4:21-cv-03032 Doc # 1 Filed: 02/03/21 Page 1 of 13 - Page ID # 1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`No. __________________
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`NEW CINGULAR WIRELESS PCS, LLC,
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`d/b/a AT&T MOBILITY,
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`Plaintiff,
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`vs.
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`THE VILLAGE OF
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`PALMYRA, NEBRASKA
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`Defendant.
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`__________________________________________)
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`COMPLAINT
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`This action arises out of the unlawful denial of Plaintiff’s Application For Conditional Use
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`Permit - Tower Development Permit (“Application”) for a wireless communications facility siting
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`request by the Board of Trustees of the Village of Palmyra, Nebraska (the “Board”). Plaintiff,
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`New Cingular Wireless PCS, LLC, d/b/a AT&T Mobility (“AT&T”), for its complaint alleges as
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`follows:
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`1.
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`The Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (the
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`“Telecommunications Act” or the “1996 Act”) preempts State and local decisions that “prohibit
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`or have the effect of prohibiting the provision of personal wireless services,” and requires that
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`State and local decisions denying requests to place personal wireless service facilities, such as cell
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`towers, be supported by substantial evidence contained in a written record. 47 U.S.C. §
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`332(c)(7)(B). The Board violated § 332(c)(7)(B) when it denied AT&T’s Application for
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`permission to construct a Three Hundred and Twenty Foot (320’) wireless communications guyed
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`tower along with ground equipment and fencing (the “Facility”) at 915 F Road, Palmyra, Nebraska
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`(the “Site”)1
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`2.
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`AT&T seeks to install the Facility at the Site in order to remedy a significant and
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`substantial gap in its personal wireless service coverage in the area. AT&T considered numerous
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`potential locations for the proposed Facility, but each of the alternatives proved infeasible.
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`AT&T’s proposal to place the Facility at the Site is the only feasible option for filing the significant
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`gap in coverage in the area.
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`3.
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`The Board’s denial of AT&T’s Application was not based on substantial evidence
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`contained in a written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii). In addition, the Board’s
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`denial prohibits or has the effect of prohibiting AT&T’s provision of personal wireless services,
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`in violation of 47 U.S.C. § 332(c)(7)(B)(i). AT&T thus seeks all appropriate relief pursuant to 47
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`U.S.C. § 332(c)(7)(B)(v).
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`THE PARTIES
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`4.
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`Plaintiff New Cingular Wireless PCS, LLC, d/b/a AT&T Mobility (referred to
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`hereinafter as “AT&T”) is a Delaware limited liability company certificated to conduct business
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`in the State of Nebraska and operates wireless communications facilities throughout the State.
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`New Cingular Wireless PCS, LLC, is indirectly wholly owned by AT&T Inc., which through its
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`operating subsidiaries provides wireless communication services nationwide.
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`5.
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` Defendant is a Village in Otoe County, Nebraska governed by a Board of Trustees
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`as provided under Neb. Rev. Stat. § 17-201 and 17-203.
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`1 West ½ of the SW ¼ of the SE ¼ of Section 26, T9N, R9E, Otoe County, NE Parcel ID 004037500.
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction over this action pursuant to (a) section
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`332(c)(7)(B)(v) of the Telecommunications Act because AT&T has been adversely affected and
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`aggrieved by the Board’s denial of its Application and (b) 28 U.S.C. § 1331 because this action
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`presents a federal question under the Telecommunications Act.
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`7.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Defendant
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`resides in this Judicial District and the events and/or omissions giving rise to AT&T’s claims arose
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`in this Judicial District.
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`FACTS
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`I. Background
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`8.
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`AT&T provides wireless voice and data products and services to customers
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`nationwide, including “personal wireless services” within the meaning of Section 332 of the
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`Telecommunications Act, 47 U.S.C. § 332 (c)(7)(c).
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`9.
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`The licenses authorizing AT&T to provide wireless service in the Village were
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`issued by the FCC pursuant to the Telecommunications Act of 1996, as amended (the “Act”)2 The
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`Act establishes a national policy to “make available, so far as possible, to all people of the United
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`States, without discrimination . . . a rapid, efficient, Nation-wide and worldwide wire and radio
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`communications service with adequate facilities at reasonable charges for the purposes of national
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`defense [and] for the purpose of promoting safety of life and property through the use of wire and
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`radio communications.” 47 U.S.C. § 151.
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`10.
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`From 2007 to 2019, the number of wireless users increased from more than 255
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`million to over 404 million.3 According to a 2019 National Health Interview Survey conducted by
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`2 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).
`3 CTIA 2019 Annual Survey Highlight and https://www.theglobaleconomy.com/, January, 2020.
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`the National Center for Health Statistics, 60.3% of American households were wireless only.4 At
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`present, the number of landline telephone subscribers across the nation is declining every year
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`while the number of wireless subscribers increases.5
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`11.
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`For many Americans, wireless devices have become an indispensable replacement
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`for traditional landline telephones. Even when Americans maintain both types of service, they are
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`opting increasingly to use wireless devices over their landline telephone. From 1996 to 2004,
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`Americans more than quadrupled their time spent talking on their cell phones while markedly
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`reducing the number of long distance and local calls made on traditional land lines. The number
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`of minutes wireless customers spent on their phone increased by 29% from 2018 to 2019 alone. In
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`2019, American wireless subscribers spent a total of 3.1 trillion minutes talking on the phone.6
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`12.
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`For Americans living in “wireless only” homes and working in “wireless only”
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`businesses, cell phones are their only lifeline in emergencies. Since 2006, the number of 9-1-1
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`calls made by people using wireless phones has grown from around 50 million a year to over 240
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`million annually. Industry experts estimate that approximately 80% of those 9-1-1 calls are placed
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`from cell phones and the percentage is growing.7
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`13.
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`To meet the policy goals established by Congress, and provide personal wireless
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`services to local businesses, public safety entities, and the general public, AT&T must consistently
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`update its technology, facilities, and network to keep up to date with customers’ ever-growing
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`demand for mobile services, including mobile data service and wireless phone coverage. Among
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`4 Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview
`Survey, July-December 2019. National Center for Health Statistics. September 2020. Available from:
`https://www.cdc.gov/nchs/nhis.htm.
`5 Id.
`6 https://www.statista.com/2020.
`7 CTIA 2019 Annual Survey Highlight.
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`other things, AT&T must create and maintain a network of “cell sites,” each of which consists of
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`antennas and related equipment designed to send and receive radio signals.
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`14. Wireless devices using all-digital technology operate by transmitting a radio signal
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`to antennas mounted on a tower, pole, building, or other structure. The antennas feed the signals
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`to electronic devices housed in a small equipment cabin or base station. The base station is
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`connected by microwave, fiber optic cable, or ordinary telephone wire to a base station controller
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`subsequently routing the calls throughout the world.
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`In order to provide reliable service to a user, coverage must overlap in a grid pattern
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`resembling a honeycomb. In order for the entire network to be operational, there must be properly
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`placed cell sites installed and functioning so that reliable coverage can be realized. Only when the
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`entire system is operational will a user have service and be able to partake in uninterrupted
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`conversations throughout a given territory. If there is no functioning cell site within a given area,
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`there would be no service for customers within that area and mobile customers who travel through
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`the area will experience an unacceptable level of dropped calls.
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`15. When there is a need to improve coverage in a specific area, AT&T’s engineers
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`produce a search ring, identifying the area within which a wireless facility of the necessary height
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`must be located or upgraded. The study takes into account the topography of the land, the coverage
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`boundaries of neighboring cells, and other factors. For low power signals such as the wireless
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`signals at issue here, there must be an unobstructed line of sight, thereby limiting the number of
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`adequate sites at which a wireless facility may be located.
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`II. AT&T’s Contract with FirstNet
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`16.
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`The First Responder Network Authority (“FirstNet Network”) of the United States
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`was created under the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRJCA) as an
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`independent
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`authority within
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`the National Telecommunications
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`and
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`Information
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`Administration (NTIA).8 The purpose of FirstNet Network is to establish, operate, and maintain
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`an interoperable public safety broadband network that equips first responders to save lives and
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`protect US communities9.
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`17.
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`On March 30, 2017, Commerce Secretary Wilbur Ross announced that AT&T was
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`awarded a twenty-five year contract to build and maintain the FirstNet network throughout the
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`nation In December 2017, all 50 states opted into FirstNet Network’s broadband network plan with
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`AT&T.
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`18.
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`The Facility is needed to help AT&T enhance its wireless coverage and capacity
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`for the FirstNet Network System in an area along US Highway 2 from Lincoln, Nebraska to
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`Nebraska City, Nebraska and is specifically designed for the proposed Site in Palmyra, Nebraska.
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`19.
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`AT&T has a significant gap in its wireless network coverage in the area along
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`Highway 2 between the eastern edge of Lincoln near Cheney extending eastward to the City of
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`Syracuse, Nebraska.
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`20.
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`Placing the proposed Facility at the Site would alleviate the significant gap in
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`AT&T’s wireless coverage along Highway 2. The Site is centrally located within the coverage
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`gap and is zoned where communications facilities are permitted under the Village of Palmyra
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`Zoning Ordinance (“Ordinance”).10
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`8 https://apps.fcc.gov/edocs_public/attachmatch/DOC-319266A1.pdf.
`9 Id.
`10 Village of Palmyra, Otoe County, Nebraska, Zoning Ordinance No. 427 (Feb. 7, 2002) (Ex. A).
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`21.
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`III. AT&T’S Application for the Facility
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`Under the Ordinance, telecommunications towers and facilities may be constructed
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`as a conditional use of land only in zoning districts specifically listed in the Ordinance11 The
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`Ordinance also requires the proposed tower to meet certain, minimum set-backs, separation and
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`buffer requirements and comply with certain landscaping, illumination and fencing requirements.12
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`22.
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`The Ordinance requires the Owner of the tower to submit an Application for a
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`Tower Development Permit to the Zoning Administrator for approval by the Planning Commission
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`and the Village Board and to pay a filing fee in accordance with the Section 4.23 of Ordinance.13
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`23.
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`24.
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`AT&T’s application demonstrated that it met all requirements in the Ordinance.
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`Further, AT&T demonstrated that the Facility would address the substantial and
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`significant gap in coverage in the area along Highway 2, east and west of Palmyra
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`25.
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`The search for an acceptable alternative site included researching any existing tall
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`structures (buildings, other towers, water towers) within one mile of the proposed location.
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`26. When attempting to remedy a gap in service coverage, AT&T seeks where possible
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`to co-locate its antenna facilities on existing towers or other existing suitable structures.
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`27.
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`In this situation, there is no existing tower or other tall structure upon which AT&T
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`could co-locate its facilities in order to remedy the coverage gap.
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`IV. Applications and Hearings Before the Planning Commission and Board
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`28.
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`On September 25, 2019, AT&T filed an Application for Zoning Permit with the
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`Zoning Administrator of the Village of Palmyra (the “Initial Application”).14
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`11 Id, p. 51.
`12 Id at Section 7.06 C-J.
`13 Id at Section 7.06(C)(1) and E.
`14 On Behalf of AT&T Mobility, Zoning Permit Proposal for Village of Palmyra, Nebraska, Sept. 25, 2019 (Ex. B).
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`29.
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`The Planning Commission recommended approval of the Initial Application on
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`October 16, 2019.15
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`30.
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`The Board met on November 14, 2019 and denied the Initial Application due to
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`failure to comply with setback requirements under the Ordinance.16
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`31.
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`On December 3, 2019 AT&T filed a request to the Planning Commission to amend
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`the Ordinance to permit a setback less than the height of the Tower. On December 30, 2019 the
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`Planning Commission recommended denial of the requested amendment to the Ordinance.17
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`32.
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`On February 13, 2020, the Board held a hearing on AT&T’s request for an
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`amendment to the setback provisions of the Ordinance (“the Amendment”). AT&T presented
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`evidence at this hearing that provided ample authority and precedent to approve the Amendment.18
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`33.
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`The Board also heard from a resident, who owned land adjacent to the Site, and his
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`counsel, who objected to the Amendment on the grounds that the failure of the Tower to meet
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`existing setbacks would adversely affect the resident’s future residential development of his
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`adjoining property. The Board then voted to deny the proposed Amendment based on the
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`objections of the opposing land owner. 19
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`34.
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`On April 8, 2020 AT&T filed a new Application for Zoning Permit for a Tower of
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`320 feet, reduced from 400 feet in the Initial Application, but located on the same Site, and on
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`April 16, 2020 filed an Application for Conditional Use Permit/Tower Development Permit
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`(collectively the “Second Application”) with the Zoning Administrator of the Village of Palmyra.
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`15 Minutes of the Village of Palmyra, Nebraska Planning and Zoning Commission Regular Meeting, Oct. 16, 2019
`(Ex. C).
`16 Minutes of the Board of Trustees of the Village of Palmyra, Nebraska, Regular Meeting, Nov. 14, 2019 (Ex. D).
`17 Minutes of the Village of Palmyra, Nebraska Planning and Zoning Commission, Public Hearing, Dec. 30, 2019
`(Ex. E).
`18 Minutes of the Board of Trustees of the Village of Palmyra, Nebraska, Regular Meeting, Feb. 13, 2020 (Ex. F).
`19 Id
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`The Tower location was shifted approximately 65 feet to the northeast to accommodate the existing
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`setback rules in the Ordinance.
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`35.
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`The Planning Commission approved the Second Application at a virtual meeting
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`on June 4, 2020, where the adjacent land owner objected both to the Second Application and to
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`alleged inadequate notice of the meeting, both of which objections were rejected by the Planning
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`Commission.20
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`36.
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`On July 9, 2020, the Board tabled further discussion of Second Application due to
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`the absence of the Village Attorney due to National Guard duties. The opposing land owner,
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`through counsel, argued that (i) no towers should be permitted in the Transition Ag Zoning District,
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`(ii) the Tower would have adverse effect on future development of surrounding property, (iii) the
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`proposed tower should be moved to another Site, (iv) the Tower would have adverse effect on
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`drainage on adjoining land, and (v) the Tower would not financially benefit the Village of
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`Palmyra.21
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`37.
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`On August 13, 2020 the Board reconvened to consider the Second Application.
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`AT&T presented evidence that contradicted each of the issues raised by the opposing land owner.
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`The Board voted to table the matter until the next month’s meeting.22
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`38.
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`On September 10, 2020 the Board met again to discuss the Second Application.
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`Additional evidence was presented by AT&T supporting the Second Application and the adjacent
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`land owner once again, through counsel, opposed the Second Application, but only on the basis of
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`its site location.23 On a motion to approve the Application, the motion was defeated.24
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`20 Minutes of the Village of Palmyra, Nebraska Planning and Zoning Commission Public Hearing and Regular
`Meeting, June 4, 2020 (Ex. G).
`21 Minutes of the Board of Trustees of the Village of Palmyra, Nebraska, Regular Meeting, July 9, 2020 (Ex. H).
`22 Minutes of the Board of Trustees of the Village of Palmyra, Nebraska, Regular Meeting, Aug. 13, 2020 (Ex. I).
`23 Minutes of the Board of Trustees of the Village of Palmyra, Nebraska, Public Hearings and Regular Meeting,
`Sept. 10, 2020 (Ex. J).
`24 Id.
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`39.
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`At all Board Meetings from and after September 10, 2020, consideration of the
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`Minutes of the September 10, 2020 meeting was waived at the request of the Village Attorney
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`while AT&T initiated discussions regarding the reconsideration of the Second Application.25
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`40.
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`On January 14, 2021, the Board approved the Minutes of its September 10, 2020
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`meeting denying the Second Application, even though all objections to the Second Application
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`had been refuted by AT&T (the “Denial”). Attached hereto as Exhibit K is a true and correct copy
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`of the Board’s final decision denying Plaintiff’s Application for the Conditional Use Permit -
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`Tower Development Permit (“Permit”).
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`COUNT I
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`(The Federal Telecommunications Act of 1996,
`47 U.S.C. § 332(c)(7) - Substantial Evidence)
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`AT&T incorporates by reference the allegations in each of the paragraphs set forth
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`41.
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`above.
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`42.
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`Although the 1996 Act preserves local zoning authority over the siting of wireless
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`facilities, 47 U.S.C. § 332(c)(7)(A), “the method by which siting decisions are made is now subject
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`to judicial oversight.” Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir. 1999).
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`“Therefore, denials subject to the Act are reviewed by a court more closely” than other zoning
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`decisions. Id. Among other things, “[i]f a [municipal] decision is not supported by substantial
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`evidence, § 332(c)(7)(B)(iii), or if it effectively prohibits the provision of wireless service, §
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`332(c)(7)(B)(i)(II), then under the Supremacy Clause of the Constitution, local law is pre-empted
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`in order to effectuate the Act’s national policy goals.” Second Generation Props. L.P. v. Town of
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`Pelham, 313 F.3d 620, 627 (1st Cir. 2002).
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`25 Actions at any board meeting do not become final until the minutes of such meeting are approved at a subsequent
`meeting of the board.
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`43.
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`Pursuant to 47 U.S.C. § 332(c)(7)(B)(iii), “[a]ny decision by a State or local
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`government or instrumentality thereof to deny a request to place, construct, or modify personal
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`wireless service facilities shall be in writing and supported by substantial evidence contained in a
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`written record.”
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`44.
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`The Board’s Denial the Second Application violates 47 U.S.C. § 332(c)(7)(B)(iii)
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`because it is not supported by substantial evidence in a written record. The record does not contain
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`substantial evidence to justify the Denial of the Second Application by the Board on January 14,
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`2021.
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`45.
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`46.
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`The Board’s Denial has caused and will continue to cause AT&T irreparable harm.
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`AT&T is entitled to relief under the Telecommunications Act ordering the Board
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`to approve the Second Application
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`COUNT II
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`(The Federal Telecommunications Act of 1996,
`47 U.S.C. § 332(c)(7) - Effective Prohibition)
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`AT&T incorporates here by reference the allegations in each of the paragraphs
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`47.
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`above.
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`48.
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`Local authority over zoning and land use matters cannot be used to “prohibit or
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`have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. §
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`332(c)(7)(B)(i)(II).
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`49.
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`The Telecommunications Act requires local zoning authorities to allow carriers to
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`fill significant gaps in the coverage of their wireless networks.
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`50.
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`AT&T has a significant and substantial gap in its wireless network coverage and
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`provision of personal wireless services in the Village of Palmyra, Nebraska.
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`51.
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`AT&T’s proposed Facility at the Site represents the only feasible and least intrusive
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`means of remedying AT&T’s significant gap in its personal wireless services coverage.
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`52.
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`The Board’s Denial of the Second Application violates Section 332(c)(7)(B)(i).
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`The Denial of AT&T’s Second Application has the effect of prohibiting the provision of personal
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`wireless service in the relevant area.
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`53.
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`54.
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`The Board’s Denial has caused and will continue to cause AT&T irreparable harm.
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`AT&T is entitled to relief under the Telecommunications Act ordering the Board
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`to approve the Second Application and issue the Tower Development Permit and any other permits
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`required to install, operate, and maintain the Facility.
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`PRAYER FOR RELIEF
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`WHEREFORE, AT&T respectfully prays that this Court grant it relief as follows:
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`1.
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`Permit expedited review of the matters set forth in this Complaint as required by 47
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`U.S.C. § 332(c)(7)(B)(v);
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`2.
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`Enter an order declaring that the Board’s Denial violates and is preempted by 47
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`U.S.C. § 332(c)(7);
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`3.
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`Enter an order requiring the Board to approve AT&T’s Second Application and
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`authorize AT&T to install its proposed Facility at the Site and to issue all other permits required
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`to install, operate, and maintain the Facility; and
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`4.
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`Order such other relief as the Court deems appropriate.
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`Dated: February 3, 2021
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`Respectfully submitted,
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`NEW CINGULAR WIRELESS PCS, LLC,
`d/b/a AT&T MOBILITY
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`s/ Loel P. Brooks
`Bar #15352
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`Brooks, Pansing Brooks, PC, LLO
`1248 O Street, Suite 984
`Lincoln, Nebraska 68508
`(402) 476-3300
`(402) 476-6368
`lbrooks@brookspanlaw.com
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`ATTORNEY FOR PLAINTIFF
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