Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 1 of 11
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`Douglas W. Sullivan (OSB # 174733)
` Douglas@dwsullivanlaw.com
`DOUGLAS W. SULLIVAN LAW OFFICE
`61672 Hosmer Lake Dr.
`Bend, OR 97702
`Telephone: 415.302.6438
`
`Thomas F. Koegel (CSB # 125852) (Pro Hac Vice to be filed)
` TKoegel@crowell.com
`Kimberley Johnson (CSB # 317757) (Pro Hac Vice to be filed)
` KJohnson@crowell.com
`CROWELL & MORING LLP
`3 Embarcadero Center, 26th Floor
`San Francisco, CA 94111
`Telephone: 415.986.2800
`
`Raymond P. Bolaños (CSB # 142069) (Pro Hac Vice to be filed)
` Rb2659@att.com
`AT&T SERVICES, INC.
`Legal Department
`430 Bush Street, 6th Floor
`San Francisco, CA 94108
`Telephone: 415.268.9491
`
`Attorneys for Plaintiff
`New Cingular Wireless PCS, LLC d/b/a AT&T Mobility
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`EUGENE DIVISION
`
`NEW CINGULAR WIRELESS PCS, LLC,
`D/B/A AT&T MOBILITY, a Delaware
`limited liability company,
`
`Case No.:
`
`v.
`
`CITY OF CORVALLIS, an Oregon
`municipal corporation,
`
`Defendant.
`
`Plaintiff,
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`AND
`
`REQUEST FOR EXPEDITED REVIEW
`PURSUANT TO 47 U.S.C.
`§ 332(c)(7)(B)(v)
`
`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
`
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 2 of 11
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`Plaintiff New Cingular Wireless PCS, LLC, d/b/a AT&T Mobility (“AT&T”), a limited
`liability company organized and existing under the laws of Delaware, complains against
`Defendant City of Corvallis, Oregon (the “City”) and alleges as follows:
`INTRODUCTION
`AT&T has been attempting to place “small cell” wireless facilities (i.e., small
`1.
`antennas and related equipment) on poles in the City’s rights-of-way, to provide and improve
`wireless services in the City. 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, as set forth herein.
`JURISDICTION AND VENUE
`This action arises under the laws of the United States, including the
`2.
`Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C.
`§§ 253 and 332. This Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331
`(federal question) and 1337 (commerce). The Court’s authority to grant declaratory relief and
`related injunctive relief is based upon 28 U.S.C. §§ 2201-2202 because an actual controversy
`exists.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because AT&T’s
`3.
`claims stated herein arose in this judicial district.
`INTRADISTRICT ASSIGNMENT
`Assignment to the Eugene Division of this Court is appropriate pursuant to Local
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`Rule, in that the events that give rise to the claims asserted herein occurred in the County of
`Benton.
`
`PARTIES
`Plaintiff AT&T is a limited liability company duly organized, existing, and
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`operating under the laws of Delaware, with its principal place of business in Atlanta, Georgia,
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 3 of 11
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`with offices at locations in Oregon. At all times relevant herein, AT&T has been and is qualified
`to do business in Oregon.
`Defendant City of Corvallis is an Oregon municipal corporation organized and
`6.
`existing under the laws of the State of Oregon.
`LEGAL AND FACTUAL BACKGROUND
`Under the federal Communications Act of 1934 as amended by the
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`Telecommunications Act of 1996 (the “Act”), municipalities must act upon applications to place
`wireless facilities within a “reasonable period of time” (47 U.S.C. § 332(c)(7)(B)(ii)); local
`regulation may not “prohibit or have the effect of prohibiting the ability” of a carrier to provide
`telecommunications services (47 U.S.C. § 253(a)); and local regulation of the placement of
`wireless facilities “shall not prohibit or have the effect of prohibiting the provision of personal
`wireless services” (47 U.S.C. § 332(c)(7)(B)(i)(II)). The Federal Communications Commission
`(“FCC”) has promulgated orders interpreting and implementing Sections 253 and 332 of the Act,
`which include specification of reasonable periods of time under Section 332 and identification of
`the type of local action, or inaction, that may unlawfully prohibit service.
`AT&T builds, owns, and operates personal wireless service facilities to provide
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`wireless services to consumers, enterprise customers and public safety agencies, among others.
`One type of personal wireless facility that AT&T constructs for providing wireless services are
`“small cells,” which typically consist of short, unintrusive antennas and supporting equipment
`attached to utility poles and other structures in public rights-of-way and which assist in providing
`coverage for wireless service.
