Petition for Writ of Certiorari — City of Pasadena, Texas, Petitioner v. Crown Castle Fiber, L.L.C.

No. 23In the

Supreme Court of the United States

City of Pasadena, Texas,

Petitioner,

v.

Crown Castle Fiber, L.L.C.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

William S. Helfand

Counsel of Record

Lewis Brisbois Bisgaard

& Smith, LLP

24 Greenway Plaza, Suite 1400

Houston, Texas 77046

(832) 460-4606

bill.helfand@lewisbrisbois.com

Counsel for Petitioner

326227

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

Respondent Crown Castle Fiber, LLC sued the City

of Pasadena, Texas (the City) for a judgment declaring

47 U.S.C. §253 of the Federal Telecommunications

Act (the FTA) preempts spacing and undergrounding

requirements set forth in the City’s Design Manual for

the Installation of Network Nodes1 and Support Poles2 in

the City’s public rights-of-way, which the City adopted by

a duly enacted ordinance. The district court held Crown

Castle’s claim is justiciable and entered a judgment

declaring §253 preempts the spacing and undergrounding

requirements and prospectively enjoining the City from

enforcing the spacing and undergrounding requirements.

The Fifth Circuit affirmed the judgment. The issues

presented are:

I. Whether 47 U.S.C. §253 allows a private party to sue

a State or local government in equity to preempt a duly

enacted State or local regulation where Congress, as part

of its comprehensive enforcement mechanism, entrusted

the Federal Communications Commission (FCC) with

authority to preempt State or local regulations only

“to the extent necessary to correct” any violation of or

inconsistency with §253, and to do so only after providing

notice and the opportunity for public comment. 47 U.S.C.

§253(d).

1. Network nodes are the equipment that enable communications

with a cellular network. Tex. Local G ov ’t Code §284.002(12).

2. Node support poles are the poles—similar to telephone or

utility poles–on which a network node is placed. Tex. Local G ov ’t

Code §284.002(14).

ii

II. If the Court concludes Crown Castle and others

may bring equitable actions to preempt State and local

regulations under §253, whether §253 preemption

reaches measures taken by State and local governments

to manage public rights-of-way where the plain and

unambiguous language of 47 U.S.C. §253(c) places State

and local management of rights-of-way beyond the reach

of preemption under §253, and does not limit State and

local governments to measures that are nondiscriminatory

and competitively neutral.

iii

PARTIES TO THE PROCEEDING

The Petitioner, the City of Pasadena, Texas, is a

municipality in the State of Texas, and was the DefendantAppellant below.

The Respondent, Crown Castle Fiber, LLC, formerly

known as Crown Castle NG Central, LLC, is a New

York limited liability company with its principal place

of business in the State of Texas, and was the PlaintiffAppellee below.

iv

RELATED PROCEEDINGS

Crown Castle Fiber, L.L.C. v. City of Pasadena,

Texas, No.H-20-3369, in the U.S. District Court for the

Southern District of Texas, Judgment entered August 2,

2022.

Crown Castle Fiber, L.L.C., No. 22-20454, in the U.S.

Court of Appeals for the Fifth Circuit, Judgment entered

August 4, 2023, petitions for rehearing and rehearing en

banc denied September 25, 2023.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTIT U TIONAL A N D STAT U TORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The dispute and the proceedings in the

district court . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. The proceedings in the court of appeals . . . 4

REASONS FOR GRANTING THE PETITION . . . . . 6

vi

Table of Contents

Page

I. The Court should grant Certiorari to

vindicate Congress’s intent to entrust the

Federal Communications Commission

with authority to preempt State and local

regulations under §253 . . . . . . . . . . . . . . . . . . . . . 6

II. The Court should grant Certiorari because

47 U.S.C. §253(c) plainly states §253 does

not preempt actions taken by State and local

governments to manage public rights-of-way . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

TABLE OF APPENDICES

Page

A P P E N DIX A — O P I N IO N OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FIFT H CIRCU IT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DIX B — ORDER OF T H E

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

TEXAS, HOUSTON DIVISION, FILED

AUGUST 2, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

A P P E N DIX C — O P I N IO N OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FIFT H CIRCU IT, FILED

SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . . . . . . . . 68a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Armstrong v Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 11

Barnhart v. Thomas,

540 U.S. 20 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cablevision, Inc. v.

Public Improvement Comm’n,

184 F.3d 88 (2nd Cir. 1999) . . . . . . . . . . . . . . . . . . 13, 15

Crown Castle Fiber, L.L.C. v.

City of Pasadena, Texas,

618 F. Supp. 3d 567 (S.D. Tex. 2022) . . . . . . . . . . . . . . 1

Crown Castle Fiber, LLC v.

City of Pasadena, Texas,

76 F.4th 425 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 1

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Douglas v. Indep. Living Ctr. Of S. Cal., Inc.,

565 U.S. 606 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

ix

Cited Authorities

Page

Ex Parte Young,

209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FTC v. Mandel Brothers, Inc,

359 U.S. 385 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Green Valley Special Util. Dist. v.

City of Schertz,

969 F.3d 460 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 6

In re Matter of Classic Telephone, Inc.,

11 FCC Rcd 13082 (1996) . . . . . . . . . . . . . . . . . . . . . . 13

Lockhart v. United States,

577 U.S. 347 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

N.J. Payphone Ass’n v. Town of W. N.Y.,

299 F.3d 235 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 13

NextG Networks of NY, Inc. v. City of New York,

513 F.3d 49 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . 6

x

Cited Authorities

Page

Qwest Corp. v. City of Santa Fe, N.M.,

380 F.2d 1258 (10th Cir. 2004) . . . . . . . . . . . . . . . . 6, 13

Rees v. Watertown,

86 U.S. 107 (1874) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Seminole Tribe v. Fla.,

517 U.S. 44 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sims Lessee v. Irvine,

3 Dall 425 (1799) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Southwestern Bell Tel., L.P., v. City of Houston,

529 F.3d 257 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . 5, 6

United States v. Ron Pair Enters.,

489 U.S. 235 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes and Other Authorities

U.S. Const. amend. XI . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const. Art. 6, Cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

41 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

xi

Cited Authorities

Page

47 U.S.C. § 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

47 U.S.C. § 153(53) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

47 U.S.C. § 253 . . . . . . 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 15, 16

47 U.S.C. § 253(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

47 U.S.C. § 253(c) . . . . . . . . . . . . . . . 4, 5, 11, 12, 13, 14, 15

47 U.S.C. § 253(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

47 U.S.C. § 332(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

47 U.S.C. § 332(c)(7)(B)(v) . . . . . . . . . . . . . . . . . . . . . . . . . 2

47 U.S.C. § 332(c)(7)(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

47 U.S.C. § 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

47 U.S.C. § 401(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Local Gov’t Code § 284.001(c) . . . . . . . . . . . . . . . . . 2

Tex. Local Gov’t Code § 284.0011(a)(2) . . . . . . . . . . . . . 2

Tex. Local Gov’t Code § 284.109 . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

xii

Cited Authorities

Page

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Garner, Garner’s Dictionary of Legal Usage

(3d Ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

J. Pomeroy, Treatise on Equity Jurisprudence

§ 325 (3d ed. 1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Preemption of State or Local Statutes: Suggested

Guidelines for Petitions for Ruling Under Section

253 of the Communications Act, 63 FR 66806

(FCC) (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Scalia & Garner, Reading Law: The Interpretation

of Legal Texts 150 (West 2012) . . . . . . . . . . . . . . . . . 15

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

OPINIONS BELOW

The published opinion of the United States Court of

Appeals for the Fifth Circuit, filed on August 4, 2023, in

Crown Castle Fiber, LLC v. City of Pasadena, Texas, 76

F.4th 425 (5th Cir. 2023), is set forth at App. A, pages 1a-28a.

The published opinion of the United States District

Court for the Southern District of Texas, Houston

Division, filed on August 2, 2022, in Crown Castle Fiber,

L.L.C. v. City of Pasadena, Texas, 618 F. Supp.3d 567 (S.D.

Tex. 2022), is set forth at App. B, pages 29a-67a.

The per curiam opinion of the United States Court

of Appeals for the Fifth Circuit on Petition for Rehearing

and Rehearing En Banc filed on September 25, 2023 in

Crown Castle Fiber, LLC v. City of Pasadena, Texas, No.

22-20454 (5th Cir. 2023), is set forth at App. C, page 68a.

JURISDICTION

The Fifth Circuit entered judgment against the

Petitioner on August 4, 2023, and denied Petitioner’s

petitions for panel rehearing and en banc reconsideration

on September 25, 2023. This Court has jurisdiction under

28 U.S.C. §1254(1) and Supreme Court Rule 30 because

Petitioner filed this petition for a writ of certiorari on the

first business day following 90 days after the Fifth Circuit

denied Petitioner’s petition for rehearing and petition for

rehearing en banc.

Petitioner seeks the Court’s review under Supreme

Court Rule 10 because the Fifth Circuit decided important

issues of federal law that have not been, but should be,

settled by this Court.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following Constitutional and statutory provisions

involved are reproduced in the Appendix D, pages 69a-73a:

U.S. Const. A rt 6, Cl. 2

42 u.s.c. §1983

47 U.S.C. §153(53)

47 U.S.C. §253

47 U.S.C. §332(c)(7)(B)(v)

47 U.S.C. §401

STATEMENT

A.

The dispute and the proceedings in the district

court.

The State of Texas delegates “to each municipality the

fiduciary duty, as a trustee, to manage the public rightof-way for the health, safety and welfare of the public,

subject to state law.” Tex. Local Gov ’t Code §284.0011(a)

(2). The Texas Legislature, by statute, has prescribed

requirements and limitations that Texas municipalities

are to follow in regulating installation of network nodes

and node support poles in public rights-of-way. Tex Local

G ov ’t Code §284.001(c). To this end, the Legislature

authorized each municipality to enact a design manual

governing installation of network nodes and node support

3

poles in public rights-of-way. T ex . Local G ov ’t Code

§284.109.

In 2017, the City of Pasadena enacted an ordinance

adopting a Design Manual for the Installation of Network

Nodes and Node Support Poles in its public rights of way.

(App. 4a). The manual tracks the statute and requires

new node support poles to “be spaced apart from existing

utility poles or Node Support poles . . . no less than 300 feet

from [an existing] utility pole or another Node Support

Pole.” (App. 4a n.3 (ellipses added)). The City enacted this

spacing requirement to “minimize the hazards of poles

adjacent to road ways and to minimize [the] effect on

property values and aesthetics in the on the area.” (App.

4a (alterations by the court)).

Crown Castle contracted to provide T-Mobile with a

small cell, distributed antenna systems network in the

Houston metropolitan area, which includes the City of

Pasadena. (App. 3a). Crown Castle applied to the City

for 67 right-of-way permits in nonresidential locations.

(App. 5a). Crown Castle divided the applications into

three batches. (App.5a). The City rejected 16 of 22 of the

applications in Crown Castle’s first batch because they

violated the spacing requirement. (App. 5a).

Crown Castle sued the City for a declaratory judgment

preempting the spacing requirement and an injunction

forbidding the City from enforcing the requirement. (App.

6a). The City moved to dismiss Crown Castle’s claim under

Fed. R. Civ. P. 12(b)(1) and 12(b)(6) asserting, among other

grounds, that Crown Castle’s claims are nonjusticiable

because the FTA does not authorize a private action to

enforce §253 and, even if it did, preemption does not reach

4

State and local management of public rights of way under

47 U.S.C. §253(c). (App. 6a, 36a). The district court denied

the City’s motion to dismiss.(App. 6a).

In 2021, after Crown Castle filed suit, the City

adopted an updated design manual requiring network

node equipment to be placed underground, other than

“antenna that cannot operate when placed underground.”

(App. 4a-5a). Although the City had not denied any Crown

Castle permit application based on the undergrounding

requirement in residential areas, Crown Castle filed

an amended complaint seeking a declaratory judgment

preempting the undergrounding requirement under §253

and an injunction forbidding the City from enforcing the

undergrounding requirement. (App. 6a-7a).

The district court granted summary judgment to

Crown Castle. The district court found §253 preempts

the spacing and undergrounding requirements and

permanently enjoined the City from enforcing these

requirements.( App. 58a, 62-63a).

B. The proceedings in the court of appeals.

The City appealed and a panel of the Fifth Circuit

affirmed the district court’s judgment in a unanimous

opinion. The City challenges two of two holdings in this

Petition.

First, the court of appeals rejected the City’s argument

that Crown Castle’s claims are not justiciable because §253

does not create private rights or a private right of action.

Consistent with its own precedent, the court recognized

that §253(a) focuses on prohibitions and “does not establish

5

a private right of action enforceable under 42 U.S.C.

§1983.” (App. 10a-11a (citing Southwestern Bell Tel., L.P.,

v. City of Houston, 529 F.3d 257, 261 (5th Cir. 2008))).

Nevertheless, the court affirmed the district court’s

judgment, holding that “Crown Castle is not seeking a

legal remedy through §1983,” but, instead, “brings a claim

that the FTA preempts the City’s manual,” (App. 11a),

and the “ability to sue to enjoin unconstitutional actions

by state and federal officers is the creation of courts of

equity.” (App. 13a (quoting Armstrong v Exceptional

Child Ctr., Inc,, 575 U.S.320, 327 (2015)).

Second, the court rejected the City’s argument

that §253(c) excludes from preemption measures taken

by State and local governments to manage public

rights-of-way. (App. 26a-27a).The panel held the §253(c)

limitation excludes State and local regulations managing

public rights-of-way only where those regulations are

competitively neutral and nondiscriminatory. (App. 27a).

The court then concluded the spacing and undergrounding

requirements, although universally applicable, somehow

discriminate against small cell technology. (App. 27a).

The City moved for panel rehearing and en banc

reconsideration. The Fifth Circuit denied both motions

on September 25, 2023. (App. 68a).

6

REASONS FOR GRANTING THE PETITION

I.

The Court should grant Certiorari to vindicate

Cong r e s s’s i nt ent t o ent r ust the Fe der a l

Communications Commission with authority to

preempt State and local regulations under §253.

“If Congress wishes to create new rights enforceable

under §1983 it must do so in clear and unambiguous

terms.” Gonzaga Univ. v. Doe, 536 U.S. 273, 325 (2002).

In the wake of Gonzaga Univ., the court below and

other circuits recognized §253 of the FTA does not

create a private right enforceable under §1983. Op. at 10;

Southwestern Bell Tel., L.P., 529 F.3d at 260-61; NextG

Networks of NY, Inc. v. City of New York, 513 F.3d 49, 5254 (2d Cir. 2008); Qwest Corp. v. City of Santa Fe, N.M.,

380 F.2d 1258, 1265 (10th Cir. 2004).

Despite the absence of any privately enforceable

right under §253, the court of appeals held Crown Castle

may sue the City in equity to preempt the spacing and

undergrounding requirements in the City ordinance under

§253. App. 1a-11a. The Court should grant Certiorari

to vindicate Congress’s intent. An equitable action, like

the one the lower courts authorized here, “substantively

change[s] the federal rule established by Congress in

the [FTA]” and “effect[s] a complete end run around

this Court’s implied right of action and 41 U.S.C. §1983

jurisprudence.” Douglas v. Indep. Living Ctr. Of S. Cal.,

Inc., 565 U.S. 606, 619 (2012) (Roberts, C.J., dissenting);

see also, Green Valley Special Util. Dist. v. City of Schertz,

969 F.3d 460, 499 (5th Cir. 2020) (Oldham, J., concurring).

7

The equitable action authorized by the courts below

has no basis in either the Supremacy Clause or general

equity.

