5th Circuit Wrongly Sided With Crown Castle, Says City’s Petition for Reconsideration

Congress entrusts the FCC, not the courts, with the authority to decide whether to preempt local ordinances under Section 253 of the Telecommunications Act after notice and the opportunity for comment, said Pasadena, Texas, in a 5th U.S. Circuit Appeals Court petition Monday (docket 22-20454). The city is seeking en banc reconsideration of the panel’s Aug. 4 decision affirming the district court’s ruling in appellee Crown Castle’s favor (see 2308170035).

The 5th Circuit, like the district court, ruled that Pasadena’s design manual unduly imposed burdensome requirements on Crown Castle’s small-node network.

Contrary to Congress’ intended “enforcement scheme,” the panel held that a private party may bring an equitable action to preempt local ordinances under Section 253 “and enjoin local governments from enforcing their ordinances,” said the petition. The resulting injunction will prevent Pasadena, and possibly other municipalities, “from enforcing provisions of a model design manual ordinance,” it said. The 5th Circuit should grant Pasadena’s petition to ensure that preemption determinations under Section 253 “are made as Congress intended -- by the FCC following notice and public comment,” it said.

Section 253 “preserves the authority of local governments to manage public rights-of-way,” said the petition. The panel held that Pasadena waived Section 253 because the city didn’t plead it as an affirmative defense, it said. The further panel held that even had the city pleaded Section 253, the statute “still preempts the design manual’s spacing and undergrounding requirements” because those requirements are discriminatory against Crown Castle’s small-node networks, it said.

But the panel “made a significant error for three separate reasons,” said the petition. The reservation of local authority under Section 253 isn’t an affirmative defense but “central to Crown Castle’s claim” that Section 253 “preempts the design manual ordinance,” it said.

The panel also “misread” Section 253 because its text doesn’t limit the authority of local governments to manage public ROWs, said the petition. Its interpretation conflicts with the 2nd Circuit’s “construction” of Section 253 in the 1999 decision in Cablevision v. Public Improvement Commission, it said. The panel also was wrong to declare the design manual ordinance discriminatory against Crown Castle “because it applies to all providers who install cellular equipment” in the city’s ROWs, it said.

The panel also erred because Crown Castle wasn’t seeking to provide telecommunications services directly to the public, said the petition. Crown Castle, “by its own allegations,” contracted with T-Mobile “to secure permits and install equipment T-Mobile would use to provide telecommunications service,” it said. The panel’s errant conclusion, that Crown Castle, by providing equipment to T-Mobile, would also provide telecommunications services directly to the public “rewrites” Congress’ definition of telecommunications services, it said. It also expands the scope of Section 253 “far beyond what Congress intended,” it said.