American Tower Corporation v. City of San Diego

It is ironic that local governments tend to fear lawsuits by the wireless industry and then, unknowingly, set themselves up for a lawsuit.  Kreines & Kreines, Inc. helps cities and counties to avoid lawsuits in the first place.

This case will be discussed in subsequent issues of PlanWireless.

American Tower Corporation (ATC) has several facilities within the City of San Diego. 

·       Some were approved by the granting of a Conditional Use Permit with a time limit, in this case an expiration date of 10 years.

·       Some now exist past the expiration dates of the Conditional Use Permits.

·       The City is now requiring applicants with past expiration dates either to bring the facilities into compliance with existing regulations by re-applying (anew) for Conditional Use Permits or to remove the facilities.  According to the City, those are the only two options available to ATC.

·       In two cases, ATC claims that the City of San Diego held out the prospect of “renewing” the two Conditional Use Permits rather than make ATC reapply for new Conditional Use Permits.  The distinction is crucial, since a renewal would mean the Conditional Use Permit is still in force, while a new application means the original Conditional Use Permits are no longer valid. 

·       The City of San Diego denies ever considering a “renewal” as an option, but the City did accept ATC’s applications to renew.

ATC has filed a ten-count complaint in U.S. District Court for the Southern District of California.  PlanWireless reviews the ten counts below in the very brief representation of ATC’s claims and the laws involved (the reader should keep in mind that these claims have yet to be heard by the Court):

1.       The U.S. Constitution, Section 253 of the Telecommunications Act and various case law mandates that a city cannot pre-empt ATC.

2.       The California Permit Streamlining Act required the City of San Diego to act in a timely manner, which the City failed to do.

3.       ATC’s civil rights were violated under 42 U.S. Code Section 1983, 1988 and the U.S. Constitution.

4.       ATC had vested rights that were taken by the City of San Diego under 42 U.S. Code Section 1983 and the U.S. Constitution.

5.       The City of San Diego rents space to carriers on facilities owned by the City that are exempt from City regulations, thereby violating the Telecommunications Act.

6.       Removal of some ATC facilities will cause substantial impacts on some of ATC’s tenants’ networks in the San Diego market, thereby violating the Telecommunications Act.

7.       Denial of two of ATC’s “reapplications” for Conditional Use Permits as lacking in “camouflage” and “adding to visual clutter,” where no substantial evidence is presented by the City of San Diego, is a violation of the Telecommunications Act.

8.       Denial of the same two reapplications for Conditional Use Permits is a rescission of a fundamental vested right under the California Code of Civil Procedures.  The two towers provide the backbone of Sprint and Verizon’s networks and therefore they cannot be removed.

9.       The City of San Diego must reissue the expired Conditional Use Permits without substantially changing the original terms of both original applications.

10.    The City of San Diego unfairly interfered with ATC’s ability to compete by causing some carriers to locate on other towers, including towers belonging to the City of San Diego.

For remedies, ATC asks the U.S. District Court to:

·       Find the City of San Diego’s actions void and invalid.

·       Declare the entire City wireless regulations unenforceable.

ATC also seeks a writ of mandamus forcing the City to grant the two Conditional Use Permits that ATC re-applied for with conditions substantially similar to those of the original Conditional Use Permits.  Finally, ATC seeks damages for:

·       Cost of the lawsuit.

·       Money damages as established by evidence.

·       Attorneys’ and experts’ fees.

City of San Diego Answer

For its part, the City of San Diego denies all allegations made by ATC, including:

·       The Federal Court does not have jurisdiction over the California laws that ATC claims were violated by the City.

·       ATC is not a “telecommunications carrier” providing “telecommunications services” as alleged by ATC.

·       The City never intended to “renew” any Conditional Use Permits, as alleged by ATC. 

·       All expired Conditional Use Permits need to be reapplied for and the application process begun anew.

·       All revised City regulations apply to the new applications.[1]

The City of San Diego asks for dismissal of the lawsuit and reimbursement for costs of defending itself.

ATC is Not a Carrier

Kreines & Kreines, Inc. believes that tower companies like ATC are not licensed by the FCC and therefore they have no mandate or authority to transmit or receive wireless signals.  Tower companies are middlemen, providing mounts for wireless carriers, including those that are unlicensed (e.g., WiFi).  Carriers who are licensed by the FCC are specifically the subject of the Telecommunications Act because they provide “personal wireless services.”

Kreines & Kreines, Inc. believes that applications for approval of personal wireless service facilities should be only from wireless carriers or from wireless carriers and tower companies as co-applicants.[2]  Tower companies do not provide personal wireless services and are not the subject of the Telecommunications Act.  A careful reading of the Telecommunications Act will show that “towers” are not mentioned.  Instead, the Telecommunications Act uses the term “personal wireless service facilities,” which are not the same as “towers.”

Please Repeat: Personal Wireless Service Facilities

The Telecommunications Act clearly states that facilities accommodating personal wireless services are called “personal wireless service facilities.”  In contrast, ATC uses the following terms in its complaint:

·       Telecommunication towers.

·       WCFs or wireless communications facilities, in response to the City of San Diego’s “WCF regulations.”

·       Wireless communications sites.

·       Communications antennas.

