448 F.Supp.3d 532
D.S.C.2020Background
- Crown Castle, a telecom provider, sought to deploy fiber and "Nodes" (small wireless facilities) in Charleston beginning in 2014 and repeatedly met with City staff to obtain rights-of-way/franchise approval and permits.
- The City delayed processing, cited unfamiliarity with small‑cell technology and historic‑district concerns, and worked to draft a Small Cell Ordinance and a broadband master plan.
- Crown Castle sued (Sept. 2017) alleging violations of 47 U.S.C. § 253(a) and failure to act timely under 47 U.S.C. § 332(c)(7)(B)(ii); parties executed an MOU and the City later adopted a franchise and a Small Cell Ordinance (2018).
- As of early 2020, sixteen Crown Castle applications (eleven for existing poles, five for new poles) remained pending before the City.
- The court held the FCC’s 2018 Declaratory Ruling was in effect but declined to decide whether it is binding on the district court; it denied summary judgment on the § 253(a) claim (de facto moratorium theory) but granted summary judgment for Crown Castle on the § 332(c)(7)(B)(ii) shot‑clock claims (Counts III & IV).
- Remedy: the court ordered the City to decide Crown Castle’s 16 pending applications within 90 days; Count I (§ 253(a)) was denied on summary judgment, and Count II (attorney’s fees) was not moved for.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of earlier delays and franchise/ordinance adoption | Earlier delay/franchise failures remain actionable because Crown Castle still has pending applications | City: adoption of franchise and Small Cell Ordinance moots earlier disputes | Court: franchise and ordinance adoption moot those discrete claims, but pending 16 applications are not moot |
| Whether City’s inaction amounted to a § 253(a) de facto moratorium | City’s prolonged inaction and conditioning on legislation effectively prohibits service, citing FCC Declaratory Ruling | City: no statute/regulation prohibited service; delays due to learning curve and historic‑district concerns; Declaratory Ruling’s binding effect is unsettled | Court: denied summary judgment for Crown Castle on § 253(a); declined to adopt FCC ruling as binding without briefing and found insufficient precedent holding § 253(a) violates based solely on inaction |
| Alleged deviation from Small Cell Ordinance (mayoral involvement) | Mayor has taken discretionary control outside ordinance, amounting to prohibited conduct under § 253(a) | City: Mayor/DRC roles overlap; involvement not shown to transform ordinance into a prohibition | Court: rejected § 253(a) relief based on alleged procedural deviations; challenge targets inaction, not an ordinance or regulation |
| Shot‑clock violations under § 332(c)(7)(B)(ii) and appropriate remedy | Shot‑clock ran on 11 existing‑pole apps (60 days) and 5 new‑pole apps (90 days); injunctive relief ordering permits or other relief warranted | City: admits delay but contends mandatory grant is too drastic; asks for discretion on remedy | Court: granted summary judgment for Crown Castle on shot‑clock claims (Counts III & IV) and ordered the City to render decisions on the 16 applications within 90 days; declined to order automatic permit grants |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard) (sets the federal summary judgment standard)
- TCG New York, Inc. v. City of White Plains, 305 F.3d 67 (2d Cir.) (ordinance delays can contribute to a § 253(a) violation)
- PDR Network LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019) (Supreme Court discussion relevant to whether agency declaratory rulings bind district courts)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir.) (district court lacked jurisdiction to review FCC declaratory ruling validity)
- Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir.) (TCA does not prescribe a specific remedy for siting subsection violations)
- Up State Tower Co., LLC v. Town of Kiantone, [citation="718 F. App'x 29"] (2d Cir.) (shot‑clock violation alone often insufficient to compel permit grants; courts may order prompt local decision)
- Masterpage Commc'ns, Inc. v. Town of Olive, N.Y., 418 F. Supp. 2d 66 (N.D.N.Y.) (rare case granting injunctive relief solely for prolonged shot‑clock violation in unusual circumstances)