Pasadena ‘Overtly’ Discriminates Against Small-Cell Wireless, Says Crown Castle Lawyer
Crown Castle’s infrastructure fight with the city of Pasadena, Texas, is “undisputably a case in which Crown Castle was not providing any telecommunications services at all,” as defined by the Telecommunications Act, said city attorney William Helfand with Lewis Brisbois during oral argument Wednesday before the 5th U.S. Circuit Court of Appeals. Pasadena is asking the 5th Circuit to reverse the district court’s Aug. 2 decision granting Crown Castle summary judgment.
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The city argues that the minimum spacing and underground requirements in Pasadena's design manual for Crown Castle's small-cell installations are facially valid and consistent with the city’s authority (see 2212090044). Crown Castle sued Pasadena in September 2020, asserting the TCA preempts the spacing requirement in the city’s manual because that manual significantly limits the locations where it may install small-cell nodes and node support poles in the public rights of way (ROWs). The district court held that a “plain reading” of the manual shows the spacing requirement for small-node networks is “clearly more burdensome” than the requirements applicable to other users of the public ROWs.
The “sole purpose” of Crown Castle’s work in Pasadena “was to erect poles and antennas” for T-Mobile, its customer, said Helfand. “T-Mobile was the telecommunications company here attempting to deploy additional small-cell nodes to augment their 5G network,” he said. “To be sure, Crown Castle does from time to time provide telecommunications services,” he said. Crown Castle “has pointed to cases” in which it has deployed fiber-optic cables for that purpose, “as well as their own distributed network systems,” he said.
Those cases are “a red herring,” said Helfand. In Pasadena, the only thing Crown Castle “contracted to do was deploy antennas” on poles that Crown Castle “wished to erect,” he said. “Notably, T-Mobile has not intervened in this case, and has not claimed any prohibition or impairment of their ability to carry out their telecommunications function.” Besides arguing that T-Mobile wasn’t a telecommunications provider in its Pasadena role, said Helfand, the city’s other point is that its manual, even its undergrounding provisions, doesn’t have the effect of prohibiting telecommunications services, in violation of the TCA.
Because the same “design manual restrictions exist” in Galveston and throughout the Dallas Metroplex area, it appears that Crown Castle “wants to use this case to get a ruling from a court that they can now just go into rights-of-way and start erecting poles,” said Helfand. “Those poles have value to them besides the service of providing it to someone like a T-Mobile,” by leasing out space on the poles to other carriers, he said. “Here, rather than appealing to the city, Crown Castle has created the problem,” he said.
The TCA “provides that any state or local regulation that effectively prohibits the development of wireless technologies is preempted,” said Crown Castle attorney Russell Post with Beck Redden. “For 30 years, courts have been able to administer that,” he said. “What we have here is a record in which the evidence conclusively establishes that it is not technically feasible for Crown Castle to deploy this small-cell network in the manner in which it must be deployed in order to maximize coverage and capacity for the Pasadena region.”
In light of the abundance of utility poles erected in the city of Pasadena, “it is not technically possible to deploy the network in Pasadena in a way that will accomplish the intentions of small-cell technology,” said Post. “It’s important to remember, Pasadena stands alone in the entire Greater Houston metropolitan area” in its resistance to Crown Castle’s small cell technology, he said. “Crown Castle has been able to deploy this technology in every other area of Houston, consistent with other cities’ local regulations,” he said. “Pasadena is the only jurisdiction that has precluded it. It’s simply a function of the way in which the regulations were written, and the locations of the existing utility poles in Pasadena. There is no dispute in the evidence on that.”
It’s also “not controverted by any evidence from the city” that Pasadena is “overtly discriminating against small-cell technology,” said Post. “This is not competitively neutral regulation,” he said. “It is directed at small-cell technology.” When asked by one of the panel why the city would do that, Post responded that he “won’t speculate on what motivations the city may have had.” But the record “bears out that the city might not know what its motivations were,” he said. Pasadena procured its “recommended manual” from a third-party attorney and presented it to the city council “without any independent evaluation of the reasoning for these regulations,” he said.
The FCC “recognizes that when regulations discriminate against a particular wireless technology, that is itself conclusive proof that they are not reasonable regulations,” said Post. “They therefore materially inhibit the development of the technology,” he said.