Crown Castle Fiber LLC v. Charleston, City of

Filing 24

ORDER granting in part and denying in part 15 Motion for Partial Summary Judgment. Signed by Honorable David C Norton on February 15, 2021.(cdan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
CROWN CASTLE FIBER LLC,

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Plaintiff,
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vs.
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CITY OF CHARLESTON,
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Defendant.
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_______________________________________)

No. 2:20-cv-2692-DCN
ORDER

The following matter is before the court on plaintiff Crown Castle Fiber LLC’s
(“Crown Castle”) motion for partial summary judgment, ECF No. 15. For the reasons set
forth below, the court grants in part and denies in part the motion.
I. BACKGROUND
Crown Castle is a telecommunications services provider that seeks to install and
operate telecommunications facilities in public rights-of-way in the City of Charleston,
South Carolina (“the City”). In order to provide its services, Crown Castle uses fiber
optic lines and equipment figurations called “Nodes.” Nodes consist of various pieces of
equipment and are located on utility or streetlight poles. Individual Nodes are also
referred to as “small cells” or “small wireless facilities.” To construct its network and
facilities, Crown Castle needs authorization from the City. This case is the latest
manifestation of the long-standing dispute between Crown Castle and the City
concerning Crown Castle’s endeavor to obtain such authorization, which was the subject
of a previous lawsuit before this court, Crown Castle Fiber LLC v. City of Charleston,
2:17-cv-02562-DCN (“Crown Castle I”).

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The City’s standard process for telecommunications facilities in public rights-ofway is as follows. The entity seeking to install telecommunications facilities must obtain
an engineering permit from the Department of Public Service. Separately, the City’s
Design Review Committee (“DRC”) reviews and makes recommendations regarding the
aesthetics of the facilities. The DRC’s recommendation is required before the
Department of Public Service will issue the engineering permit. The City also requires
“franchise agreements,” sometimes referred to as “franchises,” for entities wishing to use
the City’s rights-of-way. These requirements apply to all entities, but the rights-of-way
at issue here include the use of existing utility poles, building new poles, and laying fiber
optic lines.
As the court explained in tedious detail in Crown Castle I, Crown Castle has been
engaged in efforts to deploy small cell facilities in the City since November 2014, and
throughout most of the process, the City has been less than accommodating to the point
of near-obstructionism. See Crown Castle I, ECF No. 97 at 2–6. In fairness to the City,
Crown Castle’s proposals involved new technologies with which the City was not
familiar, and City employees testified that the City was interested in learning more about
the technology and its impact before approving Crown Castle’s applications. Id., ECF
No. 79-7, Herdina Depo. 27:1–21. On September 22, 2017, Crown Castle filed Crown
Castle I, alleging that the City refused to process or deal with Crown Castle’s permit
applications and requests to establish telecommunications facilities in violation of 47
U.S.C. § 253. Id., ECF No. 1.
On June 22, 2018, the parties engaged in mediation and reached a Contingent
Memorandum of Understanding (“MOU”). The MOU provided a potential resolution of

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Crown Castle I subject to the City enacting a small cell ordinance (“the Small Cell
Ordinance”). On September 26, 2018, the Federal Communications Commission
(“FCC”) issued a declaratory ruling, In the Matter of Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. 9088 (2018),
with an effective date of January 14, 2019 (“FCC Declaratory Ruling”). At the time, the
City was still working on drafting the Small Cell Ordinance. Crown Castle then took the
position that various portions of the City’s draft version of the Small Cell Ordinance
would be illegal once the FCC Declaratory Ruling took effect. Pursuant to the MOU, on
November 27, 2018, the City adopted the Small Cell Ordinance. ECF No. 15-2.
Simultaneously, the City adopted the “Small Cell Infrastructure Right-of-Way Design
Guidelines,” which “establish general standards for [ ] Wireless Service Providers to
deploy and maintain wireless networks in the City[’s] Public Right[s] of Way . . . .” ECF
No. 15-3 at 2 (“Design Guidelines”). Through a letter dated November 27, 2018, Crown
Castle notified the City that it believed that the Small Cell Ordinance violated 47 U.S.C.
§ 253 as interpreted by the FCC.
Unable to resolve the dispute, Crown Castle filed an amended complaint on May
23, 2019, Crown Castle I, ECF No. 62, and a motion for summary judgment on June 24,
2019, id., ECF No. 67. In its motion for summary judgment, Crown Castle argued that
the City violated 47 U.S.C. § 253(a) as a matter of law by actually and effectively
prohibiting Crown Castle from providing telecommunications services, and that the City
failed to act in a timely manner on Crown Castle’s sixteen applications in violation of 47
U.S.C. § 332(c)(7)(B)(ii). Crown Castle sought an injunction requiring the City to accept

