Crown Castle Fiber LLC v. Charleston, City ofCrown Castle Fiber LLC v. Charleston, City of
ORDER
The following matter is before the court on plaintiff Crown Castle Fiber LLC‘s (“Crown Castle“) motion for summary judgment, ECF No. 67. 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 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 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.
The City‘s standard process for telecommunications facilities in public rights-of-way is as follows. The entity seeking to
Crown Castle‘s endeavor to deploy small cell facilities in the City began in November 2014. Ann Brooks, the Government Relations Manager with Crown Castle at the time, reached out to the City to determine the process and requirements to construct Crown Castle‘s network in Charleston. Ms. Brooks spoke with Adelaide Andrews, an attorney in the City‘s Corporation Counsel office, and provided, via email, a copy of Crown Castle‘s executed franchise agreement with the City of Columbia, South Carolina and a proposed franchise agreement using the Municipal Association of South Carolina (“MASC“) model. ECF No. 68-1 at 2. The City did not respond to Ms. Brooks‘s email. ECF No. 68, Brooks Decl. ¶ 5. Then on December 18, 2014, Ms. Brooks met with City staff to present an application package detailing Crown Castle‘s proposed facilities and the general locations of the Nodes and fiber optic lines. Id. ¶ 6. After the meeting, Ms. Brooks emailed the MASC model franchise agreement, copies of Crown Castle‘s franchise agreement with Columbia, South Carolina and Florence, South Carolina, and the contact information for Crown Castle‘s point of contact with those two cities. ECF No. 68-2 at 2. The City never responded to Ms. Brooks‘s email. Brooks Decl. ¶ 6.
In February 2015, Ms. Brooks again sent the MASC model franchise agreement to the City and asked for the City‘s preferred form of franchise but did not get a response. Id. ¶ 7; ECF No. 68-3. Ms. Brooks also introduced Susan Herdina, the Deputy Corporation Counsel for the City at the time, to Crown Castle‘s counsel so that they could begin negotiating right-of-way authorization. Brooks Decl. ¶ 8; ECF No. 68-4. Ms. Herdina asked to push off Crown Castle‘s requested meeting and did not provide comment on the proposed right-of-way agreement. Brooks Decl. ¶ 8.
Ms. Brooks spoke to Ms. Herdina again in March 2015 regarding Crown Castle‘s proposed deployment. Id. ¶ 9. During that conversation, Ms. Herdina told Ms. Brooks she would provide a document containing the City‘s preferred terms for an authorizing agreement. Id. Then in a March 29, 2015 letter to Ms. Herdina, Ms. Brooks described Crown Castle‘s proposed facilities and provided a proposed network map, photographs and photo simulations of representative Crown Castle installations, and other materials. Id.; ECF No. 68-6. The City did not respond to Ms. Brooks‘s letter nor did it provide its preferred terms for an authorizing agreement. Brooks Decl. ¶ 9.
In April 2015, Ms. Herdina asked for a more detailed description of where Crown Castle intended to install equipment in the City, engineering drawings for the fiber deployment and Node deployment, and right-of-way agreements that Crown Castle had executed with other cities. Id. ¶ 10; ECF No. 68-7. Ms. Herdina also expressed concern regarding an indemnification provision in the proposed agreement that Crown Castle provided. ECF No. 68-7. Ms. Brooks responded, noting that she had sent a map with specific Node locations
Then on October 21, 2015, at the City‘s direction, Crown Castle submitted three applications to the South Carolina Department of Transportation (“SCDOT“) for encroachment permits for fiber optic lines. ECF No. 69, Free Decl. ¶ 3. SCDOT approved the applications on December 30, 2015, conditioned on the City‘s approval. Free Decl. ¶ 4. In December 2015, a Crown Castle attorney attempted to engage with Ms. Herdina, but Ms. Herdina only apologized for her delay in responding to the email and promised to call the following week. ECF No. 63-8.