The Supremacy Clause does not support an equitable

action to preempt State and local regulations under

§253(c). The Court put this theory to rest in Armstrong

v Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015).

The “Supremacy Clause is not the source of any federal

rights, and certainly does not create a cause of action.”

Id. (citations omitted). Rather than create a privately

enforceable right, the Supremacy Clause only establishes

a rule of decision that “instructs courts what to do when

state and federal law clash.” Id.

General equity does not support Crown Castle’s action

because, as the lower courts acknowledged, §253 does not

create a private right and, without a private right there

should be no equitable remedy. “It is a longstanding maxim

that ‘[e]quity follows the law.’” Douglas, 565 U.S. at 620

(Roberts, C.J., dissenting) (quoting J. Pomeroy, Treatise

on Equity Jurisprudence §325 (3d ed. 1905)) (modification

by the Court). “A court of equity may not ‘create a remedy

in violation of law, or even without the authority of law.’”

Id. (quoting Rees v. Watertown, 86 U.S. 107, 122 (1874))

(modification added).

If a private action in equity to enforce a federal

statute that does not create a private right ever exists,

it certainly does not arise to enforce §253. Congress

created its own clear mechanism for enforcing §253. And

Congress’s mechanism does not include private equitable

actions to preempt and enjoin enforcement of State and

local regulations. Rather, Congress vested the FCC alone

8

with authority to preempt State and local regulations

under §253. 47 U.S.C. §253(d). Congress charged the FCC

with making a balanced and nuanced determination by

preempting State or local regulations only to the extent

necessary to resolve any conflict between the State or

local regulation and §253.

Armstrong demonstrates the reason why there is no

equitable action to preempt State and local regulations

under §253. In Armstrong, this Court held private parties

could not sue the State of Idaho in equity to enforce a

provision of the Medicaid Act where Congress directed

the Secretary of Health and Human Services to enforce

the provision by withholding funds from the State.

Armstrong, at 328. “As we have elsewhere explained, the

‘express provision of one method of enforcing a substantive

rule suggests that Congress intended to preclude others,’”

this Court wrote. Id. (quoting Alexander v. Sandoval, 532

U.S. 275, 290 (2001)). Admittedly, this Court recognized

that entrusting enforcement to a federal agency “might

not, by itself, preclude the availability of equitable relief,”

but noted “it does so when” the determination Congress

directs to a federal agency is “judgment laden” and

“judicially unadministrable.” Id.(emphasis in original).

This is equally tr ue of the §2 5 3 preemption

determination Congress vested exclusively in the FCC.

Congress directed the FCC to decide whether, when and to

what extent §253 preempts a State or local regulation. 47

U.S.C. §253(d). The preemption determination Congress

directed the FCC to make under §253(d) is indeed

judgment laden. The FCC must tailor its decision by

“preempt[ing] the enforcement of such statute, regulation,

or legal requirement [only] to the extent necessary to

9

correct such violation or inconsistency.” Id.1 And the

manner in which Congress directed the FCC to make this

determination is judicially unadministrable as Congress

requires the FCC to provide “notice and the opportunity

for public comment” before preempting any State or local

regulation. Id.

In short, Congress chose agency expertise and

uniformity and rejected the “inconsistent interpretations

and misincentives that can arise out of an occasional

inappropriate application of the statute in a private

action.” Id. at 329 (quoting Gonzaga Univ., 536 U.S. at

292 (Breyer, J., concurring in judgment)).

If more is necessary to demonstrate Congress did

not intend to authorize courts to preempt State and

local regulations, it is found in the fact that §253(d) is

just one part of Congress’s enforcement mechanism.

Congress created a legal remedy by allowing a party

to sue to set aside to denial of or failure to act upon an

application for a permit to install cellular equipment. 47

U.S.C.§332(c)(7)(v). Crown Castle did not avail itself of

this legal remedy because it did not sue to set aside the

City’s denial of any permit application. 2 Rather, Crown

1. The FCC’s guidelines direct parties seeking preemption of

a statute or ordinance to “submit information on whether and how

the Commission could tailor a decision to preempt the enforcement

of an offending legal requirement only ‘to the extent necessary to

correct such violation or inconsistency’ as required by section 253(d).”

Preemption of State or Local Statutes: Suggested Guidelines for

Petitions for Ruling Under Section 253 of the Communications Act,

63 FR 66806 *66807 (FCC) (1998).

2. Additionally, Crown Castle did not sue the City within the

thirty-day deadline under §332(c).

10

Castle sought a different and much broader remedy than

the remedy Congress provided: a declaration preempting

the spacing and undergrounding requirements and an

injunction forbidding the City from enforcing the spacing

and undergrouning requirements by denying, based on

those requirements, future permit applications yet to

be presented, for locations yet to be identified, filed by

parties yet to be ascertained, under circumstances yet

to be determined.

Clearly, Congress did not authorize courts to grant

this sweeping remedy. Far from it, Congress mandated the

FCC alone make a tailored determination by preempting

State or local regulations only to the extent necessary to

comply with §253, and to do so only after providing notice

and the opportunity for public comment. 3

In the context of the Eleventh Amendment, where “the

same general principle applies,” this Court cautioned lower

courts against supplementing an enforcement mechanism

Congress specifies in a statute. Seminole Tribe v. Fla., 517

U.S. 44, 74 (1995). The Court articulated this rule: “where

Congress has prescribed a detailed remedial scheme for

the enforcement against a State of a statutorily created

right, a court should hesitate before casting aside those

limitations and permitting an action against a state officer

based upon Ex Parte Young.” Id. (citing Ex Parte Young,

209 U.S. 123 (1908)).

3. Other provisions of Chapter 47 further underscore

Congress’s intent not to authorize a judicially fashioned equitable

preemption action. Congress charges the FCC with “execut[ing]

and enforc[ing] the provisions of” Chapter 47. 47 U.S.C. §151.

Congress provides a mechanism for judicially enforcing Chapter 47

on “application of the Attorney General of the United States at the

request of the Commission.” 47 U.S.C. §401(a).

11

Courts have “no warrant to revise Congress’s

scheme simply because Congress did not ‘affirmatively’

preclude the availability of a judge-made action at

equity.” Armstrong, 575 U.S. at 329. Revise Congress’s

enforcement scheme is precisely what the lower courts did

in this case. The Court should grant Certiorari to vindicate

Congress’s intent under the FTA and other statutes where

Congress has chosen not to authorize a private action and

has, instead, adopted its own enforcement mechanism.

II. The Court should grant Certiorari because 47

U.S.C. §253(c) plainly states §253 does not preempt

actions taken by State and local governments to

manage public rights-of-way.

Section 253(c) places State and local measures to

manage public rights of way beyond the reach of §253

preemption:

(c) State and local government authority.

Nothing in this section affects the authority of a

State or local government to manage the public

rights-of-way or to require fair and reasonable

compensation f rom t elecommunications

providers, on a competitively neutral and

nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis, if

the compensation is publicly disclosed by such

government.

47 U.S.C. §253(c) (emphasis added).

The courts below mistakenly read §253(c) to only place

State and local authority to manage public rights-of-way

12

outside the scope of §253 preemption if the State or local

government exercises that authority in a manner that is

nondiscriminatory and competitively neutral manner.

This mistaken reading conflicts with plain language

of §253(c). Other circuit courts and the FCC have made

the same error. See infra. The Court should grant

certiorari to provide guidance on applying §253(c) in

accordance with its plain meaning.4 “Where . . . Congress

has superseded state legislation by statute, our task is

to ‘identify the domain expressly preempted.’” Dan’s

City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 259 (2013)

(quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

541 (2001)). The preemption inquiry focuses on the words

of the statute because that is the best evidence of what

Congress intended. Id. Clauses like §253(c) limit the scope

of express preemption. Geier v. Am. Honda Motor Co.,

529 U.S. 861, 868 (2000). 5

In discerning the meaning of §253(c), the Court’s task

“begins where all such inquiries must begin: the language

of the statute itself.” United States v. Ron Pair Enters.,

489 U.S. 235, 241 (1989). “In this case it is also where

the inquiry should end, for where, as here, the statute’s

language is plain, the sole function of the courts is to

enforce it according to its terms.” Id.

4. The court of appeals mistakenly characterized §253(c) as a

“safe harbor” to be raised as an affirmative defense to preemption.

Op. at 21. This is a mistaken description of the statute’s limitation on

the reach of preemption. On the other hand, a safe harbor is typically

“an area of protection” of conduct that a statute otherwise reaches.

Garner, Garner’s Dictionary of Legal Usage (3rd Ed. 2009).

5. There is no claim and no holding of implied preemption.

13

The error here arises because §253(c) “is quite

inartfully drafted and has created a fair amount of

confusion.” N.J. Payphone Ass’n v. Town of W. N.Y., 299

F.3d 235, 240 (3rd Cir. 2002). The Second Circuit found

a syntactical analysis of §253(c) leads to the conclusion

that the “nondiscriminatory and competitively neutral

requirement” limits the authority of a State or local

government to require compensation, but not State or local

authority to manage public rights of way. Cablevision,

Inc. v. Public Improvement Comm’n, 184 F.3d 88, 101 (2nd

Cir. 1999). Nevertheless, the FCC has looked beyond the

language of §253(c) to the FTA’s Legislative history to

conclude §253(c) only excludes State and local authority to

manage rights of way where the State or local government

exercises that authority in a nondiscriminatory and

competitively neutral manner. In re Matter of Classic

Telephone, Inc., 11 FCC Rcd 13082 *13103 (1996). The

Third and Tenth Circuits have also looked beyond the

language of the §253(c) to the legislative history. Qwest

Corp. v. City of Santa Fe, 380 F.3d 1258, 1272 (Legislative

intent and “the scant legislative history available on the

topic” supports the interpretation); N.J. Payphone Ass’n,

299 F.3d at 245 (looking to the “statutory framework” and

Legislative debate).

Section 253(c) may be inartfully drafted and

confusing, but it is not ambiguous. The plain language of

the §253(c) allows only one conclusion: §253 does not impair

the authority of State and local governments to manage

public rights-of-way, unlike the authority of State and local

governments to require compensation for use of publicrights-of-way which, §253(c) specifies, State and local

governments may only exercise in a nondiscriminatory

and competitively neutral manner. The Fifth Circuit erred

by conflating two distinct regulatory authorities.

14

Section 253(c) identifies two distinct categories of

State and local authority separated by the disjunctive

“or:” (1) authority to manage public rights of way, or (2)

authority to require fair and reasonable compensation for

use of public rights-of-way. 47 U.S.C. §253(c)(emphasis

added). The phrase “on a competitively neutral and

non-discriminatory basis” follows the phrase “require

compensation.” The last antecedent canon teaches the

phrase “on a competitively neutral and non-discriminatory

basis” conditions the phrase that precedes it, “require fair

and reasonable compensation,” but does not condition or

limit the more remote phrase, “managing public rights-ofway.” Lockhart v. United States, 577 U.S. 347, 351 (2015)

The last antecedent “rule provides that ‘a limiting

clause or phrase . . . should ordinarily be read as

modifying only the noun or phrase that it immediately

follows.” Id. (quoting Barnhart v. Thomas, 540 U.S. 20,

26 (2003)) (modification by the Court).”This Court has

applied the rule from our earliest decisions to our more

recent.” Id. (citing Sims Lessee v. Irvine, 3 Dall 425, 444

n. (1799); FTC v. Mandel Brothers, Inc, 359 U.S. 385, 389

n. 4 (1959); Barnhart, 540 U.S. at 26)). “[T]he rule of the

last antecedent is not absolute and can be overcome by

other indicia of meaning,” namely the statutory context.

Id. at 352. The Court’s inquiry into the statutory context

of §253(c) “begins with the internal logic of that provision.”

Id.

The internal logic of §253(c) confirms the last antecedent

canon controls and the phrase “nondiscriminatory and

competitively neutral” does not limit State and local

authority to manage public rights-of-way. The phrase

“on a competitively neutral and nondiscriminatory

15

basis” is embedded between “require fair and reasonable

compensation from telecommunications providers” and

“for use of public rights-of-way on a nondiscriminatory

basis,” which is itself followed by the phrase “if the

compensation is publicly disclosed by such government.” 47

U.S.C. §253(c). This “traps the phrase ‘on a competitively

neutral and nondiscriminatory basis at the same level” as

“require compensation for use of the public rights of way.”

Cablevision, Inc. 184 F.3d at 101.

The word “to” appearing before “require compensation”

also sets the latter phrase apart from the former and

makes clear §253(c) is treating two distinct activities:

“the authority of the State or local government to manage

the public rights of way or [the authority] to require

reasonable compensation.” See, Scalia & Garner, Reading

Law: The Interpretation of Legal Texts 150 (West 2012).

T he la ng uage of §2 5 3(c) is una mbig uous. It

demonstrates Congress’s intent to leave State and local

management of public rights-of-way outside the scope

of preemption under §253. Courts and commentators

have misread §253(c) to limit the authority of State and

local governments to manage public rights-of-way. This

mistaken reading of §253(c) frustrates Congressional

intent. The Court should grant certiorari to provide lower

courts and practitioners with guidance that is absent from

the Court’s precedent.

CONCLUSION

Congress vested the FCC with exclusive authority

to preempt State and local regulations under §253, and

Congress clearly directed the FCC to make a tailored

16

determination by preempting State or local regulations

only to the extent necessary to comply with §253. Congress

also exempted State and local management of public

rights-of-way from the reach of federal preemption under

§253. The Fifth Circuit’s opinion in this case frustrates

Congress’s intent in both respects. The City of Pasadena,

Texas, therefore, requests the Court to grant certiorari,

correct the Fifth Circuit’s errors and enter judgment in

favor of the City.

Respectfully submitted,

William S. Helfand

Counsel of Record

Lewis Brisbois Bisgaard

& Smith, LLP

24 Greenway Plaza, Suite 1400

Houston, Texas 77046

(832) 460-4606

bill.helfand@lewisbrisbois.com

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N IO N O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

TEX AS, HOUSTON DIVISION, FILED

AUGUST 2, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

A P P E N DI X C — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . . . . . . . . 68a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED AUGUST 4, 2023

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-20454

CROWN CASTLE FIBER, L.L.C.,

Plaintiff—Appellee,

versus

CITY OF PASADENA, TEXAS,

Defendant—Appellant.

August 4, 2023, Filed

Appeal from the United States District Court

for the Southern District of Texas.

USDC No. 4:20-CV-3369.

Before Smith, Higginson, and Willett, Circuit Judges.

Jerry E. Smith, Circuit Judge:

This case is pa r t of the battle bet ween

telecommunications providers that are attempting to

expand next-generation wireless services (commonly

called 5G) and municipalities that are resisting that

2a

Appendix A

expansion. Although the usual fights over installation

of new technology involved local governments’ imposing

hefty fees,1 the City of Pasadena used another method:

aesthetic-design standards incorporating spacing and

undergrounding requirements. The city invoked those

requirements to block Crown Castle’s2 ability to develop a

5G network in the region, and Crown Castle sued for relief.

Cong ress a nd t he Feder a l Com mu n ic at ions

Commission (“FCC”) anticipated those strategies and

previously had passed the Federal Telecommunications

Act (“FTA”) and responsive regulations. As a result, the

district court decided in favor of Crown Castle, primarily

basing its decision on the expansive language of the

FTA and an FCC ruling interpreting the Act in light

of 5G technology and associated challenges. The court

determined that the City of Pasadena’s requirements

that functionally blocked the build-out of Crown Castle’s

infrastructure were preempted by the FTA. It entered

summary judgment for Crown Castle and imposed a

permanent injunction prohibiting the city’s use of its

Design Manual.