·       WTFs or wireless telecommunications facilities.

Kreines & Kreines, Inc. believes that only personal wireless service facilities are the subject of the Telecommunications Act and that towers are merely one type of structure that can accommodate personal wireless service facilities, like rooftops.  Like rooftops, towers do not transceive wireless signals and towers are not personal wireless service facilities. 

For its part, the City of San Diego uses the following terms in its answer: 

·       WCFs or wireless communications facilities.

·       Wireless facility sites.

·       Wireless facilities.

·       Telecommunications facilities.

·       Telecommunications facility.

The City and ATC seem equally confused as to the difference between “towers” and “personal wireless service facilities.”  By regulating a structure, which is what a tower is, as something other than a structure, local governments lose track of what they are regulating and the rationale of the Telecommunications Act.  The rationale of the Telecommunications Act is to allow state and local governments to regulate personal wireless service facilities with their zoning authority.  A tall tower was always subject to state and local regulations.[3]

A tower for personal wireless services should be no different from a structure for lighting, or a silo or any one of hundreds of tall structures.  It is when – and only when - a personal wireless service facility is placed on a tower that a city or county’s regulations for wireless facilities should apply.  When a second personal wireless service facility is placed on the same tower, the “tower” is a support structure for two personal wireless service facilities, not one.

This issue is confusing to many local governments.  They regulate “towers” as if the tower was the personal wireless service facility.  After approving a tower with one personal wireless service facility, the local governments often fail to apply their zoning and building permits to their fullest extent when other personal wireless service facilities are added to the tower.  The problem begins with definitions.  Local governments need to repeat the term  "personal wireless service facilities."

Does That Mean Local Governments Only Need Approve a “Tower” Once?

It would be easy to think that “towers” get approved one time only and that any further regulation of the structure is for adding personal wireless service facilities.  Nothing could be further from the truth.

Each time a personal wireless service facility is granted a zoning permit, the construction and development must receive a building permit that conforms to the zoning permit.  If a single-user “tower” subsequently adds another personal wireless service facility, the load on the tower becomes greater.  The “tower” as a structural component needs to be re-examined.  The same is true of the third personal wireless service facility on the same “tower”: new load requirements require a new examination of the structural support.

Less obvious is the fact that carriers modify their personal wireless service facilities continuously.  Changing one set of antennas, for example, for another set often adds weight and “sail.”  Building permits are often not applied for in these situations.  Zoning permits are often not reviewed even if building permits are applied for.  Kreines & Kreines, Inc. doesn’t think many local governments are requiring building permits for modifications to personal wireless service facilities that are consistent with the original zoning permits.  Kreines & Kreines, Inc. believes that local governments should require:

·       Building permits for all additions and changes to a tower.

·       New building permits be consistent with original zoning permits, or the zoning permit must be re-applied for.

·       New or amended Conditional Use Permits for each and every modification.  This is the best way to keep the tower owners current on the local government’s changing regulations and database.

And it doesn’t end there.  Towers are designed for wind load to a national standard.  The more attachments, the greater the wind loading.  Readers of the October/November 2007 issue of PlanWireless should recall that the standard has recently been made much stricter.

As the number and changes of attachments (no matter how small) to “towers” change, so should:

·       Building permits be issued.

·       Zoning permits be amended or re-applied for.

·       Calculations for wind load redone.

An Alternative to a Lawsuit Would be if the City of San Diego Forced Zoning and Building Compliance

ATC’s complaint is laden with allegations that the City of San Diego met with ATC to explain the Conditional Use Permit process and then met with ATC again to debate the difference between new applications and “renewals,” all to no avail.

After several meetings and innumerable letters, where the City seemed to go out of its way trying to accommodate ATC, the list of expired Conditional Use Permits grew to ten.

Then the attempted first two “renewals” were denied by the City on June 28, 2007.  It is now three years after the Conditional Use Permits expired and the reader should not be surprised that the “towers” are still standing.  And they may have been modified during those three years as well.

Kreines & Kreines, Inc. wonders what would have happened if the City required a zoning review and new building permits for each modification or new attachment to each tower since the Conditional Use Permits were issued.

At least ATC would know that the City was serious about enforcing its regulations.  They would understand that going through minor compliance requirements along the way was a good way to respect the regulations.  Now, 13 years later, there is a surprise: a major lawsuit.

Local governments should enforce rules along the way to the expiration of a Conditional Use Permit.  This may help to avoid lawsuits.

Where Will It All End?

Kreines & Kreines, Inc. cannot predict the future but the loser may appeal to the Ninth Circuit of the U.S. Court of Appeals.  We may see this litigation go all the way to the U.S. Supreme Court.  If the District Court trial begins in 2008, Kreines & Kreines, Inc. figures about two years for each round before a higher court. 

Look for a decision on any side’s appeal in about six years, or 2014.  That will be ten years after the original Conditional Use Permits expired in 2004.  Could that be ATC’s plan: double the life of your Conditional Use Permits without going back for any more permits?

Will the two towers still be standing?  Will there be more tenants, more modifications and increased rents to ATC?  Will ATC have realized millions of dollars in rents from the two towers while only spending hundreds of thousands of dollars in litigation?

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com