County Seeks Judgment That AT&T Tower Denial Wasn’t Preempted by Telecom Act

Kootenai County, Idaho, “affirmatively avers” that the Telecommunications Act doesn’t act “as a preemption of local governments’ ability to deny applications for installation of wireless communications facilities,” said the county’s answer Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho in Coeur d'Alene to AT&T’s March 29 complaint (see 2303300046). The county is countersuing for a declaration and judgment that its actions in denying AT&T’s application weren’t preempted by the TCA and "are therefore valid.”

AT&T seeks declaratory and injunctive relief based on the county’s denial of its application for a conditional use permit to build, operate and maintain a wireless telecommunication facility in the northwest corner of Idaho near the Washington border.

AT&T alleges the county's denial wasn’t supported by “substantial evidence,” in violation of the TCA. It also alleges the county “effectively prohibited” AT&T’s installation of telecommunications and personal wireless service facilities, also in violation of the statute.

But the county bases its argument that the TCA doesn’t preempt the denial “on traditional considerations related to local land use regulation,” said its answer. It “further reserves the right to also present argument” that various FCC regulations and rulings purporting to support the AT&T’s position “are inconsistent with the plain language” of the TCA, “and relevant federal appellate court rulings,” particularly those from the 9th U.S. Circuit Court of Appeals, it said.

Contrary to AT&T’s allegations, the county asserts it “did comply, or at least substantially comply,” with the deadlines in the FCC’s shot clock rule, said its answer. The county further reserves the right to also "present argument" that the shot clock doesn’t provide a reasonable period of time for a government entity to act on a wireless communication facility siting application, as required in the TCA, it said.

In addition to the county's counterclaim for a declaration that its denial of AT&T application was preempted by federal law, it also seeks a judgment that its denial didn't "effectively prohibit AT&T from closing a significant coverage gap in the provision of wireless service" in violation of the TCA, as AT&T alleges. The county said it also seeks a declaration AT&T isn't "entitled to approval" of the proposed facility and seeks expedited review "of the matters set forth" in AT&T's complaint and the country's answer, "as required by federal law."