Sprintcom v. Puerto Rico Regulations and Permits, Civil No. 07-1026 (JP).
| Decision Date | 22 May 2007 |
| Docket Number | Civil No. 07-1026 (JP). |
| Citation | 490 F.Supp.2d 238 |
| Parties | SPRINTCOM, INC., Plaintiff v. PUERTO RICO REGULATIONS AND PERMITS ADMINISTRATION, el al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Miguel J. Rodríguez-Marxuach, Esq., Rodríguez-Marxuach & Gierbolini, P.S.C., San Juan, PR, for Plaintiff.
José Enrico Valenzuela-Alvarado, Esq., Department of Justice, San Juan, PR, for Defendants.
The Court has before it Defendant Puerto Rico Regulations and Permits Administration's ("Defendant" or "ARPE") Motion to Dismiss (No. 9) and Plaintiff SPRINTCOM, Inc.'s ("Plaintiff" or "Sprint") response thereto (No. 14). In its Complaint, Plaintiff Sprint brings suit against Defendants ARPE and the Commonwealth of Puerto Rico for Defendants' decision to deny Sprint's application for a preliminary plan approval to install a telecommunications facility on the roof of a three-story building located in the town of Isabela, Puerto Rico. Plaintiff alleges that the telecommunications facility is necessary to provide seamless, reliable wireless telephone and other communication services to individuals living, working or traveling in and around Isabela. Plaintiff argues that Defendants' denial of the application is a violation of the Federal Communications Act ("FCA") because the denial is not supported by evidence from the administrative record, and the Federal Telecommunications Act ("FTA"), which states that local governments "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). Sprint further alleges that ARPE's decision unreasonably discriminates against Sprint in violation of the FTA, giving other carriers a competitive edge in the area. Lastly, Sprint argues that Defendants have violated Section 2151 of the Puerto Rico Uniform Administrative Procedure Act ("LPAU") which grants all parties in an administrative case "the right to have the decision based on the record of the case." P.R. LAWS ANN. tit. 3, § 2151. Sprint requests injunctive and declaratory relief ordering Defendants to grant the application and issue all necessary permits to allow the installation and operation of the facility.
In Defendant ARPE's Motion to Dismiss, it argues that Sprint failed to exhaust administrative remedies before filing the instant Complaint, and therefore should be barred from seeking relief from this Court. In the alternative, Defendants argue that under the Burford abstention doctrine, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies, and as such this Court should abstain from interfering with ARPE's decision. Defendant ARPE's Motion to Dismiss is limited to these procedural arguments, and the Court will limit its analysis accordingly.
II. FACTUAL ALLEGATIONS
Sprint is continually creating a network of individual but interconnected "cell sites," which are antenna facilities consisting of radio antennas installed on existing structures and attached to equipment that sends and receives radio signals from customers' portable wireless communications handsets and mobile telephones. The antennas feed low power radio signals received from wireless telephones through the attached electronic equipment and into telephone "land lines" so calls can be routed throughout the world. Each cell site serves a small geographic area and has height requirements that vary according to local topography, vegetation, and the configuration of existing structures. Installation of these cell sites fosters seamless coverage to Sprint's customers. If the cell sites are located too far apart, service may become unreliable. Sprint alleges that a significant service gap presently exists in Isabela, Puerto Rico, and that installing a telecommunications facility (the "Facility") on the roof of a three-story building in Isabela would eliminate much of the service gap.
Sprint submitted an application for the Facility to Defendants on February 1, 2006. Sprint negotiated and entered into a lease with the owner of the building where installation of the Facility is proposed. As part of its application, Sprint explained that the Facility complied with all applicable regulations and that, if ARPE were to determine that a variance was required because the Facility would be installed in a building of less than five stories, Sprint had complied with all the requirements for the granting of such variance pursuant to ARPE's Regulation for Telecommunications Projects ("Regulation 26"). This included obtaining endorsement from the Puerto Rico Telecommunications Regulatory Board ("TRB").
A hearing was held on October 24, 2006, in the Justo Méndez Cabrera Amphitheater in Isabela (the "Hearing"). Sprint alleges it showed at the Hearing that the Facility complies with all applicable requirements under Regulation 26 and Law 89, P.R. Laws Ann. tit. 27, sec. 321 et seq. ("Law 89"). Notwithstanding Sprint's alleged compliance with the laws and regulations, the residents of the area voiced opposition to the installation of the antenna, citing possible health risks including interference with the functioning of pace makers, the attraction of lightning, and the development of skin conditions. The Municipality of Isabela also opposed the project, stating that the Municipality had presented a land use plan to TRB and, if approved, the Municipality would have the authority to issue or deny permits and would ban telecommunication facilities from urban areas.
On November 28, 2006, Sprint submitted a sworn statement attesting that the Facility would comply with all applicable FCC requirements. Shortly thereafter, on December 4, 2006, ARPE issued a resolution (the "Resolution") stating that Law 89 and Regulation 26 do not allow installation of telecommunications facilities in buildings of less than five stories and denying the variance requested. Sprint argues that in reality, as reflected in the Resolution, ARPE's denial of the application is based solely on the neighbors' opposition because of alleged health risks. The Resolution states as follows:
Even though, as evident at the public hearing, the proponent complied with the procedural requisites established for the request of a variance .... [i]n the balance of interests to be weighed, we believe that it is more important to address the concerns of the citizens than the economic benefits of the proponent.
III. LEGAL STANDARD FOR A MOTION TO DISMISS
According to the Supreme Court, a "court may dismiss a Complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 122 S.Ct. 992, 995, 152 L.Ed.2d 1 (2002). According to the First Circuit, a court must "treat all allegations in the Complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff." Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 997 (1st Cir.1992). A complaint sufficiently raises a claim "even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as relief is possible under any set of facts that could be established consistent with the allegations." González-Pérez v. Hospital Interamericano De Medicina Avanzada, 355 F.3d 1, 5 (1st Cir.2004). Under Federal Rule of Civil Procedure 8(1), "[a]ll pleadings shall be so construed as to do substantial justice."
IV. ANALYSIS
The U.S. Congress passed the FTA in order to provide a "pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition .. ." A & P S. Rep. 104-230. Section 704 of the FTA addresses limitations on the authority of local zoning boards states as follows:
(a)(7) PRESERVATION OF LOCAL ZONING AUTHORITY. —
(A) GENERAL AUTHORITY. —
Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
47 U.S.C. § 332(a)(7). The statute then continues, highlighting the following limitations on State and local governments:
(B) LIMITATIONS. —
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
. . . . .
(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commissions's regulations concerning such emissions.
47 U.S.C. § 332(a)(7).
Thus, in passing the FTA, Congress explicitly held that under limited circumstances, the federal interest in wireless communications takes priority over state zoning authority. Specifically, when a state or local government treats "functionally equivalent" providers differently, and does so "unreasonably," the FTA steps in to" preempt the state or local action. Plaintiff alleges that Defendants have...
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