Case 3:20-cv-08139-SI Document 44 Filed 03/18/21 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`T-MOBILE WEST LLC,
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`Plaintiff,
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`v.
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`THE CITY AND COUNTY OF SAN
`FRANCISCO, et al.,
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`Case No. 20-cv-08139-SI
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`ORDER GRANTING IN PART
`PLAINTIFF’S MOTION FOR
`SUMMARY JUDGMENT; GRANTING
`IN PART PLAINTIFF’S MOTION FOR
`PRELIMINARY INJUNCTION
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`Defendants.
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`Re: Dkt. Nos. 29, 31
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`
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`On March 12, 2021, this Court heard oral argument on motions by plaintiff T-Mobile West
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`LLC (“T-Mobile”) for summary judgment and preliminary injunction. For the reasons stated below,
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`the Court GRANTS IN PART T-Mobile’s motion for summary judgment and GRANTS IN PART
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`T-Mobile’s motion for preliminary injunction.
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`The Spectrum Act and Related Regulations
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`BACKGROUND
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`Under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012
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`I.
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`(“Spectrum Act”), “[a] State or local government may not deny, and shall approve, any eligible
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`facilities request for a modification of an existing wireless tower or base station that does not
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`substantially change the physical dimensions of such tower or base station.” 47 U.S.C. § 1455.
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`Local governments must approve eligible facilities requests within 60 days of submission. 47 C.F.R.
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`§ 1.6100(c)(2). The 60-day period may only be tolled either by mutual agreement between the local
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`government and applicant or if the local government determines that the application is incomplete.
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`47 C.F.R. § 1.6100(c)(3). If a local government fails to timely approve or deny an eligible facilities
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`request within the 60-day period, “the eligible facilities request shall be deemed granted. The
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`Case 3:20-cv-08139-SI Document 44 Filed 03/18/21 Page 2 of 9
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`deemed grant does not become effective until the applicant notifies the applicable reviewing
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`authority in writing after the review period has expired (accounting for any tolling).” 47 C.F.R.
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`§ 1.6100(c)(4). Applicants subject to adverse decisions by local governments may bring claims
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`related to this process in any court of competent jurisdiction within 30 days of such decision. 47
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`U.S.C. § 332(c)(7)(B)(5); 47 C.F.R. § 1.6100(c)(5).
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`On October 21, 2014, the Federal Communications Commission (“FCC”) issued an order
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`adopting rules to implement and enforce the Spectrum Act. In the Matter of Acceleration of
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`Broadband Deployment by Improving Wireless Facilities Siting Policies, FCC 14-153 (“FCC
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`Order”) ¶ 15. According to the FCC Order, the Spectrum Act reflected Congress’s goal of
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`“facilitate[ing] the rapid deployment of wireless infrastructure and promot[ing] advanced wireless
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`broadband services.” Id. ¶ 204.
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`II.
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`Factual Background
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`T-Mobile provides wireless telecommunications services throughout the United States.
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`Wheeler Decl. ¶ 4. In San Francisco, T-Mobile utilizes a network of “cell sites” to provide
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`telecommunications services. Id. ¶ 6. The cell sites require regular maintenance, such as adding or
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`modifying antennas and other technology equipment, to provide services and increase coverage,
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`capacity, and reliability. Id. ¶¶ 8-13, 18.
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`T-Mobile must obtain permits from the City and County of San Francisco and the City and
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`County of San Francisco Department of Building Inspection (collectively, “defendants”) to install
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`or modify T-Mobile’s cell sites and wireless facilities. Dkt. No. 36 at 2. Therefore, in 2020, T-
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`Mobile submitted Eligible Facilities Applications to defendants for the purpose of upgrading its cell
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`sites for more reliable cell towers. Kmetz Decl. ¶ 4.
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`On October 20, 2020, T-Mobile notified defendants that defendants failed to approve 27 of
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`T-Mobile’s applications and, pursuant to 47 C.F.R. § 1.1600, the 27 applications are “deemed
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`granted.” Id. ¶ 8. After T-Mobile’s October notification, defendants continued to review for
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`approval 19 of the 27 applications. Id. ¶ 9. On November 3, 2020, T-Mobile notified defendants
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`that defendants failed to approve an application and, pursuant to 47 C.F.R. § 1.1600, the application
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`Case 3:20-cv-08139-SI Document 44 Filed 03/18/21 Page 3 of 9
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`is “deemed granted.” Id. ¶ 12. Defendants have not acted on this application. Id. Finally, on
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`December 28, 2020, T-Mobile notified defendants that defendants failed to approve 6 of T-Mobile’s
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`applications and, pursuant to 47 C.F.R. § 1.1600, the 6 applications are “deemed granted.” Id. ¶ 13.