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Crown Castle’s applications and permit Crown Castle to install and maintain fiber optic
lines.
On March 23, 2020, the court granted Crown Castle’s motion for summary
judgment in part. Id., ECF No. 97 (the “Crown Castle I Order”). Specifically, the court
held that the City’s failure to act on Crown Castle’s applications within the appropriate
timeframe violated 47 U.S.C. § 332(c)(7)(B)(ii) and granted summary judgment in favor
of Crown Castle to that extent. The court rejected Crown Castle’s proposed remedy—
ordering the City to grant its applications—and instead directed the City to act on Crown
Castle’s sixteen then-pending applications within 90 days. Id. at 24. On June 22, 2020,
the City acted on Crown Castle’s sixteen applications. The instant dispute concerns the
City’s resolution of seven of those applications, four of which the City explicitly denied
and three of which the City conditionally granted.
On July 21, 2020, Crown Castle filed this action, claiming that: the City’s Small
Wireless Ordinance, as applied, violates 47 U.S.C. §§ 253 and 332(c)(7)(B)(i)(II) (Count
1); the denials effectively prohibit service in violation of 47 U.S.C. § 253 and 47 U.S.C
§ 332(c)(7)(B)(i)(II) (Counts 2 and 3); the City’s denials are not supported by substantial
evidence as required under 47 U.S.C § 332(c)(7)(B)(iii) (Count 4); and the City has failed
to timely act on three of the conditionally granted applications in violation of 47 U.S.C. §
332(c)(7)(B)(ii) (Count 5). ECF No. 1, Compl. On November 16, 2020, Crown Castle
filed the instant motion for partial summary judgment, requesting that the court enter
judgment in its favor on Counts 4 and 5. ECF No. 15. On December 14, 2020, the City
responded, ECF No. 17, and on January 1, 2021, Crown Castle replied, ECF No. 20. The

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court held a telephonic hearing on the motion on February 11, 2021. Thus, the motion
has been fully briefed and is now ripe for the court’s review.
II. STANDARD
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249. In so doing, the court must view the evidence in
the light most favorable to the non-moving party and draw all inferences in its
favor. Id. at 255.
“The party seeking summary judgment shoulders the initial burden of
demonstrating to the district court that there is no genuine issue of material fact.” Major
v. Greenville Hous. Auth., 2012 WL 3000680, at *1 (D.S.C. Apr. 11, 2012).
Nevertheless, “when a properly supported motion for summary judgment is made, the

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adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). The plain language of Federal Rule of Civil
Procedure 56(c) “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[C]onclusory allegations or denials, without more, are insufficient to preclude
the granting of the summary judgment motion.” Major, 2012 WL 2000680, at *1.
III. DISCUSSION
Crown Castle argues that summary judgment is warranted on its fourth and fifth
causes of action because “the City’s denial of the four applications was not supported by
substantial evidence in the written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii),
and for the three [conditionally granted] applications . . . , the City failed to act in a
timely manner, as required by 47 U.S.C. § 332(c)(7)(B)(ii).” ECF No. 15-1 at 1. The
court discusses the four denied applications first, then turns to the three applications that
the City conditionally granted. For the reasons that follow, the court denies Crown
Castle’s motion with respect to the denied applications and grants the motion with respect
to the conditionally granted applications.
A. Denied Applications
Of the sixteen applications at issue in Crown Castle I, the City explicitly denied
four. Those four denied applications represent Nodes designated as CHS-026, CHS-027,
CHS-028, and CHS-032. Crown Castle argues that the City’s denial of those applications
violates § 332(c)(7)(B)(iii) of the Telecommunications Act because the denials “have no