On April 20, 2016, David Free, an implementation project manager with Crown Castle, met with Ted Barker, the Supervisor of Roadway Inspection for the City, to discuss Crown Castle‘s network, including drawings with proposed sites and locations. Free Decl. ¶ 6. Then on May 3, 2016, Crown Castle submitted the approved SCDOT permits and encroachment agreement application packages requesting consent to install lines and Nodes in the City‘s right of way to Mr. Barker. Brooks Decl. ¶ 14. During this time, the City had decided to adopt a small wireless facility ordinance and was in the process of drafting it (“Small Cell Ordinance“). As such, Mr. Baker stated that he could not process the applications until the City‘s new ordinance was implemented. Id. Then on May 4, 2016, Ms. Brooks met with various City staff to discuss Crown Castle‘s planned deployment and the City‘s delay. Id. ¶ 15. The City assured Ms. Brooks that a new ordinance was being drafted to govern the deployment of small cells in the City. Id. Crown Castle met again with City staff in August 2016. Id. ¶ 17. Crown Castle subsequently provided the City with a draft model ordinance related to small wireless facilities and information regarding the deployment of Crown Castle‘s services in other cities. Id. ¶¶ 18-19. Then on January 28, 2017, Ms. Brooks asked the City to provide the Department of Public Service with any information necessary to review Crown Castle‘s fiber permits. Id. ¶ 20, ECF No. 68-11. Ms. Brooks then met with City staff on February 2, 2017 to discuss Crown Castle‘s efforts. Brooks Decl. ¶ 21. After this meeting, Ms. Brooks provided SCDOT permit materials to the City and, at the City‘s request, additional sample small cell ordinances from various cities. Brooks Decl. ¶ 21. Ms. Brooks met again with City staff on February 14, 2017. Id. ¶ 22.
On March 6, 2017, Ms. Brooks emailed a City staff member to note that Mr. Free was meeting with Mr. Barker the following day to discuss Crown Castle‘s fiber permit application submittal and associated documents. ECF No. 68-15. Ms. Brooks stated that Crown Castle “looked forward to learning more about bond and insurance requirements, as well as any other required materials.” Id. City staff responded to Ms. Brooks‘s email, stating that the City was reviewing the information Crown Castle had sent and expressing hope that they would finish up that week. Id. On March 7, 2017, Mr. Free met again with Mr. Barker,
On May 17, 2017, Crown Castle wrote to the Mayor of the City requesting assistance. Id. ¶ 24; ECF No. 68-16. On July 6, 2017, a Senior Advisor to the Mayor responded, explaining that “the City of Charleston possess many outdated processes and policies that hinder collaboration between the City and service providers, such as Crown Castle.” ECF No. 68-17 at 1. He explained that the City determined that it needed to create a “broadband master plan” and that it would issue a Request for Proposal (“RFP“) to engage a consultant to create the plan. Id. The RFP was issued on October 13, 2017 and awarded to a vendor on January 22, 2018.
The City does not dispute the occurrence of these meetings and contacts. Instead, the City explains that the use of Nodes and small cell technology is something new to the City, and that the City has the additional concern of how these services would affect the City‘s historic district specifically. The City relies primarily on deposition testimony from Ms. Herdina, who explained that when the City was initially contacted by Crown Castle, the City was first interested in learning more about the technology and its impact on the City before entering into a franchise agreement and presenting it to the Mayor and City Council. ECF No. 79-7, Herdina Depo. 27:1-21. Ms. Herdina explained that the City requested detailed plans for the historic areas of the peninsula, and that the City felt like they weren‘t getting what they were looking for during discussions with Crown Castle. Herdina Depo. 27:22-29:4. According to the City, Crown Castle provided a lot of generalized material and examples from other cities, but the information was not tailored to Charleston‘s unique historical considerations. Herdina Depo. 44:1-16. Ms. Herdina generally explained that there was a disconnect between Crown Castle and the City, and that Crown Castle wanted to push ahead before the City could understand what exactly it would be getting into. She summarized the issue by stating that “we never felt like Crown Castle had provided us with a proposed agreement or guidelines that were sensitive to the unique historic nature of Charleston.” Herdina Depo. 44:12-16. The City also stresses that there was no process in place to do what Crown Castle wanted to do—deploy small cell wireless facilities.
Crown Castle filed this action on September 22, 2017, alleging that the City has refused to process or make an decision on any of Crown Castle‘s permit applications and requests to establish telecommunications facilities in Charleston in violation of
On September 18, 2018, the City passed an ordinance requiring service providers to obtain a franchise agreement before installing and constructing fiber optics within the City‘s rights-of way. ECF No. 79-2. On September 26, 2018, the 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
As of February 19, 2020, the City had still not acted on the applications. On March 18, 2020, Crown Castle filed its second amended complaint to seek relief for the remaining applications at issue: Crown Castle‘s eleven applications for wireless facilities on existing poles1 and Crown Castle‘s five applications for wireless facilities on new poles.2 The second amended complaint brings claims for a violation of
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.
III. DISCUSSION
Crown Castle argues that summary judgment in its favor is warranted because the undisputed facts show that the City has violated
A. Mootness
As an initial matter, the City argues that many of the issues raised by Crown Castle are now moot. Those issues include: (1) the amount of time it took the City to adopt the Small Cell Ordinance; (2) the City‘s failure to act in a timely manner regarding Crown Castle‘s request for a franchise agreement; and (3) the City‘s failure to timely process Crown Castle‘s small cell permit applications. The City explains that it has now adopted the Small Cell Ordinance and granted a franchise agreement to Crown Castle. The City also explains that, although several of Crown Castle‘s applications have not yet been approved or rejected, the DRC is still working with Crown Castle on Crown Castle‘s applications, meaning that some action is being taken. In response to this argument, Crown Castle contends that its claim regarding its applications are not moot because its applications still have not be granted or denied.
The court finds that any arguments about the amount of time it took the City to enact the Small Cell Ordinance or about the franchise agreement are now moot given that the City has passed the Small Cell Ordinance and entered into a franchise agreement with Crown Castle. However, Crown Castle‘s arguments regarding its 16 applications on which the City has yet to act are not moot. As such, the court will still consider Crown Castle‘s arguments regarding the 16 applications that are still pending before the City.
B. Violation of § 253(a)
Turning to Crown Castle‘s substantive arguments, Crown Castle first argues that the City has violated § 253(a) because its inaction constitutes a de facto moratorium, which the FCC Declaratory Ruling found to be violative of § 253(a). Pursuant to
The FCC Declaratory Ruling found that de facto moratoria violate § 253(a). In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. at 7780. It defines de facto moratoria as “state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” Id. Several examples provided by the FCC of a de facto moratorium include blanket refusals to process applications, lengthy delays in processing applications, and claims that applications cannot be processed until pending legislation is adopted. Id. at 7780-81. The FCC further states that “[a] de facto moratorium can prohibit or effectively prohibit an entity from providing telecommunications service if the provider cannot obtain approval or authorization to deploy from the state or local government due to inaction or refusal, even if there is no statute, regulation, or other express legal requirement restricting the acceptance, processing, or grant of applications or authorizations.” Id. at 7782.
The City‘s inaction certainly fits within the FCC‘s definition of a de facto moratorium. However, the court is not convinced that the FCC Declaratory Ruling is binding on the court, meaning the court is uncertain that it can find that a de facto moratorium is a violation of § 253(a). The City notes that there is currently an appeal of the Declaratory Ruling, and it is not clear whether the court must abide by the FCC‘s declaratory rulings in general, citing PDR Network LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (June 20, 2019). In response, Crown Castle clarified that the Tenth Circuit denied a stay of effectiveness of the Declaratory Ruling, meaning that the Declaratory Ruling is currently in force. Moreover, Crown Castle explains that in PDR Networks, the Supreme Court emphasized that it was not reaching the question of whether the district court was bound by the FCC, but that existing precedent does establish that district courts are bound by agency interpretations, citing Mais v. Gulf Coast Collection Bureau Inc., 768 F.3d 1110, 1119 (11th Cir. 2014).
The court agrees that the FCC Declaratory Ruling is currently in force. The Tenth Circuit has denied a motion to stay the FCC Declaratory Ruling pending appeal. City of San Jose v. FCC, 2019 U.S. App. LEXIS 4015, at *6 (10th Cir. Jan. 10, 2019). Therefore, the FCC Declaratory Ruling is still in effect during the pendency of its appeal. However, whether the Declaratory Ruling is still in effect does not necessarily mean that the Declaratory Ruling is binding on the court. In PDR Network, the Supreme Court was confronted with various questions regarding the binding nature of the FCC‘s declaratory rulings on district courts, none of which the Court “definitively resolve[d].” Id. at 2055. The Supreme Court pondered whether FCC declaratory rulings have the “force and effect of law“, making them binding, or whether they are “the equivalent of an interpretive rule” that “lacks the force and effect of law” but didn‘t answer the question. Id. Because the Court did not answer these questions, the question of whether FCC declaratory rulings are binding on district courts remains unresolved.
Contrary to what Crown Castle argues, Mais does not stand for the proposition that a district court is bound by an FCC declaratory judgment. Instead, the Eleventh Circuit held in that case that the FCC declaratory ruling at issue was an
Because the Supreme Court has not definitively answered whether FCC declaratory rulings are binding on district courts, the parties have left the court in a bit of a conundrum. To convince the court that the Declaratory Ruling is binding on the district court, Crown Castle must show that the Declaratory Ruling is equivalent to a legislative rule that has the force and effect of law. Crown Castle has not made this argument. Similarly, to convince the court that the Declaratory Ruling is not binding on the district court, the City must show that the Declaratory Ruling is equivalent to an interpretive rule that does not have the force and effect of law. The City has not made this argument either. As such, the court is left with no argument before it as to what weight it should give the Declaratory Ruling and declines to make such a finding without argument from the parties.
Moreover, Crown Castle provides no examples of courts that have found a § 253(a) violation based on a de facto moratorium. Instead, the case law relied upon by Crown Castle that relates to § 253(a) violations only deals with the question of whether ordinances violated § 253(a), not whether a city‘s inaction, considered to be a de facto moratorium, violated § 253(a). Crown Castle cites to TCG New York, Inc. for the proposition that “excessive delays” of approval that effectively prohibit a carrier from providing telecommunications services violate § 253(a); however, that is an oversimplification of what the court said. The Second Circuit found that White Plains‘s ordinance posed obstacles to TCG‘s ability to compete in White Plains on a fair basis, one of which was “the extensive delays in processing TCG‘s request for a franchise.” 305 F.3d at 76-77. As such, the Second Circuit concluded that the ordinance violated § 253(a). Id. Similarly, in Peco Energy Co. v. Twp. of Haverford, the parties were challenging an ordinance, not the locality‘s general inaction. 1999 WL 1240941, at *8 (E.D. Pa. Dec. 20, 1999) (“The Ordinance provides absolutely no guidance to a provider about how to apply for a franchise or what the contents of such an application should be.“).
Considering the other case cited by Crown Castle, the court in AT&T Commc‘ns of the Sw., Inc. v. City of Austin, Tex. did generally recognize that a delayed entry into a telecommunications market can have “profound effects” on the success of a provider. 975 F. Supp. 928, 938 (W.D. Tex. 1997), vacated on other grounds, 235 F.3d 241 (5th Cir. 2000). However, this statement was not in the context of whether the City of Austin violated § 253(a); it was made in the court‘s consideration of whether the case was ripe. Therefore, this case does not provide much, if any, support for Crown Castle. In sum, Crown Castle has not cited to any court that has found a violation of § 253(a) based on a de facto moratorium, and the court‘s own research has not revealed any such case.
Given the lack of argument on whether the FCC Declaratory Ruling is binding on this court and the apparent lack of cases in which a court has found that a city violated § 253(a) by enacting a de facto moratorium, the court finds that summary judgment is not warranted on the issue of
Moreover, without considering the FCC Declaratory Ruling, the court fails to see how the City‘s inaction constitutes a violation of § 253(a). The plain language of § 253(a) reads “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Crown Castle has made clear that it is not challenging the Small Cell Ordinance and cites to no local regulation at issue. That leaves challenges to a “local legal requirement,” but Crown Castle is not challenging any requirement. Instead, Crown Castle is challenging the City‘s inaction and delay. The court struggles to understand how this challenge fits within the confines of § 253(a) notwithstanding the FCC Declaratory Ruling‘s de facto moratorium finding.
Crown Castle additionally argues that the City is not complying with the Small Cell Ordinance because the Mayor has become involved in the application review process, which is not provided for in the Small Cell Ordinance, and that the Mayor‘s discretionary involvement in the application review process violates § 253(a). Crown Castle explains that, according to the ordinance, the DRC is the entity with the authority to approve or reject applications, and that there is no mention of the Mayor‘s involvement. Crown Castle then contends that the Mayor has taken over the decision-making process in violation of the Small Cell Ordinance and is unilaterally making decisions on applications without involvement from the DRC.
The court is unconvinced that the City‘s alleged failure to comply with the Small Cell Ordinance and the Mayor‘s alleged discretionary involvement in the application process violates § 253(a). Crown Castle likens the facts here to those in Peco Energy Co. In that case, the court explained that the ordinance at issue created various barriers to entry into the telecommunications market that, in sum, violated § 253(a). 1999 WL 1240941, at *8. One of those barriers was that “under the express terms of the Ordinance, the Township Manager, in his sole discretion, can completely prohibit the provision of telecommunications services, as the Ordinance merely provides that he ‘may’ approve an application.” Id. Crown Castle contends that, like in Peco Energy Co., the Mayor, in his sole discretion, can review and reject applications, and this violates § 253(a). However, the issue in Peco Energy Co. was that the ordinance granted this discretionary authority, and the ordinance was challenged under § 253(a). Here, Crown Castle is not arguing that the Small Cell Ordinance is invalid or that the Small Cell Ordinance improperly grants the Mayor sole discretion over the review process; instead, Crown Castle is arguing that the City and the Mayor are operating outside of the confines of the Small Cell Ordinance.3 In other words, Crown Castle is
inaction and the Mayor‘s actions, not a “State or local statute or regulation, or other State or local legal requirement.” As discussed above, the court fails to see how this challenge fits within the plain language of the statute.
In sum, the court declines to consider whether the FCC Declaratory Ruling is binding upon the court when the parties have failed to make the requisite arguments necessary for that determination, and the court fails to understand how the City‘s inaction, as opposed to an ordinance, regulation, or legal requirement, otherwise violates § 253(a). Accordingly, based on the arguments before it, the court finds that summary judgment is not warranted in favor of Crown Castle on the issue of whether the City violated § 253(a).4
C. Failure to Act in a Timely Manner
Crown Castle also contends that the City has failed to act on its applications in a timely manner, in violation of
Crown Castle submitted the applications at issue here to use existing utility poles on April 15, 2019, April 22, 2019, May 6, 2019, and May 7, 2019. The City has not accepted or rejected these eleven applications, and the shot clock of 60 days has clearly run. Crown Castle also submitted applications at issue here to use new poles on April 26, 2019, May 7, 2019, and May 8, 2019. The City has not accepted or rejected these five applications, and the shot clock of 90 days has also clearly run.
The City does not dispute that the shot clock has run on these applications. It explains that it “has been up front and admitted that it has taken time for the DRC to work out the proper parameters for considering the applications under the process set forth in the Small Cell Ordinance.” ECF No. 79 at 18. Instead, the City argues that the injunctive relief requested by Crown Castle, that the court grant all of Crown Castle‘s applications and issue necessary permits to allow Crown Castle to construct fiber optic lines, 32 Nodes, and associated equipment in the
Given the parties’ agreement on the issue, the court finds that there is no genuine issue of material fact as to whether the City has violated
“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
Therefore, the court has full discretion in determining what proper injunctive relief is warranted for a violation of the shot clock. Crown Castle seeks an injunction ordering the City to accept Crown Castle‘s applications. Crown Castle argues that it will suffer irreparable harm if the City‘s delay continues and that there is no other remedy available. The City argues that this type of injunctive relief is too drastic, citing Up State Tower Co., LLC v. Town of Kiantone, New York, 718 F. App‘x 29 (2d Cir. 2017). In Up State Tower Co., the court found that the district court did not abuse its discretion in denying affirmative injunctive relief to Up State because the Town of Kiantone only violated the shot clock in § 332(c)(7)(B)(ii), and courts generally grant injunctive relief when a local government both violates the shot clock and another subsection of § 332(c)(7)(B). 718 F. App‘x at 32 (collecting cases). Instead, the Second Circuit approved of the district court‘s order that the town act on Up State‘s applications within 20 days. Id. at 31. Here, Crown Castle contends that the City violated more than just the shot clock; it also contends that the City violated § 253(a). However, as discussed above, the court declines to grant summary judgment in favor of Crown Castle to find that the City has violated § 253(a). As such, the court is only faced with a shot clock violation, which Up State Tower Co. suggests is alone insufficient to warrant the injunctive relief that Crown Castle requests.
Crown Castle argues the Declaratory Ruling “rejected and corrected” the decision in Up State Tower Co. ECF No. 82 at 18. The Declaratory Ruling states that “[a]lthough some courts, in deciding whether an injunction is the appropriate form of relief, have considered whether a siting authority‘s delay resulted from bad faith or involved other abusive conduct,” citing Up State Tower Co., the FCC continues, stating that “we do not read the trend in court precedent overall to treat such considerations as more than relevant (as opposed to indispensable) to an injunction.” In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd. at 9149-50. However, the FCC eventually advocates for a balancing approach, explaining that
We therefore caution those involved in potential future disputes in this area against placing too much weight on the Commission‘s recognition that a siting authority‘s failure to act within the associated timeline might not always result in a preliminary or permanent injunction under the Section 332(c)(7)(B) framework while placing too little weight on the Commission‘s recognition that policies established by federal communications laws are advanced by streamlining the process for deploying wireless facilities.
Id. at 9150. The FCC then explains that it “anticipate[s] that the traditional requirements of awarding preliminary or permanent injunctive relief would likely be satisfied in most cases and in most jurisdictions where a violation of is found.” Id. The FCC reviews the factors courts consider in granting injunctive relief, like actual success on the merits, and concludes that “[t]he framework reflected in this Order will provide the courts with substantive guiding principles in adjudicating Section 332(c)(7)(B)(v) cases, but it will not dictate the result or the remedy appropriate for any particular case; the determination of those issues will remain within the courts’ domain.” Id. at 9150-51.
First, as discussed above, while the Declaratory Ruling does seem to disagree with the holding of Up State Tower Co., the parties have not presented sufficient argument on whether the FCC Declaratory Ruling is binding on the court. In other words, it is unclear whether or not the court must accept the FCC Declaratory Ruling‘s rejection of Up State Tower Co.
Next, the court has only found one case in which a court granted injunctive relief solely for the violation of § 332(c)(7)(B)(ii), Masterpage Commc‘ns, Inc. v. Town of Olive, N.Y., 418 F. Supp. 2d 66 (N.D.N.Y. 2005). In Masterpage Commc‘ns, the court found injunctive relief to be warranted because the town “relinquished its right to seek further review of Masterpage‘s application” because the town disregarded “clearly established New York law” as well as its own law. 418 F. Supp. 2d at 81. Moreover, the court noted that while the town had not yet addressed environmental impacts, the town had two years to address the issue but had failed to take the first step in doing so. As such, the court ordered the town to grant Masterpage‘s application.
The facts here are different. First, the court is not convinced that the City has disregarded any law because there was no ordinance in place governing this process, and Crown Castle has not pointed to any South Carolina law that the City has allegedly violated. Moreover, the City is in the process of addressing Crown Castle‘s applications, as opposed to the town in Masterpage Commc‘ns‘s complete failure to do so. The City has presented evidence that while it certainly has been dragging its feet, some progress has been made. Therefore, the facts that convinced the Masterpage Commc‘ns court to grant injunctive relief are not present here.
In support of its argument that an injunction is appropriate here, Crown Castle cites to several cases for the proposition that remanding the case to the City is pointless and would thwart § 332(c)(7); however, none of those cases dealt with a violation of § 332(c)(7)(B)(ii), which requires a local authority to act within a reasonable time. Instead, they focus on other subsections of § 332(c)(7) that contain different requirements warranting different considerations, like whether a local government‘s denial of a request to place personal wireless service facilities is supported by substantial evidence. T-Mobile Ne. LLC v. Loudoun Cty. Bd. of Sup‘rs, 903 F. Supp. 2d 385, 413 (E.D. Va. 2012),
Crown Castle also cites to two cases in which courts have granted injunctions when there is a shot clock violation and a violation of the “effective prohibition” clause of § 332(c)(7)(B)(i)(II). ECF No. 82 at 18 (citing Bell Atl. Mobile of Rochester L.P. v. Town of Irondequoit, N.Y., 848 F. Supp. 2d 391 (W.D.N.Y. 2012) and Upstate Cellular Network v. City of Auburn, 257 F. Supp. 3d 309, 315 (N.D.N.Y. 2017)). However, Crown Castle has not brought a claim for violation of § 332(c)(7)(B)(i)(II). See generally ECF No. 96. Instead, Crown Castle‘s claims are based on § 253(a) and § 332(c)(7)(B)(ii). Therefore, these cases do not convince the court that it should enter an injunction requiring the City to grant Crown Castle‘s pending applications. Instead, the court finds 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 with similar situations have done. See 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).
In sum, the court denies summary judgment as to Count I, alleging a violation of § 253(a), and grants summary judgment in favor of Crown Castle as to Counts III and IV, alleging violations of § 332(c)(7)(B)(ii).5 The City shall have 90 days to act on Crown Castle‘s sixteen pending applications.6
IV. CONCLUSION
For the reasons set forth above, the court grants in part and denies in part the motion.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 23, 2020
Charleston, South Carolina