Crown Castle Lacks Standing for Section 253 Relief, Says Pasadena

Crown Castle’s September 2020 argument in U.S. District Court for Southern Texas in Houston that the Telecommunications Act preempts the city of Pasadena, Texas, design manual is “inconsistent with the unambiguous language” of the statute’s Section 253, said Pasadena’s reply brief Monday (docket 22-20454) in the 5th U.S. Circuit Appeals Court. Pasadena wants to reverse the lower court’s granting of summary judgment in Crown Castle’s favor on grounds that a "plain reading" of the manual shows the spacing requirement for small node networks is "clearly more burdensome" than the requirements applicable to other users of the public rights of way (see 2212010001).

Section 253 and congressional intent show disputes should be heard before the FCC and appeals from the FCC’s decisions heard by the U.S. Court of Appeals for the D.C. Circuit, said Pasadena. The 2001 district court decision in Pacific Bell Telephone v. City of Hawthorne said complaints by telecommunications service providers that a state or local law violates Section 253 should be lodged with the FCC in Washington, said the city: “Of course, further attenuating Crown Castle’s claim is the indisputable fact that Crown Castle is not even a telecommunications provider.”

It’s not surprising that neither the Supreme Court nor the 5th Circuit has identified a “proper case” in which a district court has “equitable jurisdiction” to enforce Section 253 in “derogation” of the statute’s “mandatory” language, said Pasadena. “To say a court lacks equitable jurisdiction is to say that traditional equitable principles bar the court from entertaining the claim or granting relief,” it said. “Even though it is not an aspect of subject matter jurisdiction, whether a court possesses equitable jurisdiction is still antecedent to hearing a claim on the merits.”

The district court erred “by finding it had subject matter jurisdiction" and failed to address "whether it had equitable jurisdiction over Crown Castle’s preemption claim” under Section 253, said Pasadena. The district court also erred by finding Crown Castle “has standing to assert a claim” under the Telecommunications Act, it said.

The record establishes “beyond dispute” that Crown Castle was not offering telecommunications services for a fee directly to the public, and so it doesn’t qualify as a telecommunications service provider, said the city. A carrier is relegated to common carrier status when it’s required to offer service indiscriminately and on general terms, it said: “No other putative plaintiff -- such as one doing construction in aid of a carrier -- comes within this narrow definition.”

Crown Castle merely agreed to install physical infrastructure to allow T-Mobile “to expand T-Mobile’s telecommunications services for the benefit of T-Mobile’s customers,” said Pasadena. Crown Castle’s argument the summary-judgment evidence conclusively establishes it provides its transmission services indiscriminately to anyone who will pay for them “is belied by the record on appeal,” Pasadena said.

The record demonstrates Crown Castle “agreed to provide infrastructure for T-Mobile -- and only T-Mobile -- under the terms of a confidential contractual arrangement,” said Pasadena. The tower erection services Crown Castle agreed to provide T-Mobile in this case can’t and don’t qualify Crown Castle as a common carrier because they were offered under Crown Castle’s individually tailored arrangement with T-Mobile, it said.

Because Crown Castle admits it doesn’t provide telecom services, and acknowledges it wasn’t attempting to do so “in connection with the services it was providing in the instant case, Crown Castle has no standing to seek relief” under Section 253, said Pasadena. “Simply put, the district court lacked jurisdiction to entertain Crown Castle’s preemption claim.”