’ alleged
violation of § 704(a).
This court has jurisdiction under 28
U.S.C. § 1331 (federal question).
Pursuant to their agreed-upon schedule, see Agreed Proposed
Scheduling Order (document no. 30), the parties have now filed
cross-motions for summary judgment, each side arguing that the
undisputed facts entitle it to judgment as a matter of law.
Fed. R. Civ. P. 56.
They have declined oral argument.
See
After
careful consideration of the parties’ memoranda and the evidence
of record, the court denies both motions.
As discussed in this court’s ruling on the defendants’
motion to dismiss, and as alluded to above, the Shot Clock Ruling
creates only a presumption that a local zoning authority’s
failure to act within its deadlines is “unreasonable” under
§ 704(a).
New Cingular Wireless PCS, LLC v. Town of Stoddard,
853 F. Supp. 2d 198, 203 (D.N.H. 2012).
The Ruling explains that
“‘the State or local authority will have the opportunity, in any
given case that comes before a court, to rebut the presumption
that the established timeframes are reasonable’ based upon the
‘unique circumstances in individual cases.’”
Id. (quoting Shot
Clock Ruling, 24 F.C.C.R. at 14010-11, ¶¶ 42, 44).
2
The view of the Court of Appeals for the Fifth Circuit, upon
which both sides rely, is that the effect of this presumption is
to shift to the local zoning authority the burden of producing
evidence that its delay was reasonable.
See City of Arlington v.
FCC, 668 F.3d 229, 256-57 (5th Cir. 2012).1
Once it has produced
such evidence, “the presumption evaporates, and the evidence
rebutting the presumption, and its inferences, must be judged
against the competing evidence and its inferences to determine
the ultimate question at issue.”
marks and citations omitted).
Id. at 256 (internal quotation
“[T]he ultimate burden of
persuasion remains with the wireless facilities provider to
demonstrate that the government unreasonably delayed action on an
application.”
Id. at 257.
Thus,
the wireless provider would likely be entitled to
relief if it showed a state or local government’s
failure to comply with the time frames and the state or
local government failed to introduce evidence
demonstrating that its delay was reasonable despite its
failure to comply. But, if the state or local
government introduced evidence demonstrating that its
delay was reasonable, a court would need to weigh that
1
The Supreme Court granted certiorari in City of Arlington,
see 133 S. Ct. 524, and heard argument on January 16, 2013. Its
decision, which had not yet been issued as of the time of this
writing, may ultimately render the Shot Clock Ruling invalid.
This court gave the parties the opportunity to request relief in
light of this development, see Order of Oct. 9, 2012, but both
parties requested that the court proceed to address their motions
on the assumption that the Shot Clock Ruling is valid and
applicable here.
3
evidence against the length of the government’s delay–as well as any other evidence of unreasonable delay
that the wireless provider might submit–-and determine
whether the state or local government’s actions were
unreasonable under the circumstances.
Id.; see also Bell Atl. Mobile of Rochester L.P. v. Town of
Irondequoit, 848 F. Supp. 2d 391, 399-400 (W.D.N.Y. 2012).
Working within that framework, the court cannot grant
summary judgment for either side.
The zoning board, by granting
rehearing, effectively vacated its previous approval of New
Cingular’s application, leaving New Cingular without a
conclusive resolution of that application within the Shot Clock
Ruling’s deadline, as the Ruling contemplates.
Stoddard, 853 F. Supp. 2d at 203-04, 206.
See Town of
The defendants have,
however, identified evidence that would enable a reasonable
finder of fact to conclude that the board’s delay in reaching a
conclusive resolution was reasonable despite noncompliance with
the Shot Clock Ruling’s deadline.
Among other things, the record confirms that the board’s
consideration of New Cingular’s application was careful and
conscientious (notwithstanding the actions of one of the board
members, upon which New Cingular focuses with single-minded
intensity), and proceeded at a steady pace without repetitive
inquiry into areas already addressed.
Compare N.Y. SMSA Ltd.
P’ship v. Town of Riverhead, 45 Fed. Appx. 24, 27 (2d Cir. 2002)
4
(delay not unreasonable where “the Town made steady progress in
acting on the application”)2 with MetroPCS N.Y., LLC v. City of
Mount Vernon, 739 F. Supp. 2d 409, 424 (S.D.N.Y. 2010) (delay
unreasonable where city “repeatedly request[ed] unnecessary
information and belabor[ed] issues already resolved”).
The
record also establishes that some of the delay in reaching an
initial determination on New Cingular’s application–-which
contributed to the lateness of its grant of rehearing–-was
attributable to New Cingular itself.
Cf. N.Y. SMSA Ltd. P’ship
v. Town of Riverhead Town Bd., 118 F. Supp. 2d 333, 341
(E.D.N.Y. 2000), aff’d, 45 Fed. Appx. 24 (2d Cir. 2002) (delay
not unreasonable where due in part to requests from provider’s
counsel); Cellular Tel. Co. v. Zoning Bd. of Adjustment, 24 F.