`In 2020, AT&T has been in the process of negotiating with the City for a master
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`Right-of-Way Use License Agreement (“MLA”) that would govern AT&T’s installation of small
`cell facilities on utility poles in the public right-of-way. However, the City’s proposed MLA
`incorporates a schedule of fees, which would be charged in connection with applications for
`installation of small cell facilities in the City, and which are excessive and violate federal law.
`As a result, AT&T has been unwilling to sign the City’s proposed MLA.
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Instead, on August 14, 2020, AT&T filed a complete Small Cell Site Application
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`on the City’s form (the “Application”), to obtain all necessary permits and approvals to replace
`an existing pole in the public right of way at 2920 SW Western Blvd, Corvallis, OR 97333, and
`to install a small cell facility on the new pole (the “Proposed Facility”). Thereafter, in response to
`the Application, the City advised AT&T that it would have to sign and submit the City’s
`proposed MLA before the City would act on AT&T’s Application, which AT&T is unwilling to
`do because the MLA contains excessive and illegal fees.
`On September 27, 2018, the FCC released its “Small Cell Order,” In the Matter of
`11.
`Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure
`Investment, 33 FCC Rcd. 9088. In that order, the FCC, among other things, implemented Section
`332’s requirement that localities act upon wireless siting applications within a “reasonable period
`of time” by specifying the presumptive maximum timeframes for small cell applications. In
`particular, the FCC established a “shot clock” of 60 days for applications seeking to collocate
`small cells on existing structures (such as an existing utility pole), or to replace those existing
`structures. 47 C.F.R. § 1.6003(c)(1)(i) & (iii); Small Cell Order, ¶¶ 13, 105.
`The shot clock timeframe applies “to all authorizations a locality may require,
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`and to all aspects of and steps in the siting process, including license or franchise agreements
`to access ROW, building permits, public notices and meetings, lease negotiations, electric
`permits, road closure permits, aesthetic approvals, and other authorizations needed for
`deployment.” Id. at ¶ 132 (emphases added); see also id. at ¶ 144 (“All of these permits are
`subject to Section 332’s requirement to act within a reasonable period of time, and thus all are
`subject to the shot clocks we adopt or codify here”).
`In the Small Cell Order, the FCC also promulgated standards for cost-based pole
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`attachment rates and other fees that may be charged in connection with small cell applications
`and installations. The rates and fees must represent a reasonable approximation of a local
`government’s objectively reasonable costs of, respectively, maintaining the right-of-way,
`maintaining a structure within the right-of-way, or processing an application or permit, and be
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 5 of 11
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`non-discriminatory. Small Cell Order, ¶¶ 32, 50, 69, 72. The FCC provided safe harbor
`presumptive maximum application fees and attachment rates, and concluded that excessive fees,
`including requiring in-kind services or other quid pro quos, constitute an unlawful, effective
`prohibition of service.
`The Small Cell Order set presumptively reasonable annual recurring right of way
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`access fees that may be charged by state or municipal agencies at $270 for each small cell pole
`attachment, and recognized $500 as the presumptively reasonable application fee for an initial
`batched application of up to five (5) small cell pole attachments.
`In contrast to the presumptively reasonable fees promulgated by the FCC, the City
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`seeks to apply, as part of the MLA, the following fees associated with installation of small cell
`facilities in the City, all of which violate the Small Cell Order:
`7% of Gross Revenue. The City seeks to charge, as part of the MLA, 7% of
`a.
`all gross revenue earned by the applicant within the City. The City’s insistence on assessing
`such a fee amounts to the violation of federal law.
` Annual Recurring Fee. The City seeks to charge, as part of the MLA, an
`b.
`Annual Recurring Fee of $728.16 for each small cell facility attached to any pole or
`structure in the right-of-way.
`Quarterly License Fee. The City seeks to charge for entering into an MLA
`c.
`with the City for installation of small cell facilities, a licensee fee of $786.68 per quarter,
`or $3,146.72 per year.
`Site Application Fee. The City seeks to charge, as part of the MLA, a Site
`d.
`License Application Fee of $1,241.12 per application.
`The Small Cell Order shot clock for the Application expired on October 13, 2020,
`16.
`yet the City has taken no action on the Application. The shot clock on the Application has not
`been tolled.
`AT&T is informed and believes that the City’s failure to appropriately act on the
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`Application and grant AT&T all permits and approval necessary for construction of the Proposed
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Facility, is based on AT&T’s refusal to agree in the MLA to pay to the City the above-listed
`inappropriate and illegal fees.