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basis [in] the City’s own [Small Cell] Ordinance and are not supported by substantial
evidence in the record[.]” ECF No. 15-1 at 18. The court disagrees on both fronts.
The Telecommunications Act of 1996 (“TCA”) seeks “to limit the ability of state
and local governments to frustrate the [ ] national purpose of facilitating the growth of
wireless telecommunications, [while] preserv[ing] state and local control over the siting
of towers and other facilities that provide wireless services.” T-Mobile Ne. LLC v. City
Council of City of Newport News, Va., 674 F.3d 380, 385 (4th Cir. 2012) (quoting 360°
Commc’ns Co. of Charlottesville v. Bd. of Sup’rs of Albemarle County, 211 F.3d 79, 86
(4th Cir. 2000)). “To strike this balance, the [TCA] preserves the power of the local
zoning authority ‘over decisions regarding the placement, construction, and modification
of personal wireless service facilities,’ while placing certain limits on that authority.” Id.
(quoting 47 U.S.C. § 332(c)(7)(A)); see also Preferred Sites, LLC v. Troup Cty., 296 F.3d
1210, 1214 (11th Cir. 2002) (“Congress . . . acknowledged [that] there are legitimate
State and local concerns involved in regulating the siting of [small cell wireless]
facilities[,] such as aesthetic values and the costs associated with the use and maintenance
of public rights-of-way.”).
To that end, § 332(c)(7)(B)(iii) of the TCA provides that “[a]ny decision by a
State or local government or instrumentality thereof to deny a request to place, construct,
or modify personal wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). To
determine whether a local body’s denial of a service provider’s application comports with
§ 332(c)(7)(B)(iii), courts in the Fourth Circuit employ a two-pronged inquiry. First, the
court “look[s] to the applicable zoning ordinance to determine whether the reasons for the

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City’s decision are contemplated therein.” Newport News, 674 F.3d at 387. Where the
local body’s decision is well-rooted in applicable local law, the court must then
“determin[e] whether substantial evidence supports the denial . . . .” Id. at 388. Crown
Castle argues that the City’s denial of four of its applications fails on both prongs. For
the reasons set forth below, the court disagrees.
1. Basis in Local Law
With respect to the first prong, Crown Castle first argues that the City’s denials
“conflict with the [Small Cell] Ordinance by vesting in the Mayor final, unilateral
authority to grant or deny the application.” ECF No. 15-1 at 19. Crown Castle explains
that the process by which the City denied the applications runs afoul of local law because
the Small Cell Ordinance authorizes the DRC to grant or deny small wireless facility
permit applications, and, here, according to Crown Castle, the denials were based upon
the Mayor of the City’s unilateral view. There are two problems with Crown Castle’s
argument, the first of which is rooted in a misunderstanding of the nature of court’s
limited review. Section 332 of the TCA authorizes the court to review the decision of a
local governing body and determine whether “the reasons for [the body’s] decision are
contemplated” by local law. Newport News, 674 F.3d at 387. In other words, the court
can ask only whether the reasons for the denial comport with some codified standard.
Here, Crown Castle asks the court to do something different—it argues that the court
should invalidate the decision of the City because the process by which the City reached
its decision does not comport with local law. But the plain text of § 332 clearly limits the
court’s review to the “why” of a denial; the “how” of a denial is simply beyond the scope
of the court’s review. As such, the court cannot scrutinize the process by which Crown

