On Thursday, Judge Susan Illston of the Northern District of California issued an order granting in part T-Mobile’s motion for summary judgment and granting in part its motion for preliminary injunction against the City and County of San Francisco, et al. following a March 12 hearing on the matter regarding its cell sites applications.
According to the order, the lawsuit arises out of alleged issues under the Spectrum Act and related regulations. The court noted that under the Spectrum Act, “[a] State or local government may not deny, and shall approve, any eligible facilities request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station;” eligible facilities must be approved within 60 days of submission.
The court stated that T-Mobile must obtain permits from the defendants in order to install or modify its cell sites and wireless facilities, which T-Mobile did in 2020. In October 2020, T-Mobile informed the defendants that they failed to approve 27 of its applications and thus, pursuant to the Spectrum Act these were deemed granted. After the notification, the defendants reviewed and approved 19 out of the 27 applications, the failure to timely approve happened again in November and December 2020; those applications were also deemed granted under the Spectrum Act. T-Mobile sued in November after the defendants failed to grant its applications to modify its cell sites, which were purportedly designed to help with increased demand from the COVID-19 pandemic. In February, T-Mobile filed a motion for summary judgment and a motion for a preliminary injunction, arguing that the “defendants violated the Spectrum Act by failing to timely approve T-Mobile’s applications.”
T-Mobile’s motion for summary judgment argued that pursuant to the Spectrum Act the defendants are required to issue permits for its deemed granted applications. However, the defendants asserted that the Spectrum Act “violates Tenth Amendment’s anticommandeering doctrine because ‘the Constitution ‘confers upon Congress the power to regulate individuals, not states.’’” The court found that the Spectrum Act does not violate the anticommandeering doctrine. As a result, the court “declines to rule in whether defendants are estopped from asserting (their) Tenth Amendment argument.”
The court also addressed the defendants’ argument that the Spectrum Act does not “impose affirmative obligations on defendants to issue permits for T-Mobile’s applications.” The court noted that the Spectrum Act “only prohibits State or local governments from denying qualifying applications.” As a result, the court granted in part T-Mobile’s request for summary judgment.
In the motion for preliminary injunction, T-Mobile asked the court to order the defendants to issue permits for its pending applications that have been deemed granted. The defendants argued that T-Mobile is not entitled to this request and that T-Mobile has failed to show it will suffer harm without the injunction. The court noted that the Spectrum Act provides for such an instance where a state or local government failed to act within the specified time period; specifically, this failure allows a party to ask a court “for an injunction granting the application.”
The court found that T-Mobile “demonstrated likelihood of success on the merits of their claims that defendants violated the Spectrum (A)ct by failing to act on T-Mobile’s application.” The court granted T-Mobile’s motion for injunctive relief that: “(1) the deemed granted applications are in law as effective as granted applications; and (2) defendants the City and County of San Francisco and the City and County of San Francisco Department of Building Inspection are estopped from imposing penalties or in any way preventing T-Mobile from proceeding with installations for T-Mobile’s deemed granted applications.”
The City and County of San Francisco are one of many municipalities facing litigation over cell tower or facility applications. AT&T sued a county for denying its request and a city for blocking the installation of cell sites. Verizon sued a town for failing to timely approve its cell tower plans.
T-Mobile is represented by Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. The defendants are represented by the Office of the San Francisco City Attorney.