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`In 2020, T-Mobile submitted a total of 81 Eligible Facilities Applications. Kmetz Decl. ¶ 4.
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`At the filing of this action, defendants granted 47 of T-Mobile’s applications. Id. ¶ 14. Of the 47
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`approved applications, defendants issued permits for 11 of T-Mobile’s applications within 60 days
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`of the application’s submission. Id. For the applications where defendants failed to take action
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`within 60 days of T-Mobile’s submission, T-Mobile notified defendants in writing that T-Mobile’s
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`applications are deemed granted pursuant to 47 U.S.C. § 1455(a) and 47 C.F.R. § 1.1600. Id. ¶¶ 10-
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`13. T-Mobile currently has 34 pending applications with defendants. Id. ¶ 15.
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`On February 2, 2021, T-Mobile filed a motion for summary judgment and motion for
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`preliminary injunction.1 Dkt. Nos. 29, 31. T-Mobile argues that defendants violated the Spectrum
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`Act by failing to timely approve T-Mobile’s applications. Dkt. No. 29 at 1-2. T-Mobile requests
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`an order from the Court that (1) as a matter of law, defendants are required to issue permits for
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`Eligible Facilities Request applications after T-Mobile issued the deemed granted notice and (2) as
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`a matter of law, defendants are required to approve T-Mobile’s pending and future Eligible Facilities
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`Request applications within 60 days of submission. Dkt. No. 29 at 3. T-Mobile also requests a
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`preliminary injunction ordering defendants to issue T-Mobile permits for T-Mobile’s 14 pending
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`applications. Dkt. No. 31 at 1.
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`I.
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`Summary Judgment
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`LEGAL STANDARD
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`Summary judgment is proper where the pleadings, discovery, and affidavits show that there
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`is “no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as
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`a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the initial burden of demonstrating
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`1 T-Mobile filed a request for judicial notice of court documents in support of T-Mobile’s
`motions for summary judgment and preliminary injunction. Dkt. No. 39. Defendants did not submit
`an opposition. Accordingly, the Court GRANTS T-Mobile’s request for judicial notice.
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`Case 3:20-cv-08139-SI Document 44 Filed 03/18/21 Page 4 of 9
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`the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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`The moving party need only demonstrate to the Court that there is an absence of evidence to support
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`the non-moving party's case. Id. at 325.
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`Once the moving party has met its burden, the burden shifts to the nonmoving party to “set
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`forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine
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`issue for trial.’” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
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`1987) (citing Celotex, 477 U.S. at 324). To carry this burden, the non-moving party must “do more
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`than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
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`Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla
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`of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find
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`for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
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`The court's function on a summary judgment motion is neither to make credibility
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`determinations nor to weigh conflicting evidence with respect to a disputed material fact. See T.W.
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`Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In deciding a
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`summary judgment motion, the Court must view the evidence in the light most favorable to the non-
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`moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255.
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`II.
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`Preliminary Injunction
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`To obtain a preliminary injunction, plaintiffs must establish: (1) they are likely to succeed
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`on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3)
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`the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v.
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`Natural Resources Defense Council, Inc., 555 U.S. 7, 20, (2008) (citations omitted).
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`As an alternative avenue to a preliminary injunction, the Ninth Circuit has held that “serious
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`questions going to the merits and a hardship balance that tips sharply toward the plaintiff can [also]
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`support issuance of an injunction, assuming the other two elements of the Winter test are also met.”
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`Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir.2011). “Serious questions”
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`refers to questions “which cannot be resolved one way or the other at the hearing on the injunction
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`and as to which the court perceives a need to preserve the status quo lest one side prevent resolution
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`Case 3:20-cv-08139-SI Document 44 Filed 03/18/21 Page 5 of 9
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`of the questions or execution of any judgment by altering the status quo.” Gilder v. PGA Tour, Inc.,
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`936 F.2d 417, 422 (9th Cir.1991).
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`T-Mobile’s Motion for Summary Judgment
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`DISCUSSION
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`T-Mobile argues that the Spectrum Act requires defendants to issue permits for T-Mobile’s
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`I.
