Fed. Dist Court of SC Finds City Failed to Act on Telecommunications Services

This post was authored by Matthew Loescher, Esq.

Crown Castle is a telecommunications services provider that seeks to install and operate telecommunications facilities in the City of Charleston, South Carolina. To provide its services, Crown Castle uses fiber optic lines and equipment figurations called “Nodes”, which consist of various equipment and are located on utility or streetlight poles. The entity seeking to install telecommunications facilities in the City must first obtain an engineering permit from the Department of Public Service. Additionally, the City’s Design Review Committee (“DRC”) reviews and makes recommendations regarding the aesthetics of the facilities.

Crown Castle first argued that summary judgment in its favor was warranted because the undisputed facts reflect that the City has violated 47 U.S.C. § 253(a) by actually and effectively prohibiting Crown Castle from providing telecommunications services, and that the City has failed to act in a timely manner on Crown Castle’s 16 applications in violation of 47 U.S.C. § 332(c)(7). The court found that any arguments about the amount of time it took the City to enact the Small Cell Ordinance or about the franchise agreement were moot given that the City has passed the Small Cell Ordinance and entered into a franchise agreement with Crown Castle. However, Crown Castle’s arguments regarding its 16 applications on which the City has yet to act were not moot.

Crown Castle contended that the City has violated § 253(a) because its inaction constituted a de facto moratorium, which the FCC Declaratory Ruling found to be violative of § 253(a). The court noted that in order for the Declaratory Ruling to be binding on the district court, Crown Castle was required show that the Declaratory Ruling was equivalent to a legislative rule that had the force and effect of law. Here, Crown Castle failed to provide any examples of courts that have found a § 253(a) violation based on a de facto moratorium. Given the lack of argument on whether the FCC Declaratory Ruling was binding on this court and the lack of cases in which a court has found that a city violated § 253(a) by enacting a de facto moratorium, the court held that summary judgment was not warranted on the issue of whether the City has violated § 253(a) based on a de facto moratorium.

Crown Castle lastly argued that the City failed to act on its applications in a timely manner, in violation of 47 U.S.C. § 332(c)(7)(B)(ii). Crown Castle submitted the applications at issue here to use existing utility poles on April 15, 2019, April 22, 2019, May 6, 2019, and May 7, 2019. The record reflects that the City has not accepted or rejected these eleven applications, and the shot clock of 60 days has run. Crown Castle also submitted applications at issue here to use new poles on April 26, 2019, May 7, 2019, and May 8, 2019. The City has likewise not accepted or rejected these five applications, and the shot clock of 90 days has also clearly run. The court therefore found that there was no genuine issue of material fact as to whether the City has violated 47 U.S.C. § 332(c)(7)(B)(ii) and granted summary judgment in favor of Crown Castle. The City was given 90 days to act on Crown Castle’s sixteen pending applications.

Crown Castle Fiber, LLC v City of Charleston, 2020 WL 1330711 (D SC 3/23/2020)