PITTSBURGH – The City of Pittsburgh and Commonwealth of Pennsylvania have lost an attempt to dismiss litigation from AT&T, which asserted that the defendants violated the Telecommunications Act of 1996 by their limiting of the company’s ability to place wireless facilities on telephone poles in the City’s rights-of-way.
New Cingular Wireless PCS, LLC (doing business as “AT&T Mobility”) of King of Prussia first filed suit in the U.S. District Court for the Western District of Pennsylvania on April 6, 2021 versus the City and the Commonwealth.
“AT&T has been attempting to place ‘small cell’ wireless facilities (i.e., small antennas and related equipment) on poles in the City’s rights-of-way, to provide and improve wireless services in the City,” the suit stated.
“Federal law limits the ability of municipalities to block installation of such facilities, based on nationwide goals of promoting the widespread availability of advanced, reliable wireless services. The City has violated this federal law, and AT&T seeks declaratory and injunctive relief.”
The suit said that under the TCA, municipalities must act upon applications to place wireless facilities within a “reasonable period of time” and that local regulations may not “prohibit or have the effect of prohibiting the ability” of a carrier to provide telecommunications services.
Furthermore, local regulation of the placement of wireless facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services”.
“In its 2018 Small Cell Order, the FCC clarified that in regard to small cell facilities, a ‘reasonable period of time’ is 60 days to process applications requesting collocations on existing structures, and 90 days to process all other applications. Accordingly, if state or local governments do not act upon applications within those timeframes, then a ‘failure to act’ has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v) of the TCA,” per the suit.
“Pursuant to the City Code, a right-of-way use (ROW) agreement is required to construct, operate or continue to operate a telecommunications system within the City’s public rights-of-way. However, nothing in the City Code requires an applicant to have an executed right-of-way use agreement in hand as a condition precedent for filing the initial application for a telecommunications system within the public rights-of-way.”
The suit added that the City’s recurring fee for telecommunications installations ($850 per facility) exceeds the FCC’s presumptively reasonable recurring fee ($270 per facility) by nearly 215 percent, in violation of federal law, and the two sides have been unable to resolve this dispute.
“On Dec. 8, 2020, AT&T finalized submission of two pole permit applications through the City’s web-based filing portal known as ‘OneStopPGH’ and paid the required filing fees to the City. Both applications involved the swap-out of existing decorative light poles owned by the City with replacement poles of substantially similar design, the collocation of antennas at the top of each pole, and installation of radio equipment to be housed in equipment shrouds attached to the side of the poles,” the suit said.
“The Small Cell Order shot clock for the applications is 90 days. The shot clock on the applications has not been tolled, and it expired on March 8, 2021, with the City taking no action on the applications. AT&T is informed and believes that the City’s failure to act appropriately on the applications is based on AT&T’s refusal to sign the City’s ROW Agreement which mandates payment to the City of the above-stated inappropriate and illegal fees.”
The City filed a motion to dismiss the complaint on July 21, 2021, arguing that the application was not filed in good faith.
“AT&T files the instant action with unclean hands – its own application materials are unfiled and its replacement Telecommunications Pole Application Fees unpaid. Consequently, plaintiff’s action does not arise under a federal question because unfiled and unpaid applications do not invoke 47 U.S.C. Section 332(c)(7) or 47 U.S.C. Section 253. In the absence of due filing and payment requiring defendant to act, plaintiff has not been ‘adversely affected…[by] failure to act’ under 47 U.S.C. Section 332(c)(7)(B)(v),” the answer stated.
“Plaintiff has not suffered a concrete and particularized injury – its harms are hypothetical. Unpaid application fees cannot invoke 47 U.S.C. Section 253 or satisfy legal requirements of the City Code. ‘Under Article III, federal courts do not adjudicate hypothetical or abstract disputes…federal courts do not issue advisory opinions.’ Unfiled and unpaid applications for Small Wireless Facilities are not ripe for judicial resolution.”
According to the City, the plaintiff’s fourth claim for relief accuses the City of both excessive costs and improper accounting of such costs – which are significant allegations – yet the plaintiff failed to plead with particularity the essential elements of unreasonable approximation of defendant’s costs that are objectively unreasonable.
“Plaintiff’s allegations of unreasonableness are no more than conclusions, and are not entitled to the assumption of truth,” the dismissal motion said.
U.S. District Court for the Western District of Pennsylvania Judge Christy Criswell Wiegand ordered that the City of Pittsburgh’s dismissal motion would be denied without prejudice, on Jan. 5.
“Defendant makes a factual challenge to subject matter jurisdiction, asserting that Plaintiff did not ‘duly file’ its applications for the 5G facilities with the City and therefore, the federal Telecommunications Act is not triggered and federal question jurisdiction does not exist in this case. Plaintiff asserts that subject matter jurisdiction does exist. The parties have filed competing declarations in support of their positions on subject matter jurisdiction. Plaintiff bears the burden of showing that subject matter jurisdiction exists, and because defendant raises a factual challenge to subject matter jurisdiction, the Court may weigh the evidence to satisfy itself that subject matter jurisdiction exists. The Court cannot make that determination without additional information,” Wiegand said.