Supp. 2d 359, 365 (D.N.J. 1998), rev’d in part on other grounds,
197 F.3d 64 (3d Cir. 1999) (similar).
And, though New Cingular
derides the board’s stated reasons for granting rehearing as
“spurious”–-a characterization that may well be true–-the record
permits multiple conclusions as to the validity of those
reasons.
2
The court recognizes that this case (and others cited
infra) predates the Shot Clock Ruling. Nothing in the Shot Clock
Ruling, however, suggests that it was intended to displace preexisting case law regarding what grounds for delay are, and are
not, “reasonable” within the meaning of § 704(a)–-nor has New
Cingular made that suggestion.
5
At the same time, however, the record evidence would also
justify a reasonable finder of fact’s conclusion that the
Board’s delay was not reasonable.
It would be possible to find,
for example, that the grant of rehearing “was merely a delaying
tactic as a result of vocal opposition” to New Cingular’s
proposed facility.
See Bell Atl. Mobile of Rochester L.P. v.
Town of Irondequoit, 848 F. Supp. 2d 391, 402 (W.D.N.Y. 2012).
Several board members cited recalcitrant and obstructionist
behavior by board member Fred Ward, an opponent of the proposed
facility, when resigning from the board, and it is possible to
infer that this behavior (and the similar behavior of other
community members) similarly motivated the grant of rehearing.
As already noted, moreover, “the length of the government’s
delay” is a factor in determining reasonableness, City of
Arlington, 668 F.3d at 257, and here, New Cingular had no final
decision on its application in hand over three months after the
expiration of the Shot Clock Ruling’s presumptively reasonable
deadline.3
3
The defendants have also argued that New Cingular’s suit is
barred because it did not file suit “within 30 days after” the
expiration of the Shot Clock Ruling’s deadline. See 47 U.S.C.
§ 332(c)(7)(B)(v). As New Cingular notes, it could not have
brought an unreasonable delay claim within that time frame–-nor
would it have had any reason to–-because the board had voted to
approve its application. See Pl.’s Reply (document no. 58) at 910. New Cingular’s claim only ripened when the board later voted
6
The court’s inability to grant judgment for either party is
largely a function of the posture in which this case now comes
to the court.
Because the parties elected to file motions for
summary judgment under Rule 56, the court has no license to
choose among competing inferences and interpretations of the
facts.
See In re Varrasso, 37 F.3d 760, 764 (1st Cir. 1994)
(“[T]he undisputed facts require a choice between competing
inferences, and, since both inferences are plausible, the choice
cannot be made under the banner of summary judgment.”).
As the
Court of Appeals has counseled, “summary judgment is a useful
shortcut leading to final adjudication on the merits in a
relatively small class of cases.”
4 F.3d 53, 55 (1st Cir. 1993).
Stella v. Town of Tewksbury,
This is not one of those cases.
The parties’ respective motions for summary judgment4 are
therefore DENIED.
Plaintiff’s motion to strike the declaration
of Fred Ward5 is DENIED as moot, as the court did not consider
that declaration in rendering this decision.
The parties shall
confer and, on or before April 12, 2013, shall submit a joint
to grant rehearing, causing it to be left without a decision on
its application outside the Ruling’s deadline. This action was
filed within 30 days of the board’s grant of rehearing, and is
therefore timely under § 332(c)(7)(B)(v).
4
Document nos. 44, 47.
5
Document no. 59.
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proposed schedule for the remainder of this case, keeping in
mind 47 U.S.C. § 332(c)(7)(B)(v)’s preference for expeditious
resolution of Telecommunications Act cases.
Though the court
has no opinion as to how the case should proceed, the parties
may wish to consider the possibility of trying the case on a
stipulated record.6
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated: March 28, 2013
6
Defendants’ counsel appears before this court frequently.
As such, the court expects him to be familiar with and observe
the local rules of this court. Counsel is reminded that pursuant
to Local Rule 7.1(a)(3), “no memorandum in support of, or in
opposition to, a dispositive motion shall exceed twenty-five (25)
pages” without leave of court. Defendants’ overlong memorandum
in support of their motion for summary judgment violates this
rule. This is not an isolated occurrence; defendants’ counsel
has exceeded the Local Rules’ page limitations at least twice
before in cases before the undersigned. See Defs.’ Mem. in Supp.
of Mot. for Summ. J. (Sept. 4, 2009), Doe v. Friendfinder
Network, Inc., No. 07-cv-286; Def.’s Mem. in Supp. of Mot. for
Summ. J. (Nov. 30, 2006), USCOC of N.H. RSA #2, Inc. v. City of
Concord, No. 05-cv-268. To be sure, the violations in each of
these cases were de minimis. They nonetheless demonstrate a lack
of respect for this court’s rules and for opposing counsel who
attempt to comply with the court’s page limitation requirements.
While the court will take no remedial action for these repeated
transgressions, counsel is cautioned that future failures to
observe applicable page limitations may result in unfavorable
consequences. See L.R. 1.3(a).
8
cc:
Adam T. Kurth, Esq.
Melissa C. Allison, Esq.
Anne Robbins, Esq.
Stephen D. Anderson, Esq.
Jeffrey C. Spear, Esq.
John J. Cucchi (pro se)
Anne F. Cucchi (pro se)
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