Crown Castle Stands by Claim City ‘Overtly Discriminates’ Against Small Cells

The July 24 letter from Pasadena, Texas, denying Crown Castle’s contentions that the city’s design manual “overtly discriminates” against small-cell technology (see 2307250038) isn’t a proper Rule 28(j) letter because it doesn’t “identify any new legal authorities,” Crown Castle wrote the 5th U.S. Circuit Court of Appeals in a responding letter Wednesday (docket 22-20454). “Even worse, it is incorrect,” it said.

Crown Castle sued Pasadena in September 2020, asserting the Telecommunications Act preempts the spacing requirement in the city’s manual because that manual significantly limits the locations where in the public rights of way it may install small-cell nodes and node support poles. Pasadena is appealing the district court finding that a “plain reading” of the manual shows the spacing requirement for small-node networks is “clearly more burdensome” than the requirements applicable to other ROW users.

The regulations at issue apply to the manual’s 300-foot spacing requirement for new node-support poles, plus the manual’s undergrounding requirement, said Crown Castle. The regulations apply only to small-cell technology, “as their definitions confirm,” it said.

A node support pole is defined as a pole installed by a network provider for the primary purpose of supporting a network node,” said Crown Castle. A network node refers to equipment at a fixed location that enables wireless communications between user equipment and a communications network, it said. As Pasadena acknowledges, the network node definition includes a variety of equipment, but not a macro tower, it said. Pasadena, “crucially,” overlooks that exclusion, it said.

A macro tower is a pole higher than the height parameters prescribed by Texas law that’s capable of supporting antennas, said Crown Castle. Those height parameters are the lesser of 10 feet above the tallest existing utility pole within a specified area, or 55 feet above ground level, it said. Those height parameters “deliberately cover” what the FCC’s 2018 small-cell order called large, 200-foot towers that marked the 3G and 4G deployments of the past, it said. Crown Castle’s expert affirmed that a macro site is typically a tower or structure of 80-180 feet tall, it said. Small cells are placed below the height of macro towers, it said.

Though “the route is circuitous, the conclusion is straightforward,” said Crown Castle. Because the prior-generation network nodes must be installed on macro towers, they're “exempt from the regulations at issue,” it said. That’s “no accident,” it said: “The whole point of the height parameters is to differentiate between previous wireless technology and the new small-cell technology.” Pasadena’s design manual “overtly discriminates against small cell technology, which is impermissible,” it said.