We agree with the district court. The FTA preempts

the city’s spacing and undergrounding requirements, and

the city forfeited its arguments relating to the safe-harbor

1. See, e.g., City of Portland v. United States, 969 F.3d 1020,

1035-36 (9th Cir. 2020).

2. Crown Castle Fiber, L.L.C., is referred to as Crown Castle

by both parties. This designation also refers to its predecessor-ininterest, Crown Castle NG Central, L.L.C.

3a

Appendix A

provision in the FTA. Nor did the district court abuse its

discretion in ordering a permanent injunction. We affirm.

I.

Telecommunications providers are expanding 5G

networks throughout the country. But 5G requires higher

radio frequencies than did previous-generation networks,

thereby requiring telecommunications and mobile service

providers to install new equipment and infrastructure.

Previous networks used tall towers spaced far apart to

provide service, as the lower-frequency waves they used

could travel long distances and through objects.

In contrast, the higher radio frequencies used

for 5G communications cannot easily pass through

buildings and can only travel short distances. As a result,

telecommunications providers have begun using “small

cell sites” placed close together to relay signals in an

umbrella-esque pattern to provide similar coverage by

relaying signals further distances and around obstacles.

Unlike the infrastructure required for older networks, the

small cell sites can be installed on utility poles, buildings,

streetlights, and other structures. Such a buildout of small

cells is referred to as “densification.”

Crown Castle entered into a contract with T-Mobile

whereby Crown Castle agreed to provide T-Mobile with a

small cell, distributed antenna systems (“DAS”) network in

the Houston market, which includes the City of Pasadena.

Crown Castle specifically offers telecommunications

services by providing network “nodes” and “fiber.”

4a

Appendix A

More precisely, Crown Castle uses its infrastructure

to transport its customer’s (here, T-Mobile’s) voice and

data signals through these nodes and fiber networks,

allowing T-Mobile (or any other wireless service provider

it contracts with) to service a particular area with 5G. To

build out a small cell network, Crown Castle must install

the physical infrastructure, and the company alleged that

it must have access to public rights-of-way to accomplish

that task, which requires a permit.

The twist is that the city has a small cell ordinance and

a Design Manual for the Installation of Network Nodes

and Node Support Poles (the “Manual”). The Manual was

adopted in 2017, purportedly to comply with state law. It

requires that new support poles for a network must be

spaced at least 300 feet from existing utility poles or other

node support poles. 3 Additionally, in 2021, after Crown

Castle had sued, the city updated the Manual to include

an additional restriction (“undergrounding”):

A Network Prov ider is prohibited from

installing above ground on an existing pole

a Network Node and related equipment in a

public right of way in a residential area. . . .

3. In full, the ordinance requires the following:

New node support poles shall be spaced apart from existing

utility poles or Node Support poles at the same distance as the

spacing between utility poles in the immediate proximity, but no

less than at a minimum 300 feet from a utility pole or another Node

Support Pole to minimize the hazard of poles adjacent to road ways

and to minimize [the] effect on property values and aesthetics on

the area.

5a

Appendix A

[A]ll the equipment is required to be installed

underground for the safety of the residents and

the aesthetics of the area.4

Almost all equipment associated with a network node must

be stored underground in residential areas.

In 2017, Crown Castle and T-Mobile identified 100

locations in the city’s public rights-of-way where Crown

Castle wanted to build new utility poles (otherwise known

as “nodes”). Of those, 33 were in residential neighborhoods.

After discussions with the city, 5 Crown Castle applied for

right-of-way permits for the 67 non-residential locations.

Crown Castle divided the applications into 3 batches per

the city’s request. In June 2019, for the first batch, the city

rejected 16 of Crown Castle’s first 22 applications because

they violated the spacing requirement. Crown Castle

reviewed its remaining proposed locations and determined

that they, too, would violate the spacing requirement.

The parties disagree about whether Crown Castle and

T-Mobile explored alternatives, such as placing the new

nodes on existing infrastructure. The city maintains that

Crown Castle did not attempt to identify new locations or

4. The only exception is for an “antenna that cannot operate

when placed underground.”

5. The timeline is unclear, but it appears Crown Castle

eventually applied for permits for 3 of the 33 residential locations, and

the city permitted one. Although the city rejected those applications

before the undergrounding requirement, all 33 are now subject to

the undergrounding requirement Crown Castle challenges.

6a

Appendix A

create a network map that would comply with the Manual.

Crown Castle represents that it did so and rejected

using existing infrastructure because it was not located

at the correct height6 or in feasible areas. Crown Castle

alleges that only seven existing poles in Pasadena would

have satisfied the city’s and Crown Castle’s criteria.7

Crown Castle also avows that placing the required radio

equipment underground in Pasadena is technologically

impossible because of concerns with overheating and

Pasadena’s regular flooding.

In September 2020, Crown Castle sued for declaratory

and injunctive relief, alleging that the minimum spacing

restriction violated, and was thus preempted by, both 47

U.S.C. § 253(a) and Texas state law.

After the district court denied the city’s motion to

dismiss, the city never filed an answer to the complaint.

Even after the city had updated its Manual in 2021 to

include the undergrounding requirement, and Crown

Castle amended its complaint to allege that that

requirement was also preempted, the city still did not

answer the complaint. Only after nine months had

passed since the deadline to file an answer did the city

move for leave to file an answer, averring that the delay

6. According to Crown Castle, the centerline of the antennas

must be located between 31 and 35 feet above ground.

7. These seven poles belonged to AT&T. Crown Castle contends

it discussed putting nodes on the poles owned by Centerpoint, an

energy and utility provider. But all of Centerpoint’s poles were the

wrong height and in the wrong locations.

7a

Appendix A

resulted from an “oversight” and “inadvertent mistake”

by its counsel. The district court refused to accept that

explanation as sufficient, denied the city’s motion, and

decided that the city had forfeited8 affirmative defenses.

Both sides sought summary judgment. The district

court ruled in Crown Castle’s favor and permanently

enjoined the city from enforcing the regulations against

Crown Castle. First, the court ruled that it had jurisdiction

to hear the case because, as a preemption dispute, it

involved a federal question, and it was of no consequence

that § 253(a) has no private right of action.

On the merits, the district court ruled that its

analysis of whether densification effects were protected

by § 253(a) was controlled9 by the FCC’s rule stating that

densification effects were so protected.10 Nor did the city

properly challenge the FCC’s conclusions as arbitrary

8. The district court used the term “waived,” but we employ

the more precisely accurate word “forfeited.”

9. The court stated that “[u]nder the Hobbs Act, the Court does

not have jurisdiction to review the merits [of the] FCC Order and

thus is bound by the FCC’s prior ruling.”

10. The FCC rule discussed in the district court’s opinion and

which played a role in both the preemption and safe harbor decision is

the FCC’s Declaratory Ruling regarding how § 253 applies to small

cell nodes. See In re Accelerating Wireless Broadband Deployment

by Removing Barriers to Infrastructure Investment (“Small Cell

Order”), 33 FCC Rcd. 9088 (2018); see also Accelerating Wireless

and Wireline Broadband Deployment by Removing Barriers to

Infrastructure Investment, 83 Fed. Reg. 51867 (Oct 15, 2018) (codified

at 47 C.F.R. pt. 1).

8a

Appendix A

and capricious. As a result, the district court found that

§ 253(a) did preempt the city’s small cell node regulations,

as they violated the FTA by preventing Crown Castle from

providing telecommunications services.

The district court also rejected the city’s argument that

§ 253(c), which provides that state and local governments

may manage their public rights-of-way in a reasonable and

nondiscriminatory manner, acted as a safe harbor. First,

the court noted that the city had forfeited the affirmative

defense by failing to answer the complaint. Secondly,

adjudicating the affirmative defense on the merits, the

court concluded that the section still did not allow the

city’s discriminatory treatment of Crown Castle’s applied

small cell nodes. Then the court granted Crown Castle a

permanent injunction but stayed it pending this appeal.

II.

We review issues of Article III standing de novo.

Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779

F.3d 258, 264 (5th Cir. 2015). “[F]ederal courts are

under an independent obligation to examine their own

jurisdiction . . . .” FW/PBS, Inc. v. City of Dall., 493 U.S.

215, 231, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990). The

district court granted summary judgment on the basis of

federal preemption, a question of law reviewed de novo.

Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 442 (5th

Cir. 2001).

We review a summary judgment de novo as well.

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

9a

Appendix A

1994). A party is entitled to summary judgment when “the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “As is appropriate

at the summary-judgment stage, facts that are subject to

genuine dispute are viewed in the light most favorable to

[the non-moving party].” Taylor v. Riojas, 141 S. Ct. 52,

53 n.1, 208 L. Ed. 2d 164 (2020) (per curiam).

This court reviews a permanent injunction for abuse

of discretion. Thomas v. Hughes, 27 F.4th 995, 1011 (5th

Cir. 2022) (citing ICEE Distribs., Inc. v. J&J Snack Foods

Corp., 325 F.3d 586, 594 (5th Cir. 2003)). “An abuse of

discretion occurs where the trial court ‘(1) relies on clearly

erroneous factual findings . . . [,] (2) relies on erroneous

conclusions of law . . . , or (3) misapplies the factual or

legal conclusions when fashioning its injunctive relief.’” Id.

(alterations and omissions in original) (quoting Peaches

Ent. Corp. v. Ent. Repertoire Assocs., Inc., 62 F.3d 690,

693 (5th Cir. 1995)).

III.

Crown Castle’s claims are justiciable. Because its

preemption claim presents a federal question, that

establishes jurisdiction. Although the city’s theory that

§ 253 of the FTA does not provide a private right of action

is correct, that fact does not override Crown Castle’s

ability to bring a preemption claim. Additionally, Crown

Castle has pleaded facts sufficient for Article III standing,

and its claims are ripe.

10a

Appendix A

A.

The city spends most of its briefing alleging that

Crown Castle’s suit is non-justiciable because § 253 does

not provide a private right of action that would enable

Crown Castle to sue to enforce the mandate of the FTA.

Additionally, the city posits that Crown Castle is not even

a telecommunications service provider covered by § 253.

The city is incorrect.

Congress enacted the FTA to “reduc[e] . . . the

impediments imposed by local governments upon the

installation of facilities for wireless communications.”

City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,

115, 125 S. Ct. 1453, 161 L. Ed. 2d 316 (2005). To that end,

§ 253(a) provides a comprehensive regulatory scheme

that constrains the ability of states and municipalities

to regulate telecommunications: “No . . . local statute

or regulation, or other . . . local legal requirement, may

prohibit or have the effect of prohibiting the ability

of any entity to provide any interstate or intrastate

telecommunications service.”

Still, as the city notes, § 253(a) focuses on “prohibitions

on what the state or local government cannot do, rather

than on a right for telecommunications companies.” Sw.

Bell Tel., LP v. City of Hous., 529 F.3d 257, 261 (5th Cir.

2008). Accordingly, our circuit stated in Southwestern

Bell that § 253(a) does not establish a private right of

action enforceable under 42 U.S.C. § 1983. Id. And under

47 U.S.C. § 253(d), the FCC is charged with “preempting

the enforcement of laws violating . . . § 253(a).” Id. at 262

11a

Appendix A

(internal quotations omitted). As in the present case, our

court was asked to determine whether a local regulation

was preempted by § 253(a). Id.

Nevertheless, the city’s reliance on Southwestern

Bell is misplaced. Even though we acknowledged that the

FCC is the primary caretaker and enforcer of the FTA,

the actual holding was more constrained than the city

believes. “[B]ecause the FTA does not unambiguously

establish a private enforceable right, and, in the

alternative, because . . . § 253(d) contains a comprehensive

enforcement scheme, Congress did not intend to create

a private right, enforceable under § 1983, for claimed

violations of . . . § 253(a).” Id.

But Crown Castle is not seeking a legal remedy

through § 1983. Instead, it brings a claim that the FTA

preempts the City’s Manual. In Southwestern Bell itself,

we made that distinction clear. A “plaintiff’s seeking

relief from a state regulation on the ground of preemption

by a federal statute ‘presents a federal question which

federal courts have jurisdiction under 28 U.S.C. § 1331 to

resolve.’” Id. (quoting Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 96 n.14, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983)).

It is worth discussing Southwestern Bell further.

There, AT&T built various facilities in the public rights-ofway in Houston, which then enacted an ordinance requiring

the owners of facilities located in the public rights-of-way

to bear the costs of relocating their equipment if the city

carried out a public works project in the same location.

The ordinance was not targeted at telecommunications

12a

Appendix A

providers but required any facility located in a public

right-of-way to be moved at the owner’s expense. AT&T

spent $420,000 relocating equipment and sued to recover

the relocation costs. The company asserted a claim under

the FTA through § 1983 and a federal preemption claim.

Southwestern Bell first analyzed whether the FTA

creates a private right of action. Id. at 259-62. The court

noted that although the circuits were split, a faithful

textual reading of the statute post-Gonzaga University

v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 153 L. Ed.

2d 309 (2002),11 indicated that Ҥ 253 does not create a

private right of action for damages that may be enforced

through § 1983.” Sw. Bell, 529 F.3d at 261 (cleaned up).

But Crown Castle is not asking for damages here. The

company seeks declaratory and injunctive relief, bringing

the suit in equity.

On that note, the panel analyzed AT&T’s federal

preemption claim separately and stated that a “party

may bring a claim under the Supremacy Clause that a

local enactment is preempted even if the federal law at

issue does not create a private right of action.” Id. at 262

(quoting Qwest Corp. v. City of Santa Fe, 380 F.3d 1258,

1266 (10th Cir. 2004)). In Southwestern Bell, AT&T’s

preemption-based arguments failed because of inadequate

pleading and the inability to show that the ordinance was

11. Gonzaga requires courts to determine whether Congress

intended to create a federal right, and “where the text and structure

of a statute provide no indication that Congress intend[ed] to create

new individual rights, there is no basis for a private suit, whether

under § 1983 or under an implied right of action.” 536 U.S. at 286.

13a

Appendix A

not “competitively neutral and nondiscriminatory.” See id.

at 262-64. Houston’s ordinance, therefore, was sheltered

by the safe harbor provision of § 253(c),12 and preemption

did not apply. Id. at 263-64. But, vitally, the court did

not dismiss the federal preemption argument for lack of

subject matter jurisdiction. The question whether we have

jurisdiction is separate from whether there is a cause of

action. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).

The same holds true here. The “ability to sue to enjoin

unconstitutional actions by state and federal officers is the

creation of courts of equity.” Armstrong v. Exceptional

Child Ctr., Inc., 575 U.S. 320, 327, 135 S. Ct. 1378, 191 L.

Ed. 2d 471 (2015). Hence, in Green Valley Special Utility

District v. City of Schertz, we noted that the plaintiff

had “a cause of action against [defendants] at equity,

regardless of whether it can invoke § 1983.” 969 F.3d 460,

475 (5th Cir. 2020) (en banc) (citing Ex parte Young, 209

U.S. 123, 149, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). Even

though § 253 does not confer a private right, a plaintiff is

not prevented from gaining equitable relief on preemption

grounds. Accordingly, Crown Castle can bring its federal

preemption claim.13

12. The subsection provides that “[n]othing in [§ 253] affects

the authority of . . . local government to manage the public

rights-of-way or to require fair and reasonable compensation

from telecommunications providers, on a competitively neutral

and nondiscriminatory basis, for use of public rights-of-way on a

nondiscriminatory basis, if the compensation required is publicly

disclosed by such government.”

13. In reply, the city points to Judge Oldham’s concurrence in

Green Valley, where he cast doubt on whether a plaintiff could sue

14a

Appendix A

B.

