Opinion
Case No. 20-cv-08139-JST
2023-03-02
T-MOBILE WEST LLC, Plaintiff, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
Jonathan P. Garvin, Pro Hac Vice, Thomas Scott Thompson, Pro Hac Vice, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, DC, Paige E. Adaskaveg, Evan Nadel, Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., San Francisco, CA, for Plaintiff. Wayne Kessler Snodgrass, Office of the City Attorney, San Francisco, CA, for Defendants.
Jonathan P. Garvin, Pro Hac Vice, Thomas Scott Thompson, Pro Hac Vice, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, DC, Paige E. Adaskaveg, Evan Nadel, Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., San Francisco, CA, for Plaintiff. Wayne Kessler Snodgrass, Office of the City Attorney, San Francisco, CA, for Defendants.
ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT
Re: ECF Nos. 61, 71 JON S. TIGAR, United States District Judge
Before the Court are the parties' cross-motions for summary judgment. ECF No. 61. The Court will grant T-Mobile West LLC's ("T-Mobile") motion in part and deny it in part, and the Court will deny the City and County of San Francisco's ("San Francisco") motion.
I. BACKGROUND
A. Factual Background
T-Mobile provides a variety of services in and around San Francisco via radio frequencies licensed by the Federal Communications Commission ("FCC"), including commercial mobile radio services, personal and advanced wireless services, and other telecommunications services. ECF No. 62 ¶ 4. In April 2020, T-Mobile began to submit applications to San Francisco seeking to modify a number of its existing wireless facilities under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ("Spectrum Act"), Pub L. No. 112-96, 126 Stat. 232-33 (codified at 47 U.S.C. § 1455). The Spectrum Act provides that "a State or local government may not deny, and shall approve, any eligible facilities request of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." 47 U.S.C. § 1455(a)(1). An "eligible facilities request" ("EFR") includes "any request for modification of a wireless tower or base station that involves" the collocation, removal, or replacement of transmission equipment. Id. § 1455(a)(2). The corresponding regulation defines "base station" as "[a] structure or equipment at a fixed locations that enables Commission-licensed or authorized wireless communications between user equipment and a communications network." 47 C.F.R. § 1.6100(b)(1). "The term includes any structure other than a tower . . . that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process." Id.§ 1.6100(b)(1)(iii). The regulation further provides criteria for assessing whether a modification amounts to a substantial change. Id. § 1.6100(b)(7)(i)-(iv). If a reviewing local government fails to approve or deny an EFR within sixty days, "the request shall be deemed granted." Id. § 1.6100(c)(4). The grant becomes effective only if "the applicant notifies the applicable reviewing authority in writing after the review period has expired . . . that the application has been deemed granted." Id.
T-Mobile continued to submit EFR applications through June 2021. ECF No. 62 ¶ 12. San Francisco failed to timely approve thirty-three of the eighty-seven applications. Id. ¶ 7-9. T-Mobile notified San Francisco that a number of those applications were "deemed granted" under the Spectrum Act. Id. ¶ 8. San Francisco declined to acknowledge those applications as deemed granted, asserting that local regulations require T-Mobile to obtain a "Conditional Use Authorization" to modify the facilities at issue because the modification would alter the classification of the facilities under those regulations. Id. ¶ 10; ECF No. 72 ¶ 17.
B. Procedural Background
T-Mobile filed suit against San Francisco on November 18, 2020, seeking a declaration that certain applications are deemed granted and an injunction requiring San Francisco to issue permits for the wireless facilities in question. ECF No. 1. T-Mobile twice amended its complaint as San Francisco issued permits for some applications while taking no action on others. See ECF Nos. 21 & 28. T-Mobile filed a motion for summary judgment and a motion for a preliminary injunction. ECF Nos. 29 & 30. The Court granted the motions in part, holding that "T-Mobile's installations . . . are and shall be treated as legal by defendants" and enjoining the city "from imposing penalties or in any way preventing T-Mobile from proceeding with installations for T-Mobile's deemed granted applications." T-Mobile West LLC v. City and County of San Francisco, 20-cv-08139-SI, 2021 WL 1056788, at *4-5 (N.D. Cal. Mar. 18, 2021).
