City Seeks 11th-Hour Delay for Opening Brief in Its Crown Castle Appeal

Good cause exists for the 5th Circuit U.S. Court of Appeals to grant Pasadena, Texas, a Level 1 deadline extension to Dec. 30 for filing the principal brief in its appeal to vacate a lower court’s Aug. 2 order granting summary judgment to Crown Castle, said the city’s 11th-hour motion Wednesday (docket 22-20454) about when the brief was due. Pasadena missed the deadline because its attention was focused on resolving the dispute with Crown Castle through a private mediator, said the city.

Crown Castle opposes Pasadena’s requested 30-day extension, said the city, but is unopposed to a seven-day postponement. It was Pasadena’s third extension request since the appeal was docketed Sept. 1 and the first that Crown Castle has opposed. Under 5th Circuit rules, a Level 1 deadline extension request is for 1-30 days. A Level 2 request Miss for 30 days or more.

Crown Castle and Pasadena participated in a private mediation session Nov. 21, said the motion. That was two weeks past its previous Nov. 9 filing deadline and nine days before the new deadline. “Despite their best efforts, the parties reached an impasse and were unable to resolve their dispute following a full-day mediation,” said the city.

After the two sides reached their mediation impasse, Pasadena attorneys with Lewis Brisbois didn't have “sufficient time to prepare an appropriate principal brief” because they've been bogged down with at least five other unrelated cases in Texas and in Las Vegas, said the city. Their law offices were closed for the four-day Thanksgiving weekend, further exacerbating the time crunch, it said.

Crown Castle sued Pasadena in September 2020, asserting the Telecommunications Act preempts the spacing requirement in the city’s design manual because that manual significantly limits the locations where it may install small-cell nodes and node support poles in the public rights of way (ROWs). The manual also has an underground requirement that forces the nodes and the accompanying radio equipment to be buried in residential areas, and Crown Castle contends that’s not technically feasible.

In granting summary judgment in Crown Castle’s favor, U.S. District Judge David Hittner for Southern Texas in Houston said a “plain reading” of the manual shows the spacing requirement for small node networks is “clearly more burdensome” than the requirements applicable to other users of the public ROWs, in his Aug. 2 order. The manual’s underground requirement also is more burdensome because it lacks exceptions for technical infeasibility, it said. “That these requirements are more burdensome and discriminatorily applied indicates these requirements are not a reasonable exercise” of Pasadena’s power to manage its public rights of way, it said.