`As set forth below, the City’s acts and inaction violate federal law.
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`FIRST CLAIM FOR RELIEF
`(Unreasonable Delay and Shot Clock Violation)
`(47 U.S.C. § 332(c)(7)(B)(ii); 47 C.F.R. § 1.6003)
`
`AT&T hereby incorporates by reference the allegations of paragraphs 1 through
`19.
`18, inclusive, as though fully set forth herein.
`The Act requires the City to act upon AT&T’s Application for the Proposed
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`Facility within a “reasonable period of time.” 47 U.S.C. § 332(c)(7)(B)(ii).
`The City failed to act within a reasonable period of time upon the Application.
`21.
`22.
`The City violated 47 U.S.C. § 332(c)(7)(B)(ii), as implemented by 47 C.F.R. §
`1.6003 and the FCC’s Small Cell Order, by failing to approve or deny the Application submitted
`on August 14, 2020, by October 13, 2020.
`The City violated 47 U.S.C. § 332(c)(7)(B)(ii) by unreasonably delaying approval
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`of reasonable and lawful license terms for the installation of small cell facilities on poles located
`in the City right-of ways.
`AT&T will suffer imminent irreparable harm if the City continues to violate the
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`law and delay processing AT&T’s small cell applications and executing an MLA. Further, the
`entry of an injunction will serve the public interest by preserving the purpose of the
`Telecommunications Act to “encourage the rapid deployment of new telecommunications
`technologies.” Telecommunications Act of 1996, 110 Stat. 56.
`25. WHEREFORE, AT&T prays for judgment as set forth below.
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`///
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`///
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 7 of 11
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`SECOND CLAIM FOR RELIEF
`(Effective Prohibition)
`(47 U.S.C. § 332(c)(7)(B)(i)(II))
`
`AT&T hereby incorporates by reference the allegations of paragraphs 1 through
`26.
`25, inclusive, as though fully set forth herein.
`Section 332 of the Act mandates that local regulation of the placement of wireless
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`facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless
`services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).
`The City has effectively prohibited AT&T’s provision of personal wireless
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`services, by failing to timely act upon AT&T’s Application, by failing to approve that
`Application, and by failing to offer reasonable and lawful license terms in connection with the
`Application.
`Local inaction by the end of the applicable small cell shot clock amounts to a
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`presumptive prohibition on the provision of personal wireless services within the meaning of the
`Act. See Small Cell Order, ¶¶ 116-129. The FCC has explained that when a local government
`does not issue all necessary permits and authorizations in a timely manner, litigation will be
`expedited, and wireless services providers will have a straightforward path to fast and complete
`injunctive relief. Id.
`The City’s shot clock violation constitutes an effective prohibition on AT&T’s
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`provision of personal wireless services, in violation of Section 332.
`An effective prohibition, in violation of the Act, also occurs when a local
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`requirement “‘materially limits’ or inhibits the ability of any competitor or potential competitor
`to compete in a fair and balanced legal and regulatory environment” (Small Cell Order, ¶ 35),
`such as “where a [local regulation] materially inhibits a provider’s ability to engage in any of a
`variety of activities related to its provision of a covered service” (id. at ¶ 37). The material
`inhibition analysis “focuses on the service the provider wishes to provide, . . . including facilities
`deployment to provide existing services more robustly, or at a better level of quality.” Id., n.95.
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 8 of 11
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`A local government “could materially inhibit service in numerous ways – not only by rendering a
`service provider unable to provide existing service in a new geographic area or by restricting the
`entry of a new provider in providing service in a particular area, but also by materially inhibiting
`the introduction of new services or the improvement of existing services.” Id., ¶ 37.
`The City, by refusing to act on AT&T’s small cell Application, and failing to
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`offer terms that fully comply with federal law, has materially inhibited AT&T’s effort to
`improve its wireless network by building small cell wireless facilities in the City. The City has
`thus effectively prohibited AT&T from providing personal wireless services in the City.
`The City has also effectively prohibited AT&T’s provision of personal wireless
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`services because its failure to approve AT&T’s Application has prevented AT&T from
`remedying a significant service capacity gap using the least intrusive means. AT&T’s Proposed
`Facility will help AT&T address a significant service capacity gap in the City by providing and
`improving critical wireless services in the City, including by offloading network traffic carried
`by existing macro facilities in the area, and enabling faster data rates.