T-Mobile filed the operative Third Amended Complaint on October 1, 2021, which seeks substantially similar declaratory and injunctive relief with respect to additional applications which San Francisco has not approved. ECF No. 47. On June 16, 2022, T-Mobile moved for summary judgment as to claims regarding facilities at six sites. ECF No. 61. San Francisco cross-moved for summary judgment and acceded to a declaration that applications with respect to three of the sites are deemed granted. ECF No. 71 at 12. In reply, T-Mobile withdrew an additional site from its motion and complaint, leaving two sites contested. ECF No. 75 at 15. Those sites are located at 491 Haight Street and 3000-3019 Mission Street; the three sites for which San Francisco withdrew its opposition are located at 5630 Mission Street, 1135 Evans Avenue, and 965-985 Geneva Avenue.
T-Mobile's motion mentions two additional sites, but the operative complaints asserts no claims with respect to those sites.
II. JURISDICTION
The Court has jurisdiction under 28 U.S.C. § 1331.
III. LEGAL STANDARD
A party is entitled to summary judgment "only if, taking the evidence and all reasonable inferences in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law." Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104 (9th Cir. 2020) (quoting Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th Cir. 2019)). A dispute is genuine only if there is sufficient evidence "such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Where, as here, the party moving for summary judgment would bear the burden of proof at trial, that party "has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). If the moving party satisfies its initial burden of production, the nonmoving party must produce admissible evidence to show that a genuine issue of material fact exists. Nissan Fire & Marine Ins. Cos., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-1103 (9th Cir. 2000). If the nonmoving party fails to make this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
IV. DISCUSSION
A. Preemption
"Preemption of state law, by operation of the Supremacy Clause, can occur in one of several ways: express, field, or conflict preemption." Cohen v. Apple Inc., 46 F.4th 1012, 1027 (9th Cir. 2022) (quoting Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1178 (9th Cir. 2016)). "Absent express congressional preemption," field preemption occurs " 'when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively,' " and conflict preemption occurs "where 'the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. (alteration in original) (first quoting Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 630, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012); and then quoting Beaver, 816 F.3d at 1179). It is well established that the Spectrum Act expressly "preempts local regulations of collocations and bars states from denying facility modification applications that meet" the statutory criteria. Montgomery Cnty., MD. v. FCC, 811 F.3d 121, 128 (4th Cir. 2015); see also ExteNet Sys., Inc. v. Vill. of Pelham, 377 F. Supp. 3d 217, 226 (S.D.N.Y. 2019); Portland Cellular P'ship v. Inhabitants of Cape Elizabeth, 139 F.Supp.3d 479, 483 (D. Me. 2015).
T-Mobile argues that the Spectrum Act preempts San Francisco's classifications of the wireless facilities at issue and that the EFR applications for those facilities are consequently deemed granted. ECF No. 61 at 20-30. San Francisco argues that the facilities are not "base stations" within the meaning of the Spectrum Act because they were approved "as a special, wireless-specific exception" to San Francisco's "normal and appliable zoning processes." ECF No. 71 at 14.
Specifically, San Francisco's local regulations differentiate between a "Macro" and "Micro" Wireless Telecommunications Service ("WTS") facility. San Francisco Planning Code § 102. Macro WTS facilities are "generally characterized by significant spatial effects and more than two antennas.," whereas Micro WTS facilities are "generally characterized by (a) limited spatial effects; (b) a small number of antennas (typically up to two); an absence of cumulative effects on neighborhood character or aesthetics . . . ; and (d) a location that is not disfavored in the guidelines." Id. A facility "is considered a Macro WTS Facility" by default "unless determined by the Zoning Administrator to be a Micro WTS Facility." Id. Micro WTS facilities are of "Principal Use" such that use is permitted "as of right in each established district where listed for that class of district." Id. § 202.1(d). Macro WTS Facilities, on the other hand, are of "Conditional Use" such that a particular use is not "a matter of right," but is rather subject to approval by the San Francisco Planning Commission. Id. § 102; see also id. §§ 209.2(9), 209.3(9), 209.4(8).