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Castle’s application was denied; it can only review whether the reasons for the denial are
rooted in local law and supported by substantial evidence. See T-Mobile Cent., LLC v.
Unified Gov’t of Wyandotte Cty., Kansas City, Kan., 546 F.3d 1299, 1306–07 (10th Cir.
2008) (“Judicial review under [§ 332] is quite narrow.”).
Moreover, in Crown Castle I, the court expressed skepticism with respect to
Crown Castle’s process argument:
[T]he court is not entirely convinced that the Mayor’s involvement is
improper. At the hearing on the motion, counsel for the City explained that
the DRC was designed for the sole purpose of making recommendations to
the Mayor about whether or not design-related elements of right-of-way
changes should be approved. ECF No. 90, Tr. 38:19–23. Counsel explained
that no DRC item gets approved without mayoral approval, so that if the
Small Cell Ordinance reads that DRC approval is required, it is implied that
mayoral approval is also required.
Crown Castle I Order at 16–17 n.3. As such, the court declines to scrutinize the process
by which the City denied the applications.
Next, Crown Castle argues that the denials “are defective because the City relies
on reasons that are not valid criteria for evaluation under the City’s [Small Cell]
Ordinance or Design Guidelines.” ECF No. 15-1 at 19. Crown Castle explains that the
City’s denials do not cite substantive provisions of the Small Cell Ordinance or the
Design Guidelines but instead rely upon “provisions of the Design Guidelines and [Small
Cell] Ordinance that set forth broad statements of purposes or goals.” Id. at 20. As one
epitomic example, the City’s denial of Crown Castle’s application for Node CHS-026
states:
The DRC finds that [the] modified application for the proposed placement
of a new Tower as shown on Exhibit A should be denied. The Proposed
location of a new Tower is inconsistent with the overall design review
guidelines as well as the findings and provisions of [the Small Cell
Ordinance]. Specifically, it does not “preserve the character of the
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neighborhood” in issue. (Design Guidelines 1(A)). It fails to minimize the
visual impact and bulk in the right-of-way by architecturally integrating the
proposed tower with its surroundings. (Ordinance 2018-154 (1) –
Findings). Likewise, it does not provide a uniform look and feel with the
adjoining historical area in that it stands out significantly when compared
to its historical setting. (Id. At Finding 5). This is the very situation the
City sought to avoid in adopting [the Small Cell Ordinance] and by
attempting to minimize to the maximum extent the use of new Towers in
the Peninsula District of the City.
ECF No. 15-15 at 3 (citations in original). This denial, like the others, relies on
provisions within the “Findings” section of the Small Cell Ordinance and the
“Background and Purpose” section of the Design Guidelines. According to Crown
Castle, the City may not rely upon these provisions of local law and must instead base
denials on a law’s more substantive provisions.
The court disagrees, as have other courts who have considered the issue. In Se.
Towers, LLC v. Pickens Cty., Ga., the Northern District of Georgia considered a county
commissioner’s denial of a telecommunications service provider’s application for a tower
permit. 625 F. Supp. 2d 1293 (N.D. Ga. 2008). There, like here, the local governmental
body denied the provider’s application based upon the “General Purpose” section of the
applicable local ordinance. Also like here, the provider argued that the local
decisionmaker’s reliance on a “Goals” provision violated § 332, and, like this court, the
court in Pickens County disagreed:
In this case, the Commissioner denied SE Towers’ application for a tower
permit after concluding that the proposed tower would have a material
visual impact on the surrounding Tate Historical District. [T]he
Commissioner had the authority to do so based upon the general purpose
and specified guidelines provided in Section 66–75 of the Pickens County
Tower Ordinance. Although Section 66–75 characterizes the guidelines to
be applied to permit decisions as ‘goals’ as opposed to ‘factors,’ in the
Court’s view, the semantical distinction does not negate the authority
contained in Section 66–75 and render its guidance concerning the location
of cell towers meaningless and mere surplusage. To the contrary, Section
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66–75 provides specific guidelines to consider in the siting of towers, giving
effect to the purpose of the Pickens County Tower Ordinance. Nor does it
conflict with the TCA, because “[n]othing in the Telecommunications Act
forbids local authorities from applying general and nondiscriminatory
standards derived from their zoning codes, and . . . aesthetic harmony is a
prominent goal underlying almost every such code.” VoiceStream
Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 (7th Cir. 2003)
(quoting Aegerter v. City of Delafield, 174 F.3d 886, 891 (7th Cir. 1999)).
Pickens Cty, 625 F. Supp. 2d at 1301–02.1
The court agrees with the reasoning of the court in Pickens County. Aesthetic and
preservationist concerns lie at the heart of each of the City’s denials. Both the Small Cell
Ordinance and the Design Guidelines explicitly authorize the DRC to engage with such
considerations in considering an application. See, e.g., ECF No. 15-2 (stating the Small
Cell Ordinance shall “[p]rovide standards for Small City Wireless Facilities in the City’s
[public rights-of-way] to provide a uniform look and feel”); ECF No. 15-3 (stating that a
purpose of the Design Guidelines is to “preserve the character of neighborhood,
corridors, and districts” by “minimiz[ing] visual impact and bulk in the [public rights-ofway] by architecturally integrating the Small Wireless Facility with its surroundings”).
Like the court in Pickens County, this court is unmoved by the semantical difference
between “goals” or “purposes” the law authorizes the DRC to consider and more
substantive “factors” that it must consider.2 Congress designed the TCA to curb local