The city maintains that Crown Castle is not a

telecommunications provider and is not subject to the

protections of § 253(a). To the contrary, Crown Castle is a

telecommunications provider under the Act, and thus the

city’s theory that Crown Castle did not provide services

itself, but “merely agreed to install radios and antennae to

allow T-Mobile to expand T-Mobile’s telecommunications

service,” is untenable.14

“[W]e begin where all such inquiries must begin: with

the language of the statute itself.” Republic of Sudan v.

Harrison, 139 S. Ct. 1048, 1056, 203 L. Ed. 2d 433 (2019)

(cleaned up). The “judicial inquiry . . . ends there as well

in equity without belonging to a particular class of citizens with a

legislatively conferred cause of action. 969 F.3d at 497 (Oldham, J.,

concurring) (citing Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 127, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014)). But

that is not the law of this circuit.

14. It is possible that Crown Castle could sue under § 253(a)

even if it were not a telecommunications provider. As Crown Castle

states, we usually look to injury-in-fact when determining standing

to sue. Crown Castle likely satisfies the injury prong, and so with

that injury, it may be entitled to injunctive relief. As a result, the

city’s argument that Crown Castle is not protected by § 253(a) is

not a jurisdictional issue, and “courts should not treat a statutory

provision as jurisdictional unless ‘the Legislature clearly states

that a threshold limitation on a statute’s scope shall count as

jurisdictional.’” Biziko v. Van Horne, 981 F.3d 418, 421 (5th Cir. 2020)

(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515, 126 S. Ct. 1235,

163 L. Ed. 2d 1097 (2006)). Because we conclude that Crown Castle is

a telecommunications provider, we pretermit discussion of that issue.

15a

Appendix A

if the text is unambiguous.” Tex. Educ. Agency v. U.S.

Dep’t of Educ., 908 F.3d 127, 132 (5th Cir. 2018) (cleaned

up). The FTA defines “telecommunications service” as

“the offering of telecommunications for a fee directly to

the public, or to such classes of users as to be effectively

available directly to the public, regardless of the facilities

used.” 47 U.S.C. § 153(53).15

T he d ist r ict cou r t not ed that “ prov iders of

‘telecommunications service’ are equivalent to ‘common

carriers,’ meaning . . . provider[s] who ‘hold[] [themselves]

out indiscriminately.’”16 Applying that definition, the court

reasoned that because “Crown Castle’s services enable

common carriers, like T-Mobile in this case, to provide

telecommunications services to the general public, . . .

Crown Castle’s services are available to ‘classes of users

as to be effectively available directly to the public.’” We

see no error.17

15. “Telecommunications” are “the transmission, between

or among points specified by the user, of information of the user’s

choosing, without change in the form or the content of the information

as sent and received.” 47 U.S.C. § 153(50). As discussed supra, the

voice and data signals that Crown Castle transports through its

nodes and fiber infrastructure and DAS network appear to fall

readily within that definition.

16. Quoting Crown Castle NG E. Inc. v. Town of Greenburgh,

No. 12-CV-6157, 2013 U.S. Dist. LEXIS 93699, 2013 WL 3357169,

at *15 (S.D.N.Y. July 3, 2012).

17. Numerous other courts have found that Crown Castle or

its predecessors are telecommunications providers. See, e.g., NextG

Networks of NY, Inc. v. City of New York, 513 F.3d 49, 50 (2d Cir.

2008); Crown Castle NG E. LLC v. City of Rye, No. 17-CV-3535,

16a

Appendix A

Nevertheless, the city urges us to read the statutory

language to indicate that the statute covers only a servicer

that provides the product to the end user. That definition

reads “effectively available directly to the public” out

of the statute. “As a cardinal principle of statutory

construction, the presumption against superfluity requires

the court to give effect, if possible, to every clause and

word of a statute . . . rather than to emasculate an entire

section.” Tex. Educ. Agency, 908 F.3d at 133 (cleaned up)

(omission in original).

It is evident that Crown Castle sells its services to

the public by establishing the infrastructure to enable

T-Mobile to provide wireless service and to transmit

T-Mobile’s voice and data signals across its network.

T-Mobile is undoubtedly a common carrier, and Crown

Castle, through its network and infrastructure contract,

fits neatly within the protective umbrella of § 253(a).

The city’s main cited case suggesting otherwise is not

applicable. The city points to Virgin Islands Telephone

Corp. v. FCC, 198 F.3d 921, 930, 339 U.S. App. D.C. 174

(D.C. Cir. 1999), to urge that Crown Castle is a private

network operator. That contention is inaccurate. In Virgin

2017 U.S. Dist. LEXIS 202528, 2017 WL 6311693, at *4 (S.D.N.Y.

Dec. 8, 2017); Crown Castle NG Atl. LLC v. City of Newport News,

No. 15-CV-93, 2016 U.S. Dist. LEXIS 104790, 2016 WL 4205355,

at *3 (E.D. Va. Aug. 8, 2016); Crown Castle Fiber LLC v. City of

Charleston, 448 F. Supp. 3d 532, 534 (D.S.C. 2020). Although not all

of those opinions go through a textual analysis to determine whether

Crown Castle is a telecommunications provider under the statute,

they still remain persuasive.

17a

Appendix A

Islands, the D.C. Circuit found that the plaintiff was not

a common carrier because it made the “bulk capacity in

its system” available only to a “significantly restricted

class of users,” preventing the public from being “able to

make use of the cable as a practical matter.” Id. at 924-30.

No such fact has ever been alleged here. Crown Castle’s

services, through T-Mobile, are available to anyone who

wishes to pay. The company is a telecommunications

provider under the FTA.

C.

Finally, the city asserts that Crown Castle lacks

Article III standing because its claims are not ripe. We

review two factors to determine ripeness: “the fitness of

the issues for judicial decision” and “the hardship to the

parties of withholding court consideration.”18 A claim is

“fit for judicial decision if it presents a pure question of law

that needs no further factual development.” Braidwood

Mgmt., Inc. v. EEOC, 70 F.4th 914, 930 (5th Cir. 2023)

(cleaned up). An unripe claim is “contingent [on] future

events that may not occur as anticipated, or indeed may not

occur at all.” Id. at 930-31 (alteration in original) (quoting

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,

580-81, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985)).

The city avers the case is not fit for consideration: The

court should wait to evaluate the issues at play because

18. Abbott Lab’ys v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507,

18 L. Ed. 2d 681 (1967), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).

18a

Appendix A

Crown Castle has not sought a permit under the city’s

new undergrounding requirement and has submitted only

about a third of the planned applications, of which the city

approved a few. Moreover, Crown Castle did not submit

applications for the other sites. Instead, it undertook

its own review and “simply decided that all 45 proposed

locations to be submitted would violate the Manual’s 300foot spacing requirement.” The city also takes umbrage

that Crown Castle never requested a variance for the

denied applications. The city consequently has not taken a

“final, definitive position” about the permits, and the claim

is not ripe. For similar reasons, claims based on the other

unsubmitted applications are not ripe either.

We go back to first principles to decide ripeness.

Crown Castle’s claims turn on a pure question of law: Is

the Manual preempted by § 253? See Franks Inv. Co. v.

Union Pac. R.R., 593 F.3d 404, 407 (5th Cir. 2010) (“The

preemptive effect of a federal statute is a question of

law . . . .”). There is no factual dispute that the spacing

and undergrounding requirements apply to most of Crown

Castle’s intended pole locations.

As a result, the Manual is the only thing preventing

Crown Castle from building out its telecommunications

grid. Crown Castle has been harmed and continues to

allege injury on account of the Manual, and no further

factual development will aid in adjudicating the claim.

Moreover, because of those ongoing harms, Crown Castle

will experience hardship if we do not consider its claim.

Cf. Braidwood, 70 F.4th at 931-32.

19a

Appendix A

The city has no persuasive counter-argument. The

caselaw it presents primarily invokes the ripeness

standard involved in takings cases.19 And we do not look

to its presented ripeness test outside a takings claim. See

Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003). Without

that test, the city merely states that Crown Castle was

required to ask for a variance for rejected petitions, submit

petitions for every other node despite the poor success

rate, and change the design of its nodes to comply with

the city’s requirements. Those theories are divorced from

caselaw and resemble exhaustion requirements more than

ripeness requirements. As discussed above, Crown Castle

met the requirements for ripeness by showing that the

case is fit for judicial resolution and that there is ongoing

harm. Nothing more is required. Crown Castle’s claims

are ripe.

IV.

Next, the merits. The city failed to challenge the

merits adequately in its opening brief and did not correctly

raise § 253(c) as an affirmative defense in the district

court. But even if we review the merits of the city’s

arguments, the district court was correct to follow the

FCC’s order controlling the result.

19. See, e.g., Williamson Cnty. Reg’l Planning Comm’n v.

Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126

(1985), overruled by Knick v. Twp. of Scott, 139 S. Ct. 2162, 204 L.

Ed. 2d 558 (2019).

20a

Appendix A

A.

To begin, the district court clearly stated that, per

the Hobbs Act, 20 its analysis was bound by the FCC’s

Small Cell Order. In that order, the FCC stated that a

local legal requirement constitutes an effective prohibition

on the ability of an entity to provide telecommunications

service where the legal requirement “materially inhibits”

the “critical deployments of Small Wireless Facilities

and [the] nation’s drive to 5G. Small Cell Order, 33 FCC

Rcd. at 9102-03. Per the order, a spacing requirement can

create a material inhibition of wireless service in violation

of § 253(a). See id. at 9132. The district court correctly

relied on that determination to find material inhibition.

Additionally, the FCC Order indicates that spacing

requirements can be unreasonable if they effectively

prohibit the construction of nodes through discriminatory

application. 21 The FCC Order discusses simi la r

20. Unlike the district court, we do have jurisdiction to

review the order. See 28 U.S.C. § 2342 (“The court of appeals . . .

has exclusive jurisdiction to enjoin, set aside, suspend (in whole or

in part), or to determine the validity of . . . all final orders of the

Federal Communication Commission made reviewable by section

402(a) of title 47.”).

21. See, e.g., Small Cell Order, 33 FCC Rcd. at 9133 (“For

example, under the principle that any such requirements be

reasonable and publicly available in advance, it is difficult to

envision any circumstances in which a municipality could reasonably

promulgate a new minimum spacing requirement that, in effect,

prevents a provider from replacing its preexisting facilities or

collocating new equipment on a structure already in use.”); see also

21a

Appendix A

undergrounding requirements, noting that “a requirement

that all wireless facilities be deployed underground would

amount to an effective prohibition given the propagation

characteristics of wireless signals.” Id. at 9133. The

court relied on that text to find that the underground

requirement was preempted.

Yet, on appeal in its opening brief, the city does not

mention the Hobbs Act or the FCC Order once. No attempt

is made to contest the notion that the district court was not

bound by the ruling of the FCC, or even if it was, that the

district court erred in its application of the FCC’s ruling.

Although the city attacks the reasoning of the district

court’s approach indicating that § 253(a) preempts the

Manual’s requirements, the city fails to grapple with the

fact that the district court based its entire preemption

decision on the FCC’s Small Cell Order, through the

jurisdictional bounds of the Hobbs Act. The present

adjudication cannot be decided without appropriately

reviewing the effect of the FCC’s 2018 declaratory ruling.

Parties forfeit contentions by inadequately briefing

them on appeal. Rollins v. Home Depot USA, 8 F.4th 393,

397 (5th Cir. 2021); see also Fed. R. A pp. P. 28(a)(8)(A).

id. at 9132 (“Analogously, aesthetic requirements that are reasonable

in that they are technically feasible and reasonably directed to

avoiding or remedying the intangible public harm of unsightly or

out-of-character deployments are also permissible.”); cf. City of

Portland, 969 F.3d at 1041 (“[R]easonable regulatory distinctions

among functionally equivalent, but physically different services [are

allowed].”).

22a

Appendix A

Adequate briefing requires a party to raise an issue in its

opening brief. United States v. Bowen, 818 F.3d 179, 192

n.8 (5th Cir. 2016). “To be adequate, a brief must address

the district court’s analysis and explain how it erred.”

SEC v. Hallam, 42 F.4th 316, 327 (5th Cir. 2022) (cleaned

up). The city’s brief is inadequate. Instead of making a

substantial argument on the merits, it decided primarily

to contest that Crown Castle lacked standing to litigate

§ 253(a). Having failed there, the city must lie in the bed

that it made.

In its reply brief, the city finally mentions that the

district court was “bound by the FCC’s prior ruling”

but that we are not entitled to give the Order Chevron

deference22 because § 253(a) is unambiguous. Even if true,

the contention needed to be raised in the opening brief.

B.

Similarly, the district court did not err in deciding

that the city’s failure to answer Crown Castle’s complaint

indicated that it forfeited all affirmative defenses. Federal

Rule of Civil Procedure 8(c) indicates that affirmative

defenses must be raised in the first responsive pleading,

which here would have been the answer (or the motion

to dismiss). Instead, the city waited until its summary

judgment motion to raise § 253(c). Statutory exemptions

such as § 253(c) must be pleaded as affirmative defenses.

See Oden v. Oktibbeha Cnty., 246 F.3d 458, 467 n.10 (5th

Cir. 2001).

22. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

23a

Appendix A

Notwithstanding the formal procedures, there is “play

in the joints,” and “technical failure to comply precisely

with Rule 8(c) is not fatal.” Rogers v. McDorman, 521 F.3d

381, 385-86 (5th Cir. 2008) (cleaned up). The main concern

is “unfair surprise,” so we do not permit litigants to be

able to “lie behind a log” and “ambush a plaintiff.” Id. at

385 (cleaned up). On the whole, though, unfair surprise is

present here.

The city avers that it first raised the § 253(c) safe

harbor defense in its motion to dismiss Crown Castle’s

complaint, which would satisfy Rule 8(c). But the only

mention of § 253(c) in the motion to dismiss was in

relation to the city’s theory that Crown Castle’s claim

correctly arose under § 332(c)(7) instead of § 253. That

is not a proper method to raise an affirmative defense.

Nowhere was Crown Castle notified that the city would

raise a § 253(c) defense to a § 253(a) preemption claim. As

a result, the statements in the motion to dismiss did not

put Crown Castle on notice, and Crown Castle remained

“prejudiced in its ability to respond.” Pasco ex rel. Pasco

v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (quoting

Allied Chem. Corp. v. Mackay, 695 F.2d 854, 856 (5th Cir.

1983) (per curiam)).

Furthermore, as the district court noted, failure

to answer the operative complaint is not excusable. A

failure timely to answer or raise an affirmative defense

before springing it on plaintiffs at summary judgment

almost always constitutes an “unfair surprise.” There is

no reason to doubt the capable judgment of the district

court on this matter.

24a

Appendix A

C.

Regardless, even reviewing the merits of the city’s

arguments, it still loses. Although one might challenge

the constitutional validity of the Hobbs Act, 23 the district

court was correct to follow the FCC’s order controlling

the result. Furthermore, no party challenges the

constitutionality of the Hobbs Act. As a result, there is

no error in the district court’s application of the FCC’s

Order. 24 The district court correctly determined that the

city’s regulations “effectively prohibit[] Crown Castle

23. The Hobbs Act essentially strips the jurisdiction of district

courts to consider the validity of an agency’s legal interpretation of

the statutes contained therewithin, including the FTA. Circuit courts

have exclusive jurisdiction to determine the validity of final orders,

and only if a party seeks judicial review within 60 days of entry of the

final order. 28 U.S.C. § 2342. But nowhere in the Hobbs Act does it

state that the interpretation of the statutes cannot be challenged in

later enforcement proceedings. Under the Administrative Procedure

Act, usual administrative law principles permit parties to raise asapplied challenges. See PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc., 139 S. Ct. 2051, 2058, 204 L. Ed. 2d 433 (2019)

(Kavanaugh, J., concurring in the judgment).

