5th Circuit Denies Pasadena Mandate Stay In Fight to Bar Crown Castle’s Towers

The 5th U.S. Circuit Court of Appeals denied the motion of Pasadena, Texas, to stay the issuance of the mandate in its case against Crown Castle, pending its filing of a cert petition at the U.S. Supreme Court, said an order Friday (docket 22-20454) signed by U.S. Circuit Judge Jerry Smith. The mandate is scheduled for issuance Tuesday.

Issuance of the mandate would terminate the 5th Circuit’s jurisdiction over the case. Without the stay, the injunction preventing Pasadena from enforcing its local ordinance against Crown Castle will take effect. The injunction bars the city from using the spacing restrictions in its federally preempted design manual to block Crown Castle’s installation of its small node networks in the public rights-of-way.

Denial of the stay in the issuance of the mandate was the 5th Circuit’s third strike against Pasadena. In an Aug. 4 decision, the 5th Circuit affirmed the district court’s ruling against the design manual in Crown Castle’s favor (see 2308070002). The 5th Circuit, in a Sept. 25 decision, denied the city’s petition for a rehearing or rehearing en banc of the Aug. 4 decision (see 2309260032).

The 5th Circuit should stay the mandate because the SCOTUS cert petition “will present substantial questions, including questions about the district court’s authority to preempt local ordinances,” under the federal Telecommunications Act, said Pasadena’s unsuccessful motion for the stay. Pasadena’s cert petition “will present the substantial question of whether a federal court has equitable authority to make preemption determinations” that Congress assigned to the FCC, it said.

Congress vested the FCC with authority to preempt state and local regulations under Section 253 of the TCA, said the city’s motion for a stay. But the district court “made its own preemption determination,” and enjoined the city from enforcing “its duly enacted ordinance,” it said. SCOTUS “has called into question” the authority of federal courts to make preemption determinations where Congress “has vested that authority in a federal agency,” it said, citing the 2015 decision in Armstrong v. Exceptional Child Center.

Section 253(c) limits the scope of federal preemption “by preserving the traditional authority of state governments to manage their rights-of-way,” said Pasadena’s stay motion. Its cert petition “will present at least three substantial issues concerning application and construction of this reservation of state and local governmental authority,” it said.

There’s “good cause” for granting the stay in the issuance of the mandate, said Pasadena’s unsuccessful motion. In the absence of a stay, the city “will be immediately enjoined from enforcing its duly enacted ordinance,” including the design manual, it said. “Irreparable harm” will result if Crown Castle installs towers and equipment in the city’s rights-of-way in violation of the ordinance, it said. That harm won’t be confined to Pasadena, as 10 other municipalities in South Texas “have adopted the same model ordinance,” it said.