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At the hearing, Crown Castle attempted to distinguish Pickens County from the
present case by noting that the court there analyzed whether the local law authorized the
local commission’s rationale for its denial, and the court here must analyze whether the
basis for denial is well-rooted in local law. This is a distinction without a difference
because both questions get at the same inquiry—does local law provide a codified basis
for the written reasons for denial.
2
Crown Castle cites, without explanation, to two cases in support of its
contention: Wyandotte Cty., 546 F.3d at 1310, and Virginia Metronet, Inc. v. Bd. of
Sup’rs of James City Cty., Va., 984 F. Supp. 966, 974 (E.D. Va. 1998). The courts in
these cases held that “Governing bodies cannot simply arbitrarily invent new criteria in
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decisionmakers’ ability to “frustrate . . . the growth of wireless communication,” but also
to ensure the preservation of local authority over the decision to erect and modify
wireless facilities. Newport News, Va., 674 F.3d at 385. To deny the City the ability to
effectuate the codified goals and purposes of its own legislation would be to serve the
former purpose at the complete expense of the latter. See Omnipoint Commc’ns, Inc. v.
City of White Plains, 430 F.3d 529, 531 (2d Cir. 2005) (“The TCA thus strikes a balance
between ‘two competing aims—to facilitate nationally the growth of wireless telephone
service and to maintain substantial local control over siting of towers.’”). Section 332 of
the TCA constitutes a limit on local power, not an abrogation. As such, the court finds
that the City’s denials are well-rooted in local law.
2. Substantial Evidence
With respect to the second prong of the court’s review, Crown Castle argues that
“the denials are not supported by substantial evidence in the record . . . because the
denials are conclusory and there is no evidence opposing Crown Castle’s application to
support denial.” ECF No. 15-1 at 22. The City, of course, contends that substantial
evidence does support the denials. The court agrees with the City.
A familiar standard in the realm of administrative law, the Fourth Circuit defines
“substantial evidence” to mean “more than a mere scintilla of evidence but less than a
preponderance,” Newport News, 674 F.3d at 385, and “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,” AT & T Wireless

order to reject an application.” Virginia Metronet, 984 F. Supp. at 974. That law has no
application here, as the criteria on which the City based its denial are codified in the
Small Cell Ordinance and the Design Guidelines. The fact that criteria set aesthetic
standards does not render them arbitrary.
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PCS, Inc. v. City Council of the City of Virginia Beach, 155 F.3d 423, 430 (4th Cir.
1998) (quoting Universal Camera v. NLRB, 340 U.S. 474, 488 (1951)). “In reviewing
whether the denial of a permit application is supported by substantial evidence, a court is
not free to substitute its judgment for the agency’s (or [ ] the legislature’s); it must uphold
a decision that has substantial support in the record as a whole even if it might have
decided differently as an original matter.” Newport News, 674 F.3d at 386 (quoting
Virginia Beach, 155 F.3d at 430) (internal quotation marks omitted). “The party seeking
to overturn the local [decisionmaker’s] decision has the burden of proving that the
decision is not supported by substantial evidence.” VoiceStream Minneapolis., 342 F.3d
at 830 (quoting American Tower LP v. Cty of Huntsville, 295 F.3d 1203, 1207 (11th Cir.
2002))
Crown Castle posits several different theories for its position that the City’s
denials are unsupported by substantial evidence in the record. First, Crown Castle
contends that the denials “reflect[ ] the unilateral, subjective opinion of the Mayor” rather
than evidence in the record. ECF No. 15-1 at 22. Here, Crown Castle again asks the
court to venture beyond the “quite narrow” review § 332 authorizes. Wyandotte Cty, 546
F.3d at 1306–07. As the court explained above, § 332 authorizes the court to analyze a
“decision by a [ ] local government”—not the process by which it came to fruition—
based upon the reasons for the decision “contained in a written record.” 47 U.S.C.
§ 332(c)(7)(B)(iii); see also Newport News, 674 F.3d at 387 (authorizing judicial review
of “whether the reasons for the City’s decision are contemplated” by local law). The
court’s review is objective, precluding it from analyzing the perceived subjective
intentions of any decisionmaker. See Albemarle County, 211 F.3d at 83 (“[W]hen