`By placing the Proposed Facility (and future proposed facilities) in an area where
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`AT&T’s existing wireless telecommunications facilities are constrained, and where AT&T
`experiences especially high network traffic, AT&T can close its service gaps and address its
`customers’ existing and forecasted demands for expanded wireless services. AT&T selected the
`Proposed Facility location as the best available and least intrusive means to address its service
`objectives in the relevant portion of the City.
`AT&T will suffer imminent irreparable harm if the City continues to delay
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`processing AT&T’s Application (and future applications), based on the City’s insistence on
`mandating license terms and fees that violate federal law. Further, the entry of an injunction will
`serve the public interest by preserving the purpose of the Telecommunications Act to “encourage
`the rapid deployment of new telecommunications technologies.” Telecommunications Act of
`1996, 110 Stat. 56.
`36. WHEREFORE, AT&T prays for judgment as set forth below.
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 9 of 11
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`THIRD CLAIM FOR RELIEF
`(Effective Prohibition)
`(47 U.S.C. § 253)
`
`AT&T hereby incorporates by reference the allegations of paragraphs 1 through
`37.
`36, inclusive, as though fully set forth herein.
`38.
`Under Section 253 of the Act, local government regulation may not “prohibit or
`have the effect of prohibiting the ability” of a carrier to provide telecommunications service.
`39.
`Section 253 of the Act prohibits both express and de facto moratoria on permit
`applications to place telecommunications facilities. In the Matter of Accelerating Wireline
`Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 7705,
`¶¶ 149, 167 (FCC rel. Aug. 3, 2018) (hereinafter, “FCC Moratoria Ruling”). Moratoria—
`whether express or de facto—violate the Act and are unlawful because they prohibit or have the
`effect of prohibiting the provision of wireless telecommunications services. Id. ¶ 151. De facto
`moratoria are state or local actions “that effectively halt or suspend the acceptance, processing,
`or approval of applications or permits for telecommunications services or facilities.” Id. ¶ 149.
`Examples include refusals to process applications, refusals to issue permits for a category of
`structures, such as a city-owned pole, and frequent and lengthy delays. Id.
`40.
`The City’s delay in failing to approve or reject the Application, and its insistence
`on demanding agreement to unlawful and unreasonable terms and fees for installation of
`facilities in the City right-of-way, constitute a de facto moratorium that violates Section 253.
`AT&T will suffer imminent irreparable harm if the City continues to delay
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`processing AT&T’s Applications (and other future applications). Further, the entry of an
`injunction will serve the public interest by preserving the purpose of the Telecommunications
`Act to “encourage the rapid deployment of new telecommunications technologies.”
`Telecommunications Act of 1996, 110 Stat. 56.
`42. WHEREFORE, AT&T prays for judgment as set forth below.
`
`///
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 10 of 11
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`2.
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`3.
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`PRAYER FOR RELIEF
`WHEREFORE, AT&T prays for relief against the City as follows:
`For a declaration and judgment that the City has violated the Act by failing to act
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`within a reasonable period of time on AT&T’s Application;
`For a declaration and judgment that the City has violated the Act by effectively
`prohibiting AT&T from improving and providing personal wireless service and
`telecommunications service;
`For an order mandating that the City grant forthwith AT&T’s Application and
`immediately issue all permits and all other authorizations necessary for the
`construction of the Proposed Facility;
`For an order 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.
`
`4.
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`5.
`6.
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`REQUEST FOR EXPEDITED REVIEW
`Section 332 of the Act provides AT&T a private right of action for the City’s failure to act
`on AT&T’s wireless facility permit applications, and states that “[t]he court shall hear and decide
`such action on an expedited basis.” 47 U.S.C. § 332(c)(7)(B)(v). AT&T respectfully requests a
`hearing and decision by the Court on an expedited basis as provided by the Act.
`///
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`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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`Case 6:20-cv-01946-AA Document 1 Filed 11/10/20 Page 11 of 11
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`Dated: November 10, 2020
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`DOUGLAS W. SULLIVAN LAW OFFICE
`
`By:
`
`s/ Douglas W. Sullivan
`Douglas W. Sullivan, OSB # 174733
`
`CROWELL & MORING LLP
`Thomas F. Koegel (Pro Hac Vice to be filed)
`TKoegel@crowell.com
`Kimberley Johnson (Pro Hac Vice to be filed)
`KJohnson@crowell.com
`
`AT&T SERVICES, INC.
`Legal Department
`Raymond P. Bolaños (Pro Hac Vice to be filed)
`Rb2659@att.com
`
`Attorneys for Plaintiff
`
`Complaint for Declaratory and Injunctive Relief and Request for Expedited Review
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