Verizon Wireless (Vaw) v. City of Rio Rancho, Nm

• Citation: 476 F.Supp.2d 1325
• Decision Date: 08 March 2007
• Docket Number: No. CV 06-0823 WPL/DJS.,CV 06-0823 WPL/DJS.
• Parties: VERIZON WIRELESS (VAW) LLC d/b/a Verizon Wireless and T-Mobile Texas, L.P., Plaintiffs, v. The CITY OF RIO RANCHO, NEW MEXICO, Defendant.
• Court: U.S. District Court — District of New Mexico

476 F.Supp.2d 1325

VERIZON WIRELESS (VAW) LLC d/b/a Verizon Wireless and T-Mobile Texas, L.P., Plaintiffs, v. The CITY OF RIO RANCHO, NEW MEXICO, Defendant.

No. CV 06-0823 WPL/DJS.

United States District Court, D. New Mexico.

March 8, 2007.

Marc A. Becker, Bradley R. Schneider, Henry Weissmann, Munger Tolles & Olson LL, Los Angeles, CA, Andrew G. Schultz, Rodey, Dickason, Sloan, Akin & Rob, Jeffrey H. Albright, Lewis & Roca Jontz Dawe LL, Albuquerque, NM, Karl J. Nelson, Saul Ewing LL, Baltimore, MD, for Plