Pasadena’s 5th Circuit Appeal a Small-Cells Delay Tactic: Crown Castle

Pasadena, Texas, used its 5th U.S. Circuit Appeals Court appeal “as a tool” to persuade the district court to delay enforcement of its permanent injunction barring the municipality from blocking Crown Castle’s small-cell installations for T-Mobile, said Crown Castle’s answering brief Monday (docket 22-20454). Though the district court said Crown Castle would suffer immediate and irreparable harm unless there's a permanent injunction, it granted the Pasadena’s request for a stay pending appeal.

In granting summary judgment for Crown Castle Aug. 2, U.S. District Judge David Hittner for Southern Texas in Houston said a “plain reading” of the city’s design manual shows the spacing requirement for small-node networks is “more burdensome” than the requirements applicable to other users of the public rights-of-way (see 2212090044). The court agreed with Crown Castle that Pasadena violated Section 253 of the Telecommunications Act by impossibly requiring small-cell nodes to be buried underground and spaced in a limiting way. The lower court also agreed the statute preempts the city's authority to enforce its design manual.

Pasadena “does not even attempt to confront the basis of the district court’s preemption holding,” said Crown Castle’s brief. The district court had “federal question jurisdiction” to adjudicate the Section 253 preemption dispute, it said. Crown Castle has standing to assert “that it was unlawfully prohibited from providing telecommunications services, and the district court correctly ruled that Crown Castle indeed provides such services,” it said.

As required by “binding” 5th Circuit precedent, the district court followed the FCC’s “authoritative application” of Section 253 to small-cell nodes -- “an agency determination that accords with the statute’s plain text,” said Crown Castle. Applying the standard in the FCC’s ruling, the court said Section 253 preempts Pasadena’s regulations, and its statutory defense for “competitively neutral and nondiscriminatory” regulations doesn't protect the city’s “targeted treatment of small cell nodes,” it said.

Pasadena “ignores these holdings,” and doesn't deny that under the FCC’s standard, “its regulations are preempted,” said Crown Castle. The city instead “raises a new argument” that was never previously briefed, that “only facial (and not as-applied) challenges” can be brought under Section 253, it said. The city “has not preserved any argument that the district court erred in this regard,” it said.

The district court’s reasoning, which Pasadena also fails to challenge, “was entirely correct,” said Crown Castle. “The district court’s adherence to the FCC’s ruling is compelled by binding circuit precedent,” it said. The plain text of Section 253 “fully supports the FCC’s ruling and the district court’s preemption decision,” it said. Section 253 preempts the city’s regulations “because the uncontroverted facts show that they effectively prohibit Crown Castle’s ability to provide telecommunications services,” it said.

Because Pasadena’s regulations are preempted, the district court “properly enjoined” the city from enforcing them for Crown Castle, said the brief. The city “raises no unique challenges to the propriety of injunctive relief,” and the 5th Circuit should affirm the district court’s ruling, it said.

Crown Castle has standing “to assert it was unlawfully prohibited from providing telecommunications services,” said the brief. Crown Castle suffered “an actual, concrete injury” due to the city’s conduct, it said. It's undisputed that Pasadena’s design manual “bars Crown Castle from deploying network nodes in the desired locations and forces Crown Castle to install certain equipment underground,” it said. Pasadena’s rules “caused the injury, which may be remedied by injunctive relief,” it said.