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reviewing the decision of a local elected body, we take ‘a reasonable mind’ to refer to the
mind of a reasonable legislator.”). Moreover, the record is bereft of any actual evidence
from which the court could determine the subjective basis for a local decisionmaker’s
decision—be it the Mayor or a member of the DRC. See ECF No. 15-1 at 22 (arguing
that the Mayor “apparently imposed his unilateral view that the applications should be
denied.”). As such, the court reviews the denials based on the written record, not upon
alleged subjective thoughts or motivations behind the denials. Thus, Crown Castle’s first
theory fails.
Next, Crown Castle argues that the denials are not supported by substantial
evidence because the record does not contain evidence of public opposition to the
proposed wireless facilities. In support, Crown Castle cites Newport News, in which the
Fourth Circuit held that “vague and uncorroborated concerns” by three members of the
public did not constitute “substantial evidence” to support a local body’s the denial of a
tower permit. 674 F.3d at 390. Crown Castle’s argument is misguided. Newport News
stands for the proposition that not all public opposition to a permit application constitutes
“substantial evidence” to justify a denial. The Fourth Circuit did not hold in Newport
News, nor in any other case of which the court is aware, that a local government’s
decision to deny a tower permit must be supported by some form of public opposition.3
In other words, the law is clear that public opposition may constitute sufficient evidence
to support a denial, but it is certainly not necessary for a finding that a denial is supported

3

The same goes for the other cases on which Crown Castle relies. See T-Mobile
Cent., LLC v. Charter Twp. of W. Bloomfield, 691 F.3d 794 (6th Cir. 2012); Petersburg
Cellular P'ship v. Bd. of Sup’rs of Nottoway Cty., 205 F.3d 688, 692 (4th Cir. 2000).
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by substantial evidence in the record. Therefore, the lack of public opposition, in itself,
gives the court no reason to invalidate the City’s denials.
Finally, Crown Castle engages in an individualized review of each denial, arguing
that each contains “specific faults.” ECF No. 15-1 at 25. Because the City bases each
denial on similar evidence and similar provisions of local law and because Crown
Castle’s arguments with respect to each are similar, the court discusses the denials
together. Each of the proposed Nodes is located on the historic peninsula of downtown
Charleston. Two of the four proposed Nodes are located near two of the City’s most
famous and most photographed historic landmarks: Node CHS-026 would be adjacent to
“Rainbow Row” on East Bay Street, and Node CHS-032 would be positioned near the
intersection of Broad and Meeting Streets, known colloquially as the “Four Corners of
Law.” Each of the City’s denial letters states a similar rationale behind the denial: the
Nodes are “inconsistent with the overall design review guidelines as well as the findings
and provisions of [the Small Cell Ordinance],” ECF No. 15-15 at 2; they “fail[ ] to
minimize the visual impact and bulk in the right-of-way by architecturally integrating the
proposed tower[s] with [their] surroundings,” ECF No. 15-18 at 2; they “do[ ] not provide
a uniform look and feel with the adjoining historical area,” id.; and they “do[ ] nothing to
contribute to and in fact detract[ ] from a uniform look and feel for th[e] setting . . . .”
ECF No. 15-17 at 3. As discussed above, the City’s written rationale for the denials cites
to several provisions in the “Findings” section of the Small Cell Ordinance and the
“Background and Purpose” section of the Design Guidelines.
Crown Castle argues that the City’s “conclusory and subjective reasoning” for its
denials is not supported by substantial evidence in the record. Again, the court disagrees.