“Therefore, the parties are hereby ordered to engage in an expedited 45-day period of discovery on the issue of whether subject matter jurisdiction exists, which may include discovery regarding: (1) Whether plaintiff’s applications were filed/submitted; (2) Whether the applications were ‘complete,’ including whether an executed right of way agreement and/or insurance certificate and bond were required to be submitted in order for the application to be ‘filed’ or could be provided at some later time, and including what ‘fees’ were required to be paid, and when. It is further ordered that the jurisdictional discovery period will close on Feb. 18. Defendant’s current motion to dismiss is denied without prejudice and, if appropriate, defendant may file a renewed motion to dismiss after jurisdictional discovery, on or before March 11. It is further ordered that defendant’s motion to strike plaintiff’s notice of supplemental authority is hereby dismissed as moot.”
Subsequent to Wiegand’s recent ruling, the City of Pittsburgh and Commonwealth of Pennsylvania filed a renewed motion to dismiss on March 30.
“In addition to unpaid application fees, plaintiff also failed to submit certain documents required by the City Code, including the following: Telecommunications Right-of-Way Use Agreement, certificate of insurance, construction bond, Radio Frequency (RF) Propagation Map and certification that the submitted documents are adequately complete and accurate for review,” the defendants’ second dismissal motion stated.
“On Dec. 3, 2020, the AT&T construction manager responsible for the Two New Poles and Small Cell Antennae instructed his internal team, ‘We have permission to submit the first two permits for the City of Pittsburgh. We anticipate the City coming back to us to sign the right-of-way agreement. Things will get sticky there.’ AT&T’s authorization email demonstrates plaintiff’s foreknowledge of its application incompleteness. The email also reveals that AT&T intentionally withheld submission of the Right-of-Way Use Agreement to provoke the ‘sticky’ situation of this federal lawsuit.”
The defendants argued that the City requires that application fees must be paid before an application is submitted, that unsubmitted applications are not duly filed and that the TCA only requires the City to act “after the request is duly filed.”
“Because the plaintiff failed to pay the City’s uncontested, upfront permit application fees, plaintiff did not ‘duly file’ its applications for the Two New Poles and Small Wireless Antennae. Therefore, the TCA is not triggered and federal question jurisdiction does not exist in this case,” per the renewed dismissal motion.
UPDATE
Wiegand threw out the defendants’ renewed dismissal motion, in a memorandum opinion issued on Aug. 15.
“Following jurisdictional discovery, it is clear that there are genuinely disputed facts as to whether the application was ‘duly filed’, such that this question is intertwined with the underlying merits of the decision. Thus, the Court, in accordance with instructions from the Third Circuit, finds that jurisdiction exists and considers the current motion as a direct attack on the merits of AT&T’s case,” Wiegand said.
“The City’s 12(b)(6) motion fares no better, because the City’s argument is essentially the same: That AT&T’s amended complaint does not plead payment-in-full of the application fees or that the application was ‘duly filed.’ After reviewing the complaint, the Court finds that the factual allegations related to AT&T's wireless applications are ‘enough to raise a right to relief above the speculative level,’ and are ‘sufficient…to ‘state a claim to relief that is plausible on its face.” Thus, the City’s renewed motion to dismiss is hereby denied.”
For counts of unreasonable delay, shot clock violation and effective prohibition, the plaintiff is seeking various reliefs:
• A declaration and judgment that the City has violated the TCA by failing to act within a reasonable period of time on AT&T’s applications;
• For a declaration and judgment that the City has violated the TCA by effectively prohibiting AT&T from improving and providing personal wireless services and telecommunications services;
• For an order in mandamus or an injunction mandating that the City grant forthwith AT&T’s applications and immediately issue all permits and all other authorizations necessary for the construction of the proposed facilities;
• For an order in mandamus or an injunction prohibiting the City from charging excessive, unreasonable and illegal fees in violation of federal law;
• For an award of AT&T’s costs of suit herein; and
• For such other and further relief as the Court may deem just and proper, including retaining jurisdiction over this matter to ensure compliance with any order that the Court may issue.
The plaintiff is represented by Christopher H. Schubert and Michael T. Shiring of Riley Riper Hollin & Colagreco in Exton, plus Raymond Bolaños of AT&T’s Legal Department, in San Francisco, Calif.
The defendants are represented by Michael E. Kennedy and Yvonne Schlosberg Hilton of the City of Pittsburgh’s Law Department and Daniel Cohen, Joel Winston and Michael Roberts of Cohen Law Group, all in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00443
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com