The Planning Commission employs several discretionary factors in determining whether to approve an application for Conditional Use. Id. § 303(c)(1)-(2). T-Mobile's proposed modifications would, in San Francisco's view, alter the classifications of the two contested facilities at issue and render them Macro WTS facilities instead of Micro WTS facilities. San Francisco argues that because the facilities were designated as Micro WTS facilities through an exception to the typical regulatory process, they do not constitute "existing base stations" within the meaning of the Spectrum Act. ECF No. 71 at 7-8.
San Francisco's argument has no foundation in law or logic. While San Francisco repeatedly emphasizes that the administrative approval of Micro WTS facilities occurs without a public hearing as an exception to the "normal" approval procedures, the Spectrum Act requires only that the facilities have "been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process." Id. § 1.6100(b)(1)(iii) (emphasis added). By San Francisco's own account, the facilities at issue were "administratively approved as an 'accessory use' or as a 'micro' facility under the City's Planning Code." ECF No. 71 at 7 (emphases added). That these facilities were approved by San Francisco in the first instance necessarily means that they fall within the ambit of the statute. The FCC's order implementing the Spectrum Act confirms such, stating that "the term 'existing' requires that wireless towers or base stations have been reviewed and approved under the applicable zoning or siting process or that the deployment of existing transmission equipment or the structure received another form of affirmative State or local regulatory approval." In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC Rcd. 12865, 12937, ¶ 174 (Oct. 17, 2014), amended by 30 FCC Rcd. 31 (Jan. 5, 2015).
San Francisco's attempt to characterize the administrative approval of these facilities as an exception to the ordinary approval process ignores that an exception to a process within a regulatory regime is nonetheless part of that regime. And this so-called exception simply provides an alternative approval process; it neither eliminates nor otherwise sidesteps the approval process altogether. San Francisco's characterization thus constitutes an effort to "evade the pre-emptive force of federal law by resorting to creative . . . description." Wos v. E.M.A. ex rel. Johnson, 568 U.S. 627, 636, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013). But "[p]re-emption is not a matter of semantics," and the Supremacy Clause does not permit San Francisco to supplant the federal government's classifications of wireless telecommunications facilities with its own. Id. Because the facilities were approved under the applicable regulatory review process, the Court holds that they constitute "existing base stations" within the meaning of the Spectrum Act.
B. Relief
T-Mobile is entitled to relief because it is otherwise undisputed that (1) the modifications of each base station would not substantially change its physical dimensions according to the criteria set forth in the applicable regulation, and (2) that T-Mobile notified San Francisco that the applications were deemed as required by the regulation. Compare ECF No. 47 ¶¶ 90-95, ECF No. 48 ¶¶ 90-95 with 47 C.F.R. § 1.6100(b)(7)(i)-(iv), id.§ 1.6100(c)(5). Accordingly, the Court declares that the applications for the facilities at the five sites discussed above are deemed granted under 47 C.F.R. § 1.6100.
The parties additionally dispute the scope of appropriate injunctive relief, if any. T-Mobile asks the Court to order San Francisco to issue the permits or, in the alternative, confirm the deemed granted status of the applications. ECF No. 61 at 29-30. San Francisco argues that an order requiring San Francisco to issue the permits would violate the anti-commandeering doctrine under the Tenth Amendment. ECF No. 71 at 15-17.
Although the Ninth Circuit has not yet expressed a view on the issue, the Fourth Circuit has held that the "deemed granted" procedure under the regulation both "comports with the Tenth Amendment" and "obviates the need for the state to affirmatively approve applications." Montgomery Cnty., 811 F.3d at 128. Because "[t]he requested relief should be no more burdensome to [San Francisco] than necessary to provide complete relief to [T-Mobile]," and because there is no need for San Francisco to take affirmative action on applications deemed granted, the Court declines to order San Francisco to issue the permits. East Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 986 (9th Cir. 2020) (quoting Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018)), rev'd in part, vacated in part, — U.S. —, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020). Instead, the Court hereby orders San Francisco to treat the five applications at issue as deemed granted and enjoins San Francisco from imposing penalties or in any way preventing T-Mobile from proceeding with the installations set forth in the applications.
CONCLUSION
For the foregoing reasons, T-Mobile's motion for summary judgment is granted in part and denied in part, and San Francisco's cross-motion is denied.
IT IS SO ORDERED.