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“Aesthetic concerns may be a valid basis for denial of a permit if substantial evidence of
the visual impact of the tower is before the board.” Preferred Sites, LLC v. Troup Cty.,
296 F.3d 1210, 1219 (11th Cir. 2002). “[G]eneralized concerns about aesthetics,”
without evidence of visual impact, however, do not constitute substantial evidence for
denial. Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001), abrogated on
other grounds by T-Mobile S., LLC v. City of Roswell, Ga., 574 U.S. 293 (2015). Courts
have found that photos of the proposed site in the record constitute substantial evidence
supporting aesthetic concerns. Pickens Cty., 625 F. Supp. 2d at 1304 (“The decision was
not based upon merely general objections to the aesthetic appeal of a telecommunications
tower; rather, photographs and specific supporting testimony demonstrated that the
proposed tower would have a specific and material impact on the landscape and buildings
within the Historic District.”).
Here, each of the denials includes a photo simulation of the proposed Node and
explicitly incorporates the photo simulation into its denial. See, e.g., ECF No. 15-15 at
1–2 (“The photo simulation for the last proposal made by Crown [Castle] is attached as
Exhibit A and incorporated by reference.”). And each of the denials cites specific
aesthetic concerns raised by the proposed towers. See, e.g., ECF No. 15-17 at 3 (“[The
proposed tower] does not provide a uniform look and feel as it stands out significantly
when compared to its setting.”). A review of the photo simulations provides clear
evidence for the aesthetic concerns expressed in each of the City’s denial letters. Indeed,
the photo simulations depict large, black poles, up to 35 feet in height, planted in the
middle of various historic locations in downtown Charleston. See, e.g., 15-6 at 6.
Without conducting its own review or substituting its taste for that of the DRC, the court

16

can easily understand how a reasonable legislator might conclude that the proposed
Nodes “do[ ] not provide a uniform look and feel with the adjoining historical area, ECF
No. 15-18 at 2, or “detract[ ] from a uniform look and feel for th[e] setting,” ECF No. 1517 at 3. As such, the DRC clearly had “evidence of the visual impact of the tower,”
Preferred Sites, 296 F.3d at 1219, meaning that the aesthetic rationale for the denials pass
muster as more substantial than “generalized expressions of concern,” Todd, 244 F.3d at
60. Therefore, the court finds that the City’s denials of Crown Castle’s applications are
supported by substantial evidence in the record. As such, the court denies Crown
Castle’s motion for summary judgment with respect to its fourth cause of action.
B. Conditionally Granted Applications
Crown Castle also moves for summary judgment on its fifth cause of action,
which asserts that the City has violated § 332(c)(7)(B)(ii) because it has not acted on
three of Crown Castle’s applications within a reasonable time. To recap, in Crown Castle
I, the court ordered the City to respond to Crown Castle’s then-pending sixteen
applications within 90 days of March 23, 2020. On June 22, 2020, the City conditionally
granted three of Crown Castle’s applications, designated as Nodes CHS-001, CHS-016,
and CHS-023, on the condition that Crown Castle place the proposed Nodes on Cityowned poles. The placement of Nodes onto City-owned poles requires Crown Castle to
enter into “pole-use agreements” with the City. Crown Castle has provided the City with
a draft pole-use agreement, and the City has failed to respond. Crown Castle explains
that although the City has conditionally granted three applications, it has “effectively
fail[ed] to take final action on those [ ] applications” because it has yet to issue any poleuse agreements or respond to the one proposed by Crown Castle. ECF No. 15-1 at 3. In