24. On appeal, the city raises for the first time that as-applied

challenges are not permitted under § 253. The city’s support is less

than persuasive and invokes no controlling precedent. Moreover, it

seems likely that the challenge is facial—the district court placed

a permanent injunction on enforcement of the Manual and stated

that the policies themselves, not just as applied to Crown Castle,

were unreasonable under the test outlined in the FCC’s Small Cell

Order. Regardless, given that this issue was not raised at summary

judgment, we cannot consider it. See Keelan v. Majesco Software,

Inc. 407 F.3d 332, 339-40 (5th Cir. 2005).

25a

Appendix A

from providing telecommunications services” and are

preempted under § 253(a). Nor is the city protected by

§ 253(c) because the Manual’s restrictions and rules are

not “competitively neutral and nondiscriminatory.”

The city’s primary claim against preemption is that

§ 253(a) does not apply to densification efforts. But the

FCC has clearly stated that it considers the statute’s

requirement of an effective prohibition to include a

material inhibition on the ability of a provider to deploy

small wireless facilities, including cells. See Small Cell

Order, 33 FCC Rcd. at 9102-04.

The city maintains that T-Mobile already provides

5G and 4G/LTE service through Pasadena, and its

rejected nodes would merely “augment” the existing

service. That reading is too limited, given the expansive

“any” mentioned in the statute. Section 253(a) broadly

protects the ability of “any” entity to provide “any”

telecommunications service. 25

Furthermore, the city’s favored reading flies in the

face of common sense: Just because a provider can provide

some limited level of service does not mean that it cannot

improve that level, expand its capacity, or otherwise offer

an upgraded or additional form of telecommunications

25. See Chamber of Com. of U.S. v. U.S. Dep’t of Lab., 885 F.3d

360, 373 (5th Cir. 2018), judgment entered sub nom. Chamber of Com.

of Am. v. U.S. Dep’t of Lab., No. 17-10238, 2018 U.S. App. LEXIS

27646, 2018 WL 3301737 (5th Cir. June 21, 2018) (stating that the

use of “any” in a statute embodies an “expansive interpretation”

for an agency).

26a

Appendix A

service. All those boons seem to fall within the scope of

the statute’s text.

The same is true of the undergrounding requirement.

The district court accepted Crown Castle’s contention

that requiring the burying of all nodes underground in

residential areas would essentially destroy their efficacy.

Per the FCC Order, a “requirement that all wireless

facilities be deployed underground would amount to an

effective prohibition.” Small Cell Order, 33 FCC Rcd.

at 9133. The district court found that the restrictions on

the construction of nodes were unreasonable and made

it technically infeasible for Crown Castle to provide

a telecommunications service. The city provides no

persuasive evidence that the district court’s reasoning

is incorrect. Under the current regulations, no party

disagrees that Crown Castle likely cannot build its

network in Pasadena. There is no error here.

Nor is the § 253(c) safe harbor applicable to either

requirement. In that section, municipal rules governing

rights-of-ways that are “competitively neutral and

nondiscriminatory” are permitted. The district court

determined that that certainly was not the case, as only

small cell technology was subject to the spacing and

undergrounding requirements in the Manual.

The city barely offers a response, merely stating

that it has almost unlimited authority to manage the

public rights-of-way. For example, the city states,

“[t]he City’s authority to ‘manage the public rights-of-way’

encompasses its right to deny Crown Castle’s applications

27a

Appendix A

based upon any applicable requirement contained in

the City’s design manual, including the City’s minimum

spacing and undergrounding requirements.”

That position does not grapple, however, with the

district court’s finding that the city’s right was limited by

the discriminatory targeting of the Manual on small cell

nodes. And there is no plausible counterargument: As the

court found, the regulations affect only small cell nodes

that would permit T-Mobile to offer extensive 5G service

in Pasadena. The district court was correct.

V.

Finally, the district court did not abuse its discretion

in entering a permanent injunction. As the city correctly

notes, a party seeking a permanent injunction must

establish (1) actual success on the merits; (2) that it is likely

to suffer irreparable harm in the absence of injunctive

relief; (3) that the balance of equities tips in that party’s

favor; and (4) that an injunction is in the public interest.

See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20,

32, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

All those factors weigh in Crown Castle’s favor. The

above analysis shows that Crown Castle succeeded in its

preemption claim. Crown Castle will suffer irreparable

harm if it cannot build its network under its contract with

T-Mobile. Its harm outweighs whatever disadvantage

the city will suffer in response. Finally, the weight of

the FCC’s Order and the importance of building out our

nation’s telecommunications network demonstrate that

the injunction is in the public interest.

28a

Appendix A

Moreover, we review the district court’s determinations

on these factors for abuse of discretion. See Thomas, 27

F.4th at 1011. That is a demanding standard that the city

does not satisfy.

The judgment, including the permanent injunction,

is AFFIRMED.

29a

B

APPENDIXAppendix

B — ORDER

OF THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS, HOUSTON

DIVISION, FILED AUGUST 2, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-20-3369

CROWN CASTLE FIBER LLC,

Plaintiff,

v.

CITY OF PASADENA,

Defendant.

ORDER

Pending before the Court are Plaintiff Crown Castle

Fiber LLC’s Motion for Judgment on the Pleadings

(Document No. 123), Plaintiff Crown Castle Fiber LLC’s

Motion for Summary Judgment (Document No. 124),

Defendant City of Pasadena’s Motion to Dismiss and for

Final Summary Judgment (Document No. 128), Defendant

City of Pasadena’s Combined Opposition to Plaintiff’s

Motion for Judgment on the Pleadings and the City’s

Opposed Motion for Leave to File a Responsive Pleading

(Document No. 134). Having considered the motions,

submissions, and applicable law, the Court determines

Plaintiff’s motion for judgment on the pleadings should be

denied, Defendant’s motion to dismiss should be denied,

30a

Appendix B

Defendant’s motion for summary judgment should be

denied, Defendant’s motion for leave should be denied,

and Plaintiff’s motion for summary judgment should be

granted.

I. BACKGROUND

This case involves the installation of w ireless

telecommunication services. Plaintiff Crown Castle

Fiber LLC (“Crown Castle”) provides next-generation

telecommunication services through Distributed Antenna

Systems (“DAS”) that are critical to development of 5G

networks. In order to provide these services, Crown

Castle must install DAS networks, which consist of nodes,

fiber, conversion equipment, and an aggregation point

from which the communication signal is transmitted. In

order to install parts of the DAS networks, Crown Castle

alleges it must have access to the public rights-of-way.

In late 2017, Crown Castle alleges it sought to install a

DAS network in Defendant City of Pasadena, Texas (the

“City”). Around this time, the Texas Legislature enacted

Chapter 284 of the Texas Local Government Code which

regulates the construction and deployment of wireless

network nodes in public rights-of-way across Texas. Tex.

Loc. Gov’t Code § 284 et seq. In response to this legislation,

the City adopted ordinances in response to governing the

installation of small cell nodes and node support poles in

the City’s the public rights-of-way (the “Design Manual”).

The Design Manual contains: (1) a spacing requirement

which significantly limits the locations where it may install

the nodes, despite the fact the DAS network requires

the nodes to be in specific locations to be functional; and

31a

Appendix B

(2) an underground requirement that forces the nodes

and the accompanying radio equipment to be buried in

residential areas, which Crown Castle contends is not

technically feasible.

Based on the foregoing, on September 30, 2020,

Crown Castle filed this lawsuit, asserting preemption

claims against the City for violations a provision of

the Telecommunications Act of 1996 (the “Act”), 47

U.S.C. § 253(a) (“Section 253(a)”), and the Texas Local

Government Code, Tex. Loc. Gov’t Code § 284 et seq.,

based on Sections 4.C.3, 4.C.4, 4.E.1, and 5.B of the

Design Manual. Crown Castle also seeks declaratory and

injunctive relief allowing it to install the nodes in the public

rights-of-way in the City. On August 19, 2021, the Court

granted the motion for leave to amend, and Crown Castle

amended its complaint. On April 11, 2022, Crown Castle

moved for judgment on the pleadings and for summary

judgment. On April 11, 2022, the City moved to dismiss

Crown Castle’s claims and for summary judgment. On

May 2, 2022, the City moved for leave to file its answer to

Crown Castle’s amended complaint.

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Standard

Federal Rule of Civil Procedure 12(b)(1) requires

that a court dismiss a claim if the court does not have

subject matter jurisdiction over the dispute. Fed. R. Civ. P.

12(b)(1). A motion for lack of subject matter jurisdiction

under Rule 12(b)(1) must be considered before any motion

32a

Appendix B

on the merits because subject matter jurisdiction is

required to determine the validity of any claim. Moran

v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.

1994). “Lack of subject matter jurisdiction may be found

in any one of three instances: (1) the complaint alone; (2)

the complaint supplemented by undisputed facts evidenced

in the record; or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed

facts.” Ramming v. United States, 281 F.3d 158, 161

(5th Cir. 2001) (per curiam). “The burden of proof for a

Rule 12(b)(1) motion to dismiss is on the party asserting

jurisdiction.” Id. Unlike a court considering a Rule 12(b)

(6) or Rule 56 motion, district courts have a “unique

power . . . to make factual findings which are decisive of

[subject matter] jurisdiction” when considering a motion

under Rule 12(b)(1) that raises questions of fact relevant

to subject matter jurisdiction. Williamson v. Tucker, 645

F.2d 404, 412-13 (5th Cir. 1981).

B. Rule 12(c) Standard

Motions made pursuant to Federal Rule of Civil

Procedure 12(c) are “designed to dispose of cases where

the material facts are not in dispute and a judgment on the

merits can be rendered by looking to the substance of the

pleadings and any judicially noticed facts.” Great Plains

Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d

305, 312 (5th Cir. 2002) (citations and internal quotation

marks omitted). “A motion for judgment on the pleadings

under Rule 12(c) is subject to the same standard as a

motion to dismiss under Rule 12(b)(6).” Doe v. MySpace,

Inc., 528 F.3d 413, 418 (5th Cir. 2008). Therefore, like a

33a

Appendix B

motion under Rule 12(b)(6), Rule 12(c) allows dismissal if

a plaintiff fails to state a claim upon which relief may be

granted. Id. Under Rule 8(a)(2), a pleading must contain

“a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Although “the pleading standard Rule 8 announces does

not require ‘detailed factual allegations,’ it demands more

than ‘labels and conclusions.’” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting

Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

1955, 167 L. Ed. 2d 929 (2007)). “[A] formulaic recitation of

the elements of a cause of action will not do.” Id. (quoting

Twombly, 550 U.S. at 555).

In deciding a Rule 12(c) motion, “[t]he ‘court accepts all

well-pleaded facts as true, viewing them in the light most

favorable to the [non-movant].’” Vanderbrook v. Unitrin

Preferred Ins. Co. (In re Katrina Canal Breaches Litig.),

495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby

Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,

467 (5th Cir. 2004)). As with a Rule 12(b)(6) motion, the

Court is permitted to consider “the complaint, its proper

attachments, documents incorporated into the complaint

by reference, and matters which a court may take judicial

notice.” Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir.

2011). The motion “should be granted if there is no issue

of material fact and if the pleadings show that the moving

party is entitled to judgment as a matter of law.” Van

Duzer v. U.S. Bank Nat’l Ass’n, 995 F. Supp. 2d 673, 683

(S.D. Tex. 2014) (Lake, J.) (citing Greenberg v. Gen. Mills

Fun Grp., Inc., 478 F.2d 254, 256 (5th Cir. 1973)).

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Appendix B

C. Summary Judgment

Summary judgment is proper when “there is no

genuine dispute as to any material fact and the movant

is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court must view the evidence in a light most

favorable to the nonmovant. Coleman v. Hous. Indep.

Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially,

the movant bears the burden of presenting the basis for

the motion and the elements of the causes of action upon

which the nonmovant will be unable to establish a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The

burden then shifts to the nonmovant to come forward

with specific facts showing there is a genuine dispute for

trial. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.

1348, 89 L. Ed. 2d 538 (1986). “A dispute about a material

fact is ‘genuine’ if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th

Cir. 1993) (citation omitted).

But the nonmoving party’s bare allegations, standing

alone, are insufficient to create a material dispute of fact

and defeat a motion for summary. If a reasonable jury

could not return a verdict for the nonmoving party, then

summary judgment is appropriate. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, at 248, 106 S. Ct. 2505, 91 L.

Ed. 2d 202. The nonmovant’s burden cannot be satisfied

by “conclusory allegations, unsubstantiated assertions, or

‘only a scintilla of evidence.’” Turner v. Baylor Richardson

35a

Appendix B

Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

Uncorroborated self-serving testimony cannot prevent

summary judgment, especially if the overwhelming

documentary evidence supports the opposite scenario.

Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004).

Furthermore, it is not the function of the Court to search

the record on the nonmovant’s behalf for evidence which

may raise a fact issue. Topalian v. Ehrman, 954 F.2d

1125, 1137 n.30 (5th Cir. 1992). Therefore, “[a]lthough

we consider the evidence and all reasonable inferences

to be drawn therefrom in the light most favorable to the

nonmovant, the nonmoving party may not rest on the mere

allegations or denials of its pleadings, but must respond

by setting forth specific facts indicating a genuine issue

for trial.” Goodson v. City of Corpus Christi, 202 F.3d

730, 735 (5th Cir. 2000).

III. LAW & ANALYSIS

The City contends: (1) the Court should grant its

motion to dismiss because Crown Castle lacks standing to

assert its claims; (2) the Court should grant its motion for

leave to file an answer so that it may assert its affirmative

defenses; and (3) the Court should deny Crown Castle’s

motion for summary judgment as they fail to meet the basic

elements of its claims and grant its motion for summary

judgment because the Design Manual is protected by

the Act’s safe harbor provision. Crown Castle contends:

(1) the Court should sustain its evidentiary objections to

the City’s summary judgment evidence; (2) it is entitled

to judgment on the pleadings because the City failed to

36a

Appendix B

file an answer, and thus has admitted to the allegations in

its amended complaint; and (3) it is entitled to summary

judgment on its preemption claims because the Design

Manual’s spacing and underground requirements

materially inhibit its ability to provide telecommunications

service. The Court first turns to the City’s motion to

dismiss, before evaluating the City’s motion for leave and

the parties’ cross-motions for summary judgment.

A. The City’s Motion to Dismiss

The City contends Crown Castle’s claims should be

dismissed for lack of subject matter jurisdiction because

the Act does not provide a private right of action. Crown

Castle contends the precedent in this circuit holds a

“plaintiff seeking relief from a state regulation on the

ground of preemption by a federal statute ‘presents a

federal question which federal courts have jurisdiction

under 28 U.S.C. § 1331 to resolve.’” Sw. Bell Tel. LP v. City

of Houston, 529 F.3d 257, 262 (5th Cir. 2008) (quoting Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S. Ct.

2890, 77 L. Ed. 2d 490 (1983)). Here, Crown Castle seeks

declaratory and injunctive relief, in part, on the basis the

Design Manual’s spacing and underground requirements

are preempted by federal law (i.e., the Act). Because the

basis of one of Crown Castle’s claims is that the Design

Manual is preempted by federal, the Court finds federal

subject matter jurisdiction exists. Therefore, having

considered the motion, submissions, and appliable law, the

Court determines the City’s motion to dismiss for lack of

subject matter jurisdiction should be denied. The Court

now turns to the City’s motion for leave to file an answer.