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`deemed granted applications. Dkt. No. 29 at 14-24. Defendants argue the Spectrum Act violates
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`Tenth Amendment’s anticommandeering doctrine because “the Constitution ‘confers upon
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`Congress the power to regulate individuals, not states.’” Dkt. No. 36 at 6-7. Defendants do not
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`oppose “a judicial declaration that [T-Mobile’s] deemed granted notices are effective.” Id. at 8.
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`However, defendants assert that the Spectrum Act does not create a duty for local government to
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`affirmatively issue permits for deemed granted applications. Id.
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`A.
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`Tenth Amendment’s Anticommandeering Doctrine
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`Defendants argue that the Spectrum Act violates the Tenth Amendment anticommandeering
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`doctrine because Congress may only regulate individuals, not states. Dkt. No. 26 at 5-6. T-Mobile
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`argues that the Spectrum Act does not require defendants to enact or administer a federal regulatory
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`scheme and defendants are estopped from raising their Tenth Amendment argument. Dkt. No. 38
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`at 4-7.
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`The anticommandeering doctrine reflects the Constitution’s “decision to withhold from
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`Congress the power to issue orders directly to the States.” Murphy v. Nat. Collegiate Athletic Ass’n.,
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`138 S.Ct. 1461, 1475 (2018). “[T]he Federal Government may not compel the States to implement,
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`by legislation or executive action, federal regulatory programs.” United States v. California, 921
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`F.3d 865, 888 (9th Cir. 2019) (citing Printz v. United States, 521 U.S. 898, 925 (1997). In Murphy,
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`the Supreme Court held that the anticommandeering doctrine prohibits federal statutes that
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`“commanded state legislatures to enact or refrain from enacting state law.” See Murphy, 138 S.Ct.
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`at 1478.
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`The Spectrum Act states, in relevant part, “a State or local government may not deny, and
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`shall approve, any eligible facilities request for a modification of an existing wireless tower or base
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`station that does not substantially change the physical dimensions of such tower or base station.”
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`47 U.S.C. § 1455(a). Although the statute regulates a state’s review of eligible facilities requests,
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`Congress may “establish requirements for continued state activity” because “there is nothing
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`unconstitutional about Congress’ requiring certain procedural minima as [a state] body goes about
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`undertaking [Congress’s] tasks.” F.E.R.C. v. Mississippi, 456 U.S. 742. 769-772 (1982). Moreover,
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`the Spectrum Act does not direct local government to enact or refrain from enacting regulations
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`regarding modifications to wireless towers or base stations. Compare Reno v. Condon 528 U.S. 141,
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`145 (2000) (finding no anticommandeering doctrine violation where federal law restricted
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`disclosure and dissemination of personal information in applications for driver’s licenses) with
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`Murphy, 138 S.Ct. at 1478 (finding violation of anticommandeering doctrine because provision
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`“unequivocally dictates what a state legislature may or may not do . . . as if federal officers were
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`installed in state legislative chambers and were armed with the authority to stop legislators from
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`voting on any offending proposals.”). Accordingly, the Court finds that the Spectrum Act does not
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`violate the anticommandeering doctrine. Given the Court’s ruling, the Court declines to rule on
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`whether defendants are estopped from asserting its Tenth Amendment argument.
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`B.
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`The Spectrum Act
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`Defendants argue that the Spectrum Act does not impose affirmative obligations on
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`defendants to issue permits for T-Mobile’s applications. Dkt. No. 36 at 9-13.
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`The FCC’s Order on the Spectrum Act established “a deemed granted remedy for cases in
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`which . . . [a] municipal reviewing authority fails to issue a decision within 60 days (subject to any
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`tolling[]) on an application submitted pursuant to the Spectrum Act.” In the Matter of Acceleration
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`of Broadband Deployment by Improving Wireless Facilities Siting Policies, FCC 14-153 (“the
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`Order”) ¶ 226. The FCC Spectrum Act only prohibits State or local governments from denying
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`qualifying applications. Id. at ¶ 227. The FCC Order stated,
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`[T]he deemed granted approach does not deprive States and localities
`of the opportunity to determine whether an application is covered;
`rather, it provides a remedy for a failure to act within the fixed but
`substantial time period within which they must determine, on a non-
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`Id. at ¶ 232.
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`discretionary and objective basis, whether an application fits within
`the parameters of Section 6409(a).
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`In Montgomery, the Fourth Circuit, in holding that the “deemed granted” remedy established
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`by the FCC’s Order on the Spectrum Act did not violate the Tenth Amendment, the Fourth Circuit
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`stated,
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`As a practical matter, the [FCC] Order . . . does not require the states
`to take any action at all, because the “deemed granted” remedy
`obviates
`the need for
`the states
`to affirmatively approve
`applications. Instead, the “deemed granted” procedure allows the
`applications to be granted by default if the state does not affirmatively
`approve them within sixty days. As the FCC points out in its Order,
`the point of the “deemed granted” provision is to ensure that
`collocation applications are not mired in the type of protracted
`approval processes that the Spectrum Act was designed to avoid . . .
`Moreover, the “deemed granted” procedure provides a remedy to
`ensure that states do not circumvent statutory requirements by failing
`to act upon applications. [] The purpose and effect of Section 6409(a)
`is to bar states from interfering with the expansion of wireless
`networks. To achieve that end, the Act preempts local regulation of
`collocations and bars states from denying facility modification
`applications that meet certain standards.
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`Montgomery County, MD. v. F.C.C., 811 F.3d 121, 128 (4th Cir. 2015) (emphasis added).
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`Accordingly, the Court GRANTS IN PART plaintiff’s request for summary judgment. The
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`Court holds that T-Mobile’s deemed granted applications are now to be treated as granted in
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`accordance with under the Spectrum Act. Therefore, T-Mobile’s installations pursuant to T-
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`Mobile’s granted applications are and shall be treated as legal by defendants herein. See id. at 129
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`(explaining the Spectrum Act’s deemed granted remedy “preempt[s] state regulation of wireless
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`towers” and “permits applicants to initiate a declaratory judgment action to seek some form of
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`judicial imprimatur for an application that has been deemed granted.”).
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`II.
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`Plaintiff’s Motion for Preliminary Injunction
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`T-Mobile filed a motion for preliminary injunction requesting the Court order defendants to
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`issue permits for T-Mobile’s pending Eligible Facilities Request applications that have been deemed
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`granted under the Spectrum Act. Dkt. No. 31 at 1. Defendants argue that T-Mobile is not entitled
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`to an order that requires defendants to affirmatively issue permits. Dkt. No. 36 at 13. Defendants
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`also argue that T-Mobile has failed to demonstrate that it will suffer any harm if an injunction is not
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`issued because T-Mobile could begin modifications for the cell sites with deemed granted
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`applications. Id. at 14.
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`The Spectrum Act’s “provides a remedy for a [State’s or locality’s] failure to act within the
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`fixed but substantial time period within which they must determine, on a non-discretionary and
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`objective basis, whether an application fits within the parameters of [the Spectrum Act]. ” In the
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`Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies,
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`FCC 14-153 (“FCC Order”) ¶ 232. Because of “the importance of expeditious action with regard
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`to the application process and infrastructure deployment,” a party may request a court “for an
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`injunction granting the application.” Id. ¶ 284.
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`The FCC Order stated that injunctive relief depends on “the specific facts of individual
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`applications,” and that it “may be appropriate in many cases in light of the balance of equities,
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`including the public interest reflected in the statute of promoting rapid but responsible wireless
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`facility deployment.” Id. “Moreover, in the case of a failure to act within the reasonable timeframes
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`. . . and absent some compelling need for additional time to review the application, [the FCC]
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`believe[s] that it would also be appropriate for the courts to treat such circumstances as significant
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`factors weighing in favor of such relief.” Id.
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`T-Mobile demonstrated likelihood of success on the merits of their claim that defendants
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`violated the Spectrum act by failing to act on T-Mobile’s application. See Dkt. No. 30-21 (Ex. U)
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`(identifying each of T-Mobile’s applications with application and missing approval dates). During
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`the March 12, 2021 hearing, T-Mobile indicated that it would suffer harm without injunctive relief
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`if defendants prevent T-Mobile from making installations or modifications pursuant to T-Mobile’s
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`deemed granted applications. Because the Spectrum Act’s “deemed granted remedy obviates the
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`need for the states to affirmatively approve applications,” the Court narrows the scope of injunctive
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`relief. Such relief will serve the public’s interest in “promoting rapid but reasonable wireless facility
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`deployment.” FCC Order ¶ 284.
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`Accordingly, the Court GRANTS T-Mobile’s motion for injunctive relief, as follows: (1)
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`the deemed granted applications are in law as effective as granted applications; and (2) defendants
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`the City and County of San Francisco and the City and County of San Francisco Department of
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`Building Inspection are estopped from imposing penalties or in any way preventing T-Mobile from
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`proceeding with installations for T-Mobile’s deemed granted applications.
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`IT IS SO ORDERED.
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`Dated: March 19, 2021
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`______________________________________
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`SUSAN ILLSTON
`United States District Judge
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