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its response, the City states: “[T]he City believes all such issues will be resolved and
these poles will not be in issue when this matter is fully brief [sic] and considered by this
court, which will render this issue moot.” ECF No. 17 at 1. At the February 11, 2021
hearing on the motion, the City noted that it had responded to Crown Castle’s proposed
pole-use agreement with a proposed agreement of its own the day before and that it plans
to work with Crown Castle to reach a satisfactory result. As such, no pole-use agreement
has yet been reached, but the City has reemerged at the negotiating table, albeit at the last
possible opportunity.
Section 332(c)(7) states that “[a] State or local government or instrumentality
thereof shall act on any request for authorization to place, construct, or modify personal
wireless service facilities within a reasonable period of time after the request is duly filed
with such government or instrumentality, taking into account the nature and scope of
such request.” 47 U.S.C. § 332(c)(7)(B)(ii). The FCC has adopted a regulation
providing that when an authority fails to act on a sitting application on or before the “shot
clock” date of an application, the authority is presumed to not have acted within a
reasonable period of time. 47 C.F.R. § 1.6003(a). The shot clock period is calculated by
adding the number of days of the presumptively reasonable time period, as provided later
in the regulation, and the number of days of the tolling period, if applicable. Id.
§ 1.6003(b). Relevant here, the number of days of a presumptively reasonable time
period to act on an application to install a Small Wireless Facility using an existing
structure, in this case a pole, is 60 days. Id. § 1.6003(c)(1)(i). When the application
seeks to install a Small Wireless Facility using a new structure, the period is 90 days. Id.
§ 1.6003(c)(1)(iii). Neither party here argues that any tolling period is applicable.

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Although the City has now responded to Crown Castle’s proposed pole-use
agreement, the court cannot ignore its untimeliness. The court ordered the City to resolve
Crown Castle’s application within 90 days of March 23, 2020. The City conditionally
granted the three at-issue application on June 22, 2020. The City did not work with
Crown Castle to negotiate a pole-use agreement for nearly eight months, despite Crown
Castle’s submission of a proposed agreement. It seems clear to the court that the City’s
failure to timely negotiate a potential pole-use agreement constitutes a violation of
§ 332(c)(7)(B)(ii), even though the City has finally expressed a willingness to start
negotiating. As such, summary judgment is warranted with respect to Crown Castle’s
fifth cause of action. Because the court grants summary judgment on this issue, it must
determine the proper remedy, another issue on which the parties disagree. Crown Castles
argues that “the appropriate remedy is, at a minimum, to order the City immediately to
execute the draft agreement for use of the City’s poles.” ECF No. 15-1 at 34.
Alternatively, Crown Castle suggests that “the Court should order the City immediately
to approve Crown Castle’s proposal without using the City-owned poles.” Id. The court
finds neither prudent.
“The TCA does not specify a remedy for violations of the cellular siting
subsection.” Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999).
When the FCC received comments on 47 C.F.R. § 1.6003, several commenters advocated
for the FCC to “adopt a deemed granted remedy.” In the Matter of Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. at
9153. The FCC declined to do so, explaining that it is “confident that the rules and
interpretations adopted here will provide substantial relief, effectively avert unnecessary

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litigation, allow for expeditious resolution of siting applications, and strike the
appropriate balance between relevant policy considerations and statutory objectives
guiding [its] analysis.” Id. at 9153–54. Therefore, the court has full discretion in
determining what proper injunctive relief is warranted for a violation of the shot clock.
The court confronted the same dilemma in Crown Castle I. By way of review, the
court denied Crown Castle’s motion for summary judgment in part but granted it in part
for the same reason it does here—the City’s shot clock violation under § 332(c)(7)(B).
After a lengthy discussion, the court concluded in Crown Castle I that injunctive relief is
inappropriate when “the court is only faced with a shot clock violation[.]” Crown Castle
I Order at 20. Instead, the court found “it more appropriate to order the City to render a
decision on Crown Castle’s applications within a specified number of days of this order,
as courts face[d] with similar situations have done.” Id. at 23 (citing Up State Tower Co.,
LLC v. Town of Kiantone, New York, 2016 WL 7178321, at *7 (W.D.N.Y. Dec. 9,
2016), aff’d, 718 F. App’x 29 (2d Cir. 2017)). With the purpose of the TCA in mind, the
court opts for the same resolution here. This remedy seems doubly appropriate at this
juncture, given that the City has finally responded to Crown Castle’s proposed pole-use
agreement. Therefore, the court orders the City to issue a decision with respect to Crown
Castle’s proposed pole-use agreement within 30 days of this order.

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IV. CONCLUSION
For the foregoing reasons the court GRANTS IN PART and DENIES IN PART
the motion.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 15, 2021
Charleston, South Carolina

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