37a

Appendix B

B. The City’s Motion for Leave

The City contends it should now be allowed to file an

answer to assert affirmative defenses upon which it relies

in its pending motion for summary judgment, roughly nine

months after the deadline to do so elapsed, arguing good

cause exists under both Federal Rules of Civil Procedure

6 and 16 to allow the late filing. Crown Castle contends the

City fails to meet the good cause standard under either

Rule 6 or 16 and allowing the City to file an answer would

be highly prejudicial at this stage of the litigation. The

Court first addresses the City’s arguments under Rule

6, before turning to its argument under Rule 16.

1.

Rule 6

Under Rule 6(b), a court may extend a deadline after

such deadline has elapsed if the movant establishes good

cause and “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).

The factors relevant to determining “excusable neglect”

are: (1) “the possibility of prejudice to the other parties;”

(2) “the length of the applicant’s delay and its impact on

the proceeding;” (3) “the reason for the delay and whether

it was within the control of the movant;” and (4) “whether

the movant has acted in good faith.” Salts v. Epps, 676 F.3d

468, 474 (5th Cir. 2012) (citing 4B Charles A lan Wright

& A rthur R. Miller, Federal Practice A nd Procedure

§ 1165 (4th ed. 2022)).

With respect to the first factor dealing with the

possibility of prejudice, the City contends: (1) it has

responded to Crown Castle’s allegations and generally

38a

Appendix B

denied its claims;1 (2) Crown Castle had the opportunity

to conduct discovery on the City’s defenses;2 (3) the City’s

failure to file an answer could not have prejudiced Crown

Castle;3 and (4) Crown Castle, “despite knowing the City

had not answered [Crown Castle’s] amended complaint,”

“cannot in good faith contend the City’s admitted oversight

was anything more than harmless and nonprejudicial.”4

Conversely, Crown Castle contends it did not conduct

discovery on the City’s affirmative defenses because it

had no way of knowing what those defenses were until

the City first raised them in its motion for summary

judgment. Crown Castle further contends the defenses the

City seeks to plead in its answer “inject[] new issues” and

“impose[] new burdens” on Crown Castle after the close of

discovery.5 Indeed, it is unclear how Crown Castle had fair

notice of the City’s affirmative defenses as required by the

Federal Rules of Civil Procedure prior to the City’s filing

of its motion for summary judgment on April 11, 2022. See

Fed. R. Civ. P. 8(c). The purpose of Rule 8(c) is to prevent

“unfair surprise” with respect to a defendant’s affirmative

defenses. Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.

1. City of Pasadena’s Combined Opposition to Plaintiff’s

Motion for Judgment on the Pleadings and the City’s Opposed

Motion for Leave to File a Responsive Pleading, Document No. 134

at 3 [hereinafter Opposition and Motion for Leave].

2. Opposition and Motion for Leave, supra note 1 at 5.

3. Opposition and Motion for Leave, supra note 1 at 5.

4. Opposition and Motion for Leave, supra note 1 at 5-6.

5. Plaintiff’s Response in Opposition to Defendant’s Motion

for Leave to File an Answer, Document No. 145 at 7.

39a

Appendix B

1999). To allow a defendant to raise an affirmative defense

for the first time at the summary judgment stage, well

after the close of discovery, is both antithetical to the very

purpose of Rule 8’s fair notice pleading requirements and

highly prejudicial to the plaintiff. Thus, the Court finds the

possibly of prejudice in allowing the City to file an answer

asserting affirmative defenses is high. Therefore, this

factor weighs against granting the City’s motion for leave.

The second factor addresses the movant’s length of

delay in seeking leave and the impact on the proceedings.

Here, on August 19, 2021, Crown Castle amended its

complaint.6 Therefore, the City had until September 2,

2021 to file its answer to the amended complaint. See

Fed. R. Civ. P. 15(a)(3). It is undisputed the City failed to

do so. The City did not move for leave to file an answer

until May 2, 2022, nine months later, and two months

before the scheduled trial term. The Court finds the nine

months between the City’s deadline to file its answer and

its motion for leave constitutes a significant delay and,

if granted, would greatly impact the proceedings. Thus,

this factor also weighs against granting the City’s motion

for leave.

The third factor relates to the City’s reason for its

delay and whether that reason was within its control.

The City admits the reason for failing to timely answer

the amended complaint was an “oversight”,7 and an

6. See Order, Document No. 67.

7. Opposition and Motion for Leave, supra note 1 at 6.

40a

Appendix B

“inadvertent mistake” on the part of its counse1. 8

However, the City cannot invoke an equitable principle,

like excusable neglect, to pardon its own lack of diligence.

See L.A. Pub. Ins. Adjusters, Inc. v. Nelson, 17 F.4th 521,

527, 860 Fed. Appx. 315 (5th Cir. 2021) (quoting Baldwin

Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S. Ct.

1723, 80 L. Ed. 2d 196 (1984)). Thus, the Court finds the

City’s lack of diligence is the cause for the delay which

was wholly within the City’s control. Therefore, the third

factor also weighs against granting the City’s motion.

The final factor addresses whether the City acted in

good faith. The City contends its failure to timely answer

was due to a mistake and was not a decision made in bad

faith. There is no evidence indicating the City acted in bad

faith by failing to timely answer Crown Castle’s amended

complaint. Thus, the Court finds the City did not act in bad

faith by failing to timely answer and waiting nine months

to move for leave to file an answer. Therefore, this factor

weighs in favor of granting the City’s motion for leave.

However, three out of the four factors weight in favor

of denying the City’s motion for leave. The only factor

weighing in favor of granting the motion is the final factor,

addressing whether the City acted in good faith. Since the

majority of the factors weigh in favor denial, the Court

finds the City fails to establish excusable neglect under

Rule 6(b). See Nelson, 17 F.4th at 527. The Court now

turns to whether Rule 16 provides an avenue for the City

to file an answer.

8. City of Pasadena’s Reply in Support of its Motion for Leave

to File a Pleading Responsive to Plaintiff’s Amended Complaint,

Document No. 146 at 3.

41a

Appendix B

2.

Rule 16

Additionally, Rule 16 allows a court to amend a

scheduling order for good cause. Under Rule 16, four

factors determine whether there is good cause: “(1)

the explanation for the failure to timely move for leave

to amend; (2) the importance of the amendment; (3)

potential prejudice in allowing the amendment; and (4) the

availability of a continuance to cure such prejudice.” S&W

Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d

533, 535 (5th Cir. 2003) (quoting Reliance Ins. Co. v. La.

Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)).

As to the first factor, as stated above, the City

explains its failure to timely move for leave was based

on an oversight by its counsel. However, mere oversight

by counsel is an insufficient explanation for its failure

to timely seek leave to file an answer. See S&W Enters.,

LLC, 315 F.3d at 535 (stating that “inadvertence” “is

tantamount to no explanation at all”). Therefore, the

Court finds the City’s explanation for its failure to timely

move for leave is insufficient. Thus, the first factor weighs

against granting leave.

With respect to the second factor, the City contends

the amendment allowing it to file an answer is important

because without it the City waives the affirmative

defense it asserts in its pending motion for summary

judgment. Therefore, the Court finds the amendment

here is important to the City’s ability to raise affirmative

defenses. Thus, this factor weighs in favor of granting

leave to amend.

42a

Appendix B

The third factor addresses the potential prejudice in

allowing the amendment which, as discussed above, in this

case is high. The potential for prejudice to Crown Castle is

high should the Court grant the City leave to file its answer

at this late date, as that answer would contain affirmative

defenses heretofore unknown to Crown Castle. Further,

the parties have already filed cross-motions for summary

judgment—and included in the City’s motion for summary

judgment are at least some of the affirmative defenses the

City wishes to assert if granted leave to answer. However,

Crown Castle has been deprived of the opportunity to

conduct discovery related to these affirmative defenses

due to the City’s failure to timely answer and properly

assert such defenses. Therefore, the Court finds there is a

significant potential for prejudice to Crown Castle should

it grant the City’s motion for leave to amend. Thus, this

factor also weighs against granting leave to amend.

The fourth factor address whether a continuance would

cure any prejudice caused by allowing the amendment.

This case is currently on the July/August 2022 trial term,9

and both parties have pending motions for summary

judgment. This case has been pending since September

2020 and there have been several continuances granted to

date.10 Given the age of this lawsuit, another continuance

9. Order, Document No. 114, at 1.

10. Order, Document No. 67 (granting the City’s July 27, 2021

motion for continuance); Order, Document No. 103 (granting in

part the City’s November 15, 2021 motion for continuance); Order,

Document No. 114 (granting the City’s February 10, 2022 motion

for continuance).

43a

Appendix B

would only serve to amplify, not cure, Crown Castle’s

prejudice. Therefore, the Court finds a continuance is not

available to cure the prejudice caused by granting the

City’s motion for leave.

Three of the four factors weigh against granting the

City’s motion to amend the scheduling order. Allowing

amendment at this point would cause Crown Castle a high

degree of prejudice, and a continuance would not be a

practical means to cure this prejudice at this stage of the

litigation. Thus, the Court finds the City fails to establish

good cause to amend the scheduling order. Accordingly,

the City’s motion for leave is denied. The Court now turns

to Crown Castle’s evidentiary objections to the City’s

summary judgment evidence.

C. Crown Castle’s Evidentiary Objections

Crown Castle objects to the City’s Exhibits 3, 16, 17,

and 18, contending: (1) Exhibits 3 and 18 are irrelevant;

and (2) Exhibits 16 and 17 are inadmissible under Daubert

and Rule 702 of the Federal Rules of Evidence.

1.

Exhibit 3

Crown Castle contends the Court should exclude

certain portions of Exhibit 3, a deposition of a T-Mobile

representative,11 because they are irrelevant. Having

11. Crown Castle and T-Mobile, who is not a party in this case,

entered into an agreement under which Crown Castle would install

a small cell network designed to assist densifying the coverage of

T-Mobile’s current cellular network. It was this agreement with

44a

Appendix B

reviewed Exhibit 3, the Court finds it could be reduced

to an admissible form at trial. Therefore, the Court finds

Crown Castle’s evidentiary objections to Exhibit 3 should

be overruled. Accordingly, Crown Castle’s evidentiary

objections to Exhibit 3 are overruled.

2.

Exhibits 16 & 17

Crown Castle contends Exhibit 16, an uncertified

deposition, and Exhibit 17, unsworn reports, both from

the City’s expert Richard Comi are inadmissible under

Daubert and Federal Rule of Evidence 702. Having

reviewed Exhibits 16 and 17, the Court finds Exhibits

16 and 17 could be reduced to a form admissible at trial.

Therefore, the Court finds Crown Castle’s objections

to Exhibits 16 and 17 should be overruled. Accordingly,

Crown Castle’s evidentiary objections to Exhibits 16 and

17 are overruled.

3.

Exhibit 18

Crown Castle contends Exhibit 18, the map of

T-Mobile’s network coverage from T-Mobile’s website, is

irrelevant. Having reviewed the network map, the Court

finds it could be reduced to a form admissible at trial.

Therefore, the Court finds Crown Castle’s evidentiary

objections to Exhibit 18 should be overruled. Accordingly,

Crown Castle’s evidentiary objections to Exhibit 18 are

overruled.

prompted Crown Castle to attempt to install the small cell nodes

and node support poles at issue in this case.

45a

Appendix B

D. Crown Castle’s Motion for Summary Judgment

Crown Castle contends it is entitled to summary

judgment because Sections 4.C.3, 4.C.4, 4.E.1, and 5.B

of the Design Manual: (1) violate Section 253(a) of the

Act as they effectively prohibit Crown Castle from

providing telecommunications services through these

discriminatory regulations; and (2) violate Section 284

of the Texas Local Government Code as they impede the

construction of small cell node support poles which should

be allowed as a matter of right and, further, subjects such

technology to adverse treatment. The City contends: (1)

the contested sections of the Design Manual are protected

by the safe harbor provision in Section 253(c) of the Act

(the “Safe Harbor Provision”); but even if they are not, (2)

Crown Castle fails to establish basic elements of its claims,

such as whether it actually provides telecommunications

services as defined by the Act.

1.

47 U.S.C. § 253

Crow n Castle contends the Design Manual is

preempted by the Act because the spacing and underground

requirements contained in the Design Manual effectively

prohibit Crown Castle from providing telecommunications

services. The City contends Crown Castle does not offer

telecommunications services as defined in the Act, or

alternatively, the Design Manual is sheltered by the

Safe Harbor Provision—which Crown Castle contends

is an affirmative defense that the City has waived. The

Court addresses whether the City properly asserted it as

an affirmative defense and the Safe Harbor Provision’s

46a

Appendix B

applicability below. However, the Court first turns to

the threshold question of whether Crown Castle offers

telecommunication services as defined by the Act.

a.

Telecommunications Services

The parties dispute whether Crown Castle provides

telecommunications services as defined by the Act. Under

the Act, “telecommunications services” are defined as

“the offering of telecommunications for a fee directly to

the public, or to such classes of users as to be effectively

available directly to the public, regardless of the facilities

used.” 47 U.S.C. § 153(53). “Telecommunications” are

defined as “the transmission, between or among points

specified by the user, of information of the user’s choosing,

without change in the form or content of the information

as sent and received.” Id. § 153(50). A “telecommunications

carrier” is “any provider of telecommunications services

. . . [who] shall be treated as a common carrier.” § 153(51).

Other courts have held providers of “telecommunications

service” are equivalent to “common carriers,” meaning

a provider who “holds itself out indiscriminately.”

Crown Castle NG E. Inc. v. Town of Greenburgh, No.

12-CV-6157(CS), 2013 U.S. Dist. LEXIS 93699, 2013 WL

3357169, at *15 (S.D.N.Y. July 3, 2013) (Seibel, J.) (citing

V.I. Tel. Corp. v. FCC, 198 F.3d 921, 926, 339 U.S. App.

D.C. 174 (D.C. Cir. 1999)). “A provider may be a common

carrier even if its services are not practically available

to the entire public; a specialized carrier whose service

is of possible use to only a fraction of the population may

nonetheless be a common carrier if [it] holds [itself] out

to serve indifferently all potential users.” Id. (quoting

47a

Appendix B

National Asso. of Regulatory Utility Comm’rs v. Federal

Communications Com. (NARUC II), 525 F.2d 630, 642

(D.C. Cir. 1976)) (internal quotations omitted).

Crown Castle’s services, which include the construction

of wireless networks to provide telecommunications

s e r v i c e s , e n a ble c o m mon c a r r i e r s t o p r o v i de

telecommunications services to the public.12 Since Crown

Castle’s services enable common carriers, like T-Mobile in

this case, to provide telecommunications services to the

general public, the Court finds Crown Castle’s services are

available to “classes of users as to be effectively available

directly to the public.” Therefore, the Court finds Crown

Castle provides telecommunications services as defined in

the Act. Now the Court turns to whether the Safe Harbor

Provision shelters the Design Manual from preemption.

b.

The Safe Harbor Provision

The City contends the Design Manual falls within the

protections of the Safe Harbor Provision. Crown Castle

contends: (1) the City has waived any argument regarding

the safe harbor provision because it is an affirmative

defense which the City has not pleaded; and (2) even if the

City has properly asserted such an affirmative defense,

the Design Manual is not protected by the safe harbor

provision. The Court first examines whether the City

has waived its affirmative defenses, specifically the Safe

Harbor Provision.

12. See Plaintiff Crown Castle Fiber LLC’s Motion for

Summary Judgment, Document No. 124, Exhibit 5 (T-Mobile-Crown

Castle Small Cell Order Agreement).

48a

Appendix B

i.

Waiver

Crown Castle contends the City has waived the right

to assert any affirmative defenses, including the Safe

Harbor Provision, because it failed to file an answer. The

City contends Crown Castle would not be prejudiced by its

assertion of the Safe Harbor Provision as an affirmative

defense, even though it failed to answer Crown Castle’s

complaint.

Generally, affirmative defenses must be raised in the

first responsive pleading. Fed. R. Civ. P. 8(c). However,

“[w]here the matter is raised in the trial court in a

manner that does not result in unfair surprise . . . [a]

technical failure to comply precisely with Rule 8(c) is not

fatal.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572,

577 (5th Cir. 2009) (quoting Allied Chem. v. Mackay, 695

F.2d 854, 855-56 (5th Cir. 1983)). Thus, “[a]n affirmative

defense is not waived if the defendant ‘raised the issue at

a pragmatically sufficient time, and [the plaintiff] was not

prejudiced in its ability to respond.’” Id.

Here, the City has not answered the operative

complaint and, thus, has failed to assert the Safe Harbor

Provision as an affirmative defense. As discussed above,

the City’s failure to timely answer or otherwise raise the

Safe Harbor Provision as an affirmative defense is highly

prejudicial and constitutes unfair surprise to Crown

Castle at this stage of the litigation. Thus, the Court

finds the City did not raise its affirmative defenses at a

“pragmatically sufficient” time and therefore has waived

the Safe Harbor Provision as an affirmative defense. See

49a

Appendix B

Pasco, 566 F.3d at 577. But even if the City had timely

raised the Safe Harbor Provision, it still would not apply

in this instance.

ii.

Applicability of the Safe Harbor

Provision

Crown Castle contends the Federal Communications

Commission (the “FCC”) issued an order that agrees

with its reading of the Safe Harbor Provision, stating

right-of-way regulations should be “competitively neutral

and nondiscriminatory.” The City contends: (1) the safe

harbor provision clearly reserves the right of state and

local governments to “manage the public rights-of-way,”

which is the purpose of the Design Manual; and (2) the

clause “on a competitively neutral basis” only applies to

the preceding clause regarding reasonable compensation

under the last-antecedent canon.

The Safe Harbor Provision reads as follows:

Nothing in this section affects the authority of a

State or local government to manage the public

rights-of-way or to require fair and reasonable

compensation f rom t elecommunications

providers, on a competitively neutral and

nondiscriminatory basis, for use of public rights

of way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by

such government.

47 U.S.C. § 253(c).

50a

Appendix B

The scope of the Safe Harbor Provision’s protection

of aesthetic requirements or ordinances presents an

issue of first impression in this circuit, as the current

case law pertains mainly to the reasonableness of fees

imposed for use of public rights-of-ways. See, e.g., Sw.

Bell Tel. LP v. City of Houston, 529 F.3d 257 (5th Cir.

2008) (finding ordinance imposing relocation costs on

telecommunications owners to be “competitively neutral

and nondiscriminatory”). However, the FCC recently

issued an order offering guidance on the interpretation

of the Safe Harbor Provision with respect to aesthetic

requirements for small cell technology. There, the FCC

concluded “[the Safe Harbor Provision] is properly

constructed to suggest that Congress did not intend to

permit states and localities to rely on their ownership

of property within the [rights-of-way] as a pretext to

advance regulatory objectives that prohibit or have the

effect of prohibiting the provision of covered services

. . . .” In the Matter of Accelerating Wireless Broadband

Deployment by Removing Barriers to Infrastructure

Inv., 33 F.C.C. Rcd. 9088, 9138 (2018) (the “FCC Order”).13

The FCC Order concludes “that aesthetic requirements

are not preempted if they are . . . reasonable, [and] . . . no

13. Under the Hobbs Act, the Court does not have jurisdiction

to review the merits FCC Order and thus is bound by the FCC’s

prior ruling. 28 U.S.C. § 2342(1). However, the United States Court

of Appeals for the Ninth Circuit, upon review of the consolidated

challenges, affirmed in part and vacated in part the FCC Order. See

City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). The

only relevant portion of the FCC Order that the Ninth Circuit vacated

was the conclusion aesthetic requirements must be “objective.” Id. at

1042. The parties do not argue whether or not the contested sections

of the Design Manual are objective. Thus, the Court does not consider

this portion of the FCC Order for the purposes of this Order.

51a

Appendix B

more burdensome than those applied to other types of

infrastructure deployments . . . .” Id. at 9132. The FCC

also states “requirements . . . are reasonable [if] they are

technically feasible and reasonably directed to avoiding

or remedying the intangible public harm of unsightly

or out-of-character are also permissible.” Id. However,

the FCC caveats this by reiterating those requirements

which are more burdensome on small node networks

than other similar technologies would be impermissible

as the “discriminatory application evidences [those]

requirements are not, in fact, reasonable and directed

at remedying the impact of wireless infrastructure

deployment.” Id.

Here, the two different aesthetic requirements at

issuer are a spacing requirement and an underground

requirement. The spacing requirement at issue prevents

small cell node support poles from being constructed

within 300 feet of existing utility poles in the public rightsof-way.14 The underground requirement prevents small

cell node equipment from being installed above ground in

residential areas.15 It is undisputed these requirements

only apply to the construction of new small cell networks,16

14. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 9 at 18, 21 (Amended Design

Manual).

15. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 9 at 18 (Amended Design

Manual).

16. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 9 at 3 (“This [Amended]

Design Manual is for sighting and criteria for ‘the installation of

52a

Appendix B

and not to either existing small node networks or any

other utility that makes use of the public rights-of-ways.

While all other telecommunications service providers or

other utilities are subject to a less stringent standard,

“[a] person may be required to place certain facilities

within the public rights-of-way underground according to

applicable city requirements . . . unless the person makes a

compelling demonstration that . . . this requirement is not

reasonable, feasible or equally applicable to other similar

users of the public rights-of-way.” City of Pasadena,

Code of Ordinances § 32-99(b). With “unreasonable or

unfeasible” being defined as “whether the requirement

would subject the person or persons to . . . any other

unreasonable technical or economic burden.” Id. § 3299(n).

Based on plain reading of the Design Manual, the

spacing requirement for small node networks is clearly

more burdensome than the requirements applicable

to other users of the rights-of-ways found in the City’s

Code of Ordinances.17 Additionally, the underground

requirement in the Design Manual is more burdensome

because it does not contain the same exceptions for

technical infeasibility, and forces small cell network

equipment underground even if doing is not feasible or

Wireless Facilities, including Micro Network Nodes, Network Nodes,

Node support poles and related ground equipment being installed

pursuant to Loc. Gov. Code, Chapter 284 [which encourages the

construction of network nodes and node support poles].”).

17. For a full discussion on the spacing requirement, see infra

D.1.c.i.

53a

Appendix B

reasonable given technological constraints.18 Further,

the fact these requirements are more burdensome and

discriminatorily applied indicates these requirements are

not a reasonable exercise of the City’s power to manage

its public rights-of way. See In the Matter of Accelerating

Wireless Broadband Deployment by Removing Barriers

to Infrastructure Inv., 33 F.C.C. Rcd. at 9132. Thus, the

Court finds the Safe Harbor Provision does not apply here

because the spacing and Underground requirements at

issue are discriminatory and are not reasonable exercises

of the City’s power to manage its public rights-of-way.

Having decided the question of the applicability of the

safe harbor provision, the Court now turns to whether the

Design Manual’s spacing and underground requirements

are preempted by § 253(a) of the Act.

c.

Preemption Under 47 U.S.C. § 253(a)

Crown Castle contends the Design Manual’s spacing

and underground requirements materially inhibit its

ability to provide telecommunications services as the

requirements are onerous and discriminatory and are

thus preempted by Section 253(a) of the Act. The City

contends: (1) Crown Castle cannot establish a violation

of Section 253(a) because the spacing and underground

requirements do not materially inhibit Crown Castle’s

ability to provide services; and (2) the Act does not apply

to services related to the densification (i.e., increasing the

capacity) of existing networks.

18. For a full discussion on the underground requirement, see

infra D. 1.c.ii.

54a

Appendix B

Congress enacted the Act “to provide for procompetitive, de-regulatory national policy framework

designed to accelerate rapidly private sector deployment of

advanced telecommunications and information technologies

and services by opening all telecommunications markets

to competition.” Cellular Tel. Co. v. Town of Oyster Bay,

166 F.3d 490, 493 (2d Cir. 1999) (alternations and internal

quotation marks omitted). Under the Act, “[n]o State or

local statute or regulation, or other State or local legal

requirement, may prohibit or have the effect of prohibiting

the ability of any entity to provide any interstate or

intrastate telecommunications ser vice.” 47 U.S.C.

§ 253(a). A state or local requirement would constitute

an effective prohibition if the requirement “materially

inhibits” the “critical deployments of Small Wireless

Facilities and [the] nation’s drive to deploy 5G.” In the

Matter of Accelerating Wireless Broadband Deployment

by Removing Barriers to Infrastructure Inv., 33 F.C.C.

Rcd. at 9102-03. The Court now evaluates the novel issue

of whether the Design Manual’s spacing and underground

requirements materially inhibit Crown Castle’s ability to

provide telecommunications services, starting with the

spacing requirement.

i.

Spacing Requirement

Crown Castle contends the spacing requirement,

found in Sections 4.E.1 and 5.B of the Design Manual, is

preempted by Section 253(a) because it materially inhibits

Crown Castle’s ability to provide telecommunications

services: (1) by prohibiting construction of small cell

node support poles in roughly 80% of the locations

necessary to the network design; (2) because the City’s

55a

Appendix B

proposed alternative of forced co-location of the nodes on

CenterPoint utility poles would affect the efficacy of the

network design and be an improper way for the City to

control the means or facilities through with Crown Castle

provides its services; and (3) because it discriminates

against small node networks in that the requirements are

more onerous on small node networks than similar users

of public rights-of-way. Conversely, the City contends: (1)

Section 253(a) does not apply to municipal regulations

impeding the densification of an existing network; and

(2) the FCC’s interpretation of the Act is “irrational,

arbitrary, and capricious,”19 which should dissuade the

Court from applying it to the Design Manual.

Reasonable aesthetic requirements are those that are

“technically feasible and reasonably directed to avoiding

or remedying the intangible public harm of unsightly or

out-of-character are also permissible.” Id. However, a

“discriminatory application [of aesthetic requirements]

evidences [those] requirements are not, in fact, reasonable

and directed at remedying the impact of wireless

infrastructure deployment.” Id. Further, a minimum

spacing requirement may run afoul of the Act when it

“has the effect of materially inhibiting wireless service”

under Section 253(a). In the Matter of Accelerating

Wireless Broadband Deployment by Removing Barriers

to Infrastructure Inv., 33 F.C.C. Rcd. at 9132.

19. While the City argues the FCC Order is arbitrary and

capricious, it did not challenge the FCC Order when it was issued and

does not challenge it now. Thus, the Court does not consider whether

the FCC Order’s pronouncement regarding aesthetic requirements

is arbitrary and capricious at this time.

56a

Appendix B

The contested spacing requirement is found in two

places in the Design Manual and both identically state:

“New node support poles shall be at a minimum 300

feet from a utility pole or another Node Support Pole to

minimize the hazard of poles adjacent to road-ways and

minimize effect on property values and aesthetics on the

area.” 20 Crown Castle contends this spacing requirement

is not only discriminatory, as it only applies to new small

node networks, but it is also not technically feasible.

The purpose of the DAS network Crown Castle wishes

to create is to densify, or enhance, T-Mobile’s cellular

network coverage in the City. The new DAS network

Crown Castle seeks to implement requires the nodes to be

placed at specific locations to function properly. 21 Further,

the small network nodes must be installed at a specific

height, between thirty-one and thirty-five feet. 22 Any node

installed below or above this height would compromise the

functionality and efficacy of the entire DAS network. 23

Crown Castle contends the spacing requirement has

20. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 9 at 18,21 (Amended Design

Manual).

21. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 15,35-39 (Expert Report

of Richard Conroy).

22. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 16-17 (Expert Report

of Richard Conroy).

23. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 16-17 (Expert Report

of Richard Conroy).

57a

Appendix B

precluded the use of roughly 80% of its intended sites. 24

Meaning, there are only a handful of sites where Crown

Castle could possibly install its nodes that would be within

300 feet of an existing utility pole, and this does not take

into account whether these locations would be viable in

Crown Castle’s densification efforts.

In response, the City contends Section 253(a) does not

apply to the densification of existing cellular networks,

only the construction of new networks. However, the City

overlooks the broad language of Section 253(a), which says

“[n]o . . . local statute or regulation . . . may prohibit or

have the effect of prohibiting the ability of any entity to

provide any interstate or intrastate telecommunications

service.” 47 U.S.C. § 253(a) (emphasis added). Therefore,

the Court finds Section 253(a) applies to Crown Castle’s

efforts to densify T-Mobile’s network.

As alternatives to Crown Castle’s noncomplying DAS

network plan, the City proposed Crown Castle could either

co-locate its small network nodes on existing CenterPoint

utility poles or relocate the node to a conforming location.

As to the forced co-location alternative—assuming

CenterPoint consents—it would require the small

network nodes be installed at roughly forty to fifty-five

feet, much higher than the optimal, effective height for

this technology. 25 And with respect to the relocation

24. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 32 (Expert Report of

Richard Conroy).

25. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 22-23 (Expert Report

of Richard Conroy).

58a

Appendix B

alternative, it overlooks the fact these small network nodes

must be placed in very specific locations to actually achieve

their intended purpose. The fact an alternative exists

does not negate the fact the Design Manual specifically

targets the construction small cell networks. Notably, all

other users of public rights-of-way are not subject the

same spacing requirements despite the City’s insistence

the basis for the Design Manual’s spacing requirement

is to help visibility on rights-of-way as a matter of public

safety. 26 All other users of the City’s public rights-of-way

are subject to the less stringent requirements found in

the City’s Code of Ordinances—which does not include

a spacing requirement. See City of Pasadena, Code

of Ordinances § 32-99. However, the fact this spacing

requirement is discriminatorily applied to only small cell

technology indicates the purpose of the requirement is

not, in fact, public safety and if unreasonable. See In the

Matter of Accelerating Wireless Broadband Deployment

by Removing Barriers to Infrastructure Inv., 33 F.C.C.

Rcd. at 9132.

Given the discriminatory application of the Design

Manual’s spacing requirements in Sections 4.E.1 and

5.B to small cell networks, the Court finds the spacing

requirement is not reasonable. The Court further finds the

spacing requirement effectively prohibits the construction

of small node networks by Prohibiting construction of

26. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 1 at 83:5-16 (Q: “CenterPoint

Energy is permitted to locate their poles closer than 300 feet apart in

the [City] right-of-way; correct?”; A: “They operate under different

rules.”) (Deposition of Zafar Iqbal).

59a

Appendix B

such nodes in large swaths of the City’s public rights-ofways. Because the Court finds the spacing requirement

effectively prohibits the construction of small node

networks, the Court further finds the spacing requirement

effectively prohibits Crown Castle from providing

telecommunications services. Thus, the Court finds the

spacing requirement as found in the Design Manual is

preempted by Section 253(a) of the Act. Accordingly,

the Court grants Crown Castle’s motion for summary

judgment as to the spacing requirement, found in Sections

4.E.1 and 5.B of the Design Manual. Now the Court turns

to whether the underground requirement is preempted

by the Act.

ii.

Underground Requirement

Crown Castle contends the underground requirement,

found in Sections 4.C.3 and 4.C.4 of the Design Manual, are

preempted by Section 253 because it materially inhibits

Crown Castle’s ability to provide telecommunications

services because this requirement is not technologically

feasible. The City contends: (1) Section 253(a) does not apply

to municipal regulations impeding the densification of an

existing network; and (2) the underground requirement is

a reasonable exercise of its right to manage public rightsof-ways based on aesthetics and safety concerns.

As with spacing requirements, the FCC Order also

discusses whether an Underground requirement would

be preempted by the Act. With respect to underground

requirements, “a requirement that all wireless facilities

be deployed underground would amount to an effective

60a

Appendix B

prohibition given the propagation characteristics of

wireless signals.” In the Matter of Accelerating Wireless

Broadband Deployment by Removing Barriers to

Infrastructure Inv., 33 F.C.C. Red. at 9133 (emphasis in

original).

Here, the underg round requirement reads in

relevant part: “A Network Provider is prohibited from

installing above ground on an existing pole a Network

Node and related equipment in a public right-of-way in a

residential area,” and “all the equipment is required to

be installed underground for the safety of the residents

and the aesthetics of the area.” 27 While all other users of

the City’s public rights-of-way are “may be required to

place certain facilities within the public rights-of-Way

underground according to applicable city requirements . . .

unless the person makes a compelling demonstration that

. . . this requirement is not reasonable, feasible or equally

applicable to other similar users of the public rights-ofway.” City of Pasadena, Code of Ordinances § 32-99(b).

Crown Castle contends it is not feasible to force its

small cell network nodes underground because it would

effectively doom those nodes to failure. Crown Castle

contends requiring these nodes to be buried underground

would drastically reduce their efficacy, effectively

prohibiting them from providing telecommunications

27. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 9 at 18, 21 (Amended Design

Manual).

61a

Appendix B

services. 28 Crown Castle also notes—assuming it is

technically feasible to bury the small cell equipment

underground—the nodes would have to be sealed in

without proper ventilation in a concrete box to prevent

water intrusion because the City is prone to flooding. 29

This would cause then the node to overheat and cease

to function. 30 Due to the nature of technology and

practical considerations, Crown Castle contends it is

not technically feasible to place its small network nodes

underground. Crown Castle also notes its position is in

accord with the FCC Order which states an underground

requirement such as the one found in the Design Manual

would “amount to an effective prohibition” on the ability

to provide telecommunications services. In the Matter

of Accelerating Wireless Broadband Deployment by

Removing Barriers to Infrastructure Inv., 33 F.C.C. Rcd.

at 9133

The City first contends Section 253(a) does not

apply here because Crown Castle seeks to densify an

28. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 33-35 (Expert Report

of Richard Conroy).

29. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 33 (Expert Report of

Richard Conroy); Plaintiff Crown Castle Fiber LLC’s Motion for

Summary Judgment, Document No. 124, Exhibit 3 at 131:6-132:8

(Deposition of Richard Conroy).

30. Plaintiff Crown Castle Fiber LLC’s Motion for Summary

Judgment, Document No. 124, Exhibit 4A at 33 (Expert Report of

Richard Conroy); Plaintiff Crown Castle Fiber LLC’s Motion for

Summary Judgment, Document No. 124, Exhibit 3 at 131:6-132 : 8

(Deposition of Richard Conroy).

62a

Appendix B

existing cellular network. However, as the Court found

above, Section 253(a) applies to the densification of an

existing cellular network. 31 The City also contends the

underground requirement falls well within its right to

manage its public rights-of-ways for safety and aesthetic

concerns. However, the City, in both its response to Crown

Castle’s motion for summary judgment and its own motion

for summary judgment, fails to acknowledge the technical

impracticality of forcing small cell nodes and their

equipment underground. Nor does the City acknowledge

the discrepancy between the underground requirement in

the Design Manual and the underground requirement in

its Code of Ordinances. At least in the Code of Ordinances,

if a party can make a showing that the requirement is

not technically feasible, the party can be excepted from

complying with the underground requirement. See City

of Pasadena, Code of Ordinances § 32-99(b). There is no

such process under the Design Manual. In light of this

unexplained discrepancy in treatment, the Court finds

the underground requirement found in Sections 4.C.3 and

4.C.4 of the Design Manual is not a reasonable exercise of

the City’s right to manage its public rights-of-way.

Therefore, the Cour t f inds the underg round

requirement effectively prohibits the construction of

small cell nodes because it is not feasible to place such

nodes underground due to both technological and practical

considerations. Because the Court finds the underground

requirement effectively prohibits the construction of small

cell networks, the Court further finds the underground

requirement effectively prohibits Crown Castle from

31. See discussion supra D.1.c.i.

63a

Appendix B

providing telecommunications ser vices. Thus, the

Court finds the underground requirement as found in

the Design Manual is preempted by § 253(a) of the Act.

Therefore, the Court grants Crown Castle’s motion for

summary judgment as to the underground requirement

found in Sections 4.C.3 and 4.C.4 of the Design Manual.

Accordingly, Crown Castle’s motion for summary

judgment as to Crown Castle’s preemption claim based

on 47 U.S.C. § 253(a) is granted.

2.

Preemption Under Texas Local Government

Code § 284

Crown Castle contends the Design Manual’s spacing

and underground requirements are also preempted by

Chapter 284 of the Texas Local Government Code. The

City contends it complied with the requirements set by

Chapter 284, thus Crown Castle’s claim fails. However, the

Court need not reach this issue given the Court’s ruling

above, finding the Design Manual is preempted by Section

253(a) of the Act.

3.

Injunctive Relief

Crown Castle contends it is entitled to injunctive relief

because: (1) it can show success on the merits; (2) it can

show a threat of immediate and irreparable harm; (3) the

harm to Crown Castle outweighs the harm to the City

if a permanent injunction is issued; and (4) a permanent

injunction would serve the public interest in this case,

given Crown Castle seeks to increase telecommunications

services offered to the public.

64a

Appendix B

The elements of a permanent injunction are nearly

identical to those of a preliminary injunction, except that

a “plaintiff must show actual success on the merits rather

than a mere likelihood of success.” Amoco Prod. Co. v.

Village of Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396,

94 L. Ed. 2d 542 (1987). Thus, to establish it is entitled to

a permanent injunction, a plaintiff must demonstrate: (1)

an actual success on the merits; (2) a substantial threat

of immediate and irreparable harm for which it has no

adequate remedy at law; (3) that greater injury will

result from denying the [injunction] than from its being

granted; and (4) that an injunction will not disserve the

public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th

Cir. 1985); Amoco Prod, 480 U.S. at 546 n.12. The decision

whether to grant or deny a permanent injunction is within

a court’s discretion. See Lemon v. Kurtzman, 411 U.S. 192,

200-01, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973). A permanent

injunction “is an extraordinary and drastic remedy, not to

be granted routinely, but only when the movant, by a clear

showing, carries the burden of persuasion.” Holland Am.

Ins. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

However, even if the movant establishes all the required

elements for a permanent injunction, it still remains within

the court’s discretion to either grant or deny such relief.

Lemon, 411 U.S. at 200-01.

Here, the first element has been established as Crown

Castle succeeded on the merits of its claims that the

spacing and underground requirements are preempted

by the Act.

As for the second element, Crown Castle contends it

will suffer, and has suffered, immediate and irreparable

65a

Appendix B

halm as the spacing and underground requirements

preventing it from building the DAS network in the City.

The City fails to show Crown Castle would not suffer such

harm if an injunction does not issue. Thus, the Court finds

Crown Castle would suffer immediate and irreparable

harm in the absence of a permanent injunction.

With respect to the third element, Crown Castle

contends it would suffer a greater harm from the denial of

a permanent injunction than the City would suffer it one

were granted in this case. Indeed, Crown Castle would be

prevented from implementing the DAS network pursuant

to its agreement with T-Mobile, affecting the quality of

telecommunications services provided to the public. The

City fails to show the harm from its inability to enforce

the spacing and underground requirement outweighs the

harm to Crown Castle if it is unable to implement the DAS

network. Therefore, the Court finds the harm in denying a

permanent injunction outweighs the harm in granting one.

Finally, Crow n Castle contends a per manent

injunction in this case would actually benefit the public,

as its goal in building the DAS network with T-Mobile

is enhance cellular network coverage available to the

public. The City does not argue, and consequently fails

to show, the public would be disserved by a permanent

injunction in this case. Thus, the Court finds the issuance

of a permanent injunction in this case would not disserve

the public interest. Therefore, the Court finds Crown

Castle established it is entitled to the entry of a permanent

injunction, enjoining the enforcement of Sections 4.C.3,

4.C.4, 4.E.1, and 5.B of the Design Manual.

66a

Appendix B

E. The City’s Motion for Summary Judgment

The City contends it is entitled to summary judgment

because its conduct falls within the Safe Harbor Provision

which preserves a municipality’s power to manage

its rights-of-way. In light of the Court’s ruling above,

the Court determines the City’s motion for summary

judgment should be denied for the reasons set forth above.

Accordingly, the City’s motion for summary judgment is

denied.

F. Crown Castle’s Motion for Judgment on the

Pleadings

Crown Castle contends judgment on the pleadings is

proper because the City has not yet filed an answer, and

thus the City has procedurally admitted to all of Crown

Castle’s allegations in its amended complaint. The City,

in response, moved for leave to file an answer. 32 In light of

the Court’s ruling above, the Court determines the motion

for judgment on the pleadings should be denied as moot.

Accordingly, Crown Castle’s motion for judgment on the

pleadings is denied as moot.

IV. CONCLUSION

Based on the foregoing, the Court hereby

ORDERS that Plaintiff Crown Castle Fiber LLC’s

Motion for Judgment on the Pleadings (Document No.

123) is DENIED. The Court further

32. See discussion supra B.1 and B.2.

67a

Appendix B

ORDERS that Defendant City of Pasadena’s Motion

to Dismiss and for Final Summary Judgment (Document

No. 128) is DENIED. The Court further

ORDERS that Defendant City of Pasadena’s

Combined Opposition to Plaintiff’s Motion for Judgment

on the Pleadings and the City’s Opposed Motion for Leave

to File a Responsive Pleading (Document No. 134) is

DENIED AS MOOT. The Court further

ORDERS that Plaintiff Crown Castle Fiber LLC’s

evidentiary objections to Defendant City of Pasadena’s

summary judgment evidence are OVERRULED. The

Court further

ORDERS that Plaintiff Crown Castle Fiber LLC’s

Motion for Summary Judgment (Document No. 124) is

GRANTED. The Court further

ORDERS that Defendant the City of Pasadena is

PERMANENTLY ENJOINED from enforcing Sections

4.C.3, 4.C.4, 4.E.1, and 5.B of its Design Manual as to

Plaintiff Crown Castle Fiber LLC for the purposes of

installing new small nodes and node support poles in

public rights-of-ways. The Court will enter a separate

final judgment.

SIGNED at Houston, Texas, on this 2 day of August,

2022.

/s/ David Hittner

DAVID HITTNER

United States District Judge

68a

Appendix COF THE UNITED

APPENDIX C — OPINION

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED SEPTEMBER 25, 2023

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-20454

CROWN CASTLE FIBER, L.L.C.,

Plaintiff -Appellee,

versus

CITY OF PASADENA, TEXAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-3369

ON PETITION FOR REHEARING

AND REHEARING EN BANC

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

The petition for panel rehearing is DENIED. Because

no member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc

(Fed. R. A pp. P. 35 and 5th Cir. R. 35), the petition for

rehearing en banc is DENIED.

69a

D STATUTORY

APPENDIX D —Appendix

RELEVANT

PROVISIONS

U.S. Const. art 6, Cl. 2.

Clause 2, Supremacy Clause

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.

42 USCS §1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of

this section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be a

statute of the District of Columbia.

70a

Appendix D

47 U.S.C. §153(53)

(5 3) T e l e c o m m u n i c a t i o n s s e r v i c e . T h e t e r m

“telecommunications service” means the offering of

telecommunications for a fee directly to the public, or to

such classes of users as to be effectively available directly

to the public, regardless of the facilities used.

47 U.S.C. §253

(a) In general. No State or local statute or regulation, or

other State or local legal requirement, may prohibit or

have the effect of prohibiting the ability of any entity to

provide any interstate or intrastate telecommunications

service.

(b) State regulator y authority. Nothing in this

section shall affect the ability of a State to impose,

on a competitively neutral basis and consistent with

section 254 [47 USCS § 254], requirements necessary

to preserve and advance universal service, protect the

public safety and welfare, ensure the continued quality

of telecommunications services, and safeguard the rights

of consumers.

(c) State and local government authority. Nothing

in this section affects the authority of a State or local

government to manage the public rights-of-way or

to require fair and reasonable compensation from

telecommunications providers, on a competitively neutral

and nondiscriminatory basis, for use of public rights-ofway on a nondiscriminatory basis, if the compensation

required is publicly disclosed by such government.

71a

Appendix D

(d) Preemption. If, after notice and an opportunity for

public comment, the Commission determines that a State

or local government has permitted or imposed any statute,

regulation, or legal requirement that violates subsection

(a) or (b), the Commission shall preempt the enforcement

of such statute, regulation, or legal requirement to the

extent necessary to correct such violation or inconsistency.

(e) Commercial mobile service providers. Nothing in this

section shall affect the application of section 332(c)(3) [47

USCS § 332(c)(3)] to commercial mobile service providers.

(f) Rural markets. It shall not be a violation of this

section for a State to require a telecommunications

carrier that seeks to provide telephone exchange service

or exchange access in a service area served by a rural

telephone company to meet the requirements in section

214(e)(1) [47 USCS § 214(e)(1)] for designation as an eligible

telecommunications carrier for that area before being

permitted to provide such service. This subsection shall

not apply—

(1) to a service area served by a rural telephone company

that has obtained an exemption, suspension, or modification

of section 251(c)(4) [47 USCS § 251(c)(4)] that effectively

prevents a competitor from meeting the requirements of

section 214(e)(1) [47 USCS § 214(e)(1)]; and

(2) to a provider of commercial mobile services.

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47 U.S.C. §332(c)(7)(B)(v)

(v) Any person adversely affected by any final action

or failure to act by a State or local government or any

instrumentality thereof that is inconsistent with this

subparagraph may, within 30 days after such action or

failure to act, commence an action in any court of competent

jurisdiction. The court shall hear and decide such action on

an expedited basis. Any person adversely affected by an

act or failure to act by a State or local government or any

instrumentality thereof that is inconsistent with clause

(iv) may petition the Commission for relief.

47 U.S.C. §401

(a) Jurisdiction. The district courts of the United States

shall have jurisdiction, upon application of the Attorney

General of the United States at the request of the

Commission, alleging a failure to comply with or a violation

of any of the provisions of this Act by any person, to issue

a writ or writs of mandamus commanding such person to

comply with the provisions of this Act.

(b) Orders of Commission. If any person fails or

neglects to obey any order of the Commission other than

for the payment of money, while the same is in effect,

the Commission or any party injured thereby, or the

United States, by its Attorney General, may apply to the

appropriate district court of the United States for the

enforcement of such order. If, after hearing, that court

determines that the order was regularly made and duly

served, and that the person is in disobedience of the

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Appendix D

same, the court shall enforce obedience to such order by

a writ of injunction or other proper process, mandatory

or otherwise, to restrain such person or the officers,

agents, or representatives of such person, from further

disobedience of such order, or to enjoin upon it or them

obedience to the same.

(c) Duty to prosecute. Upon the request of the Commission

it shall be the duty of any district attorney [United States

Attorney] of the United States to whom the Commission

may apply to institute in the proper court and to prosecute

under the direction of the Attorney General of the United

States all necessary proceedings for the enforcement of

the provisions of this Act and for the punishment of all

violations thereof, and the costs and expenses of such

prosecutions shall be paid out of the appropriations for

the expenses of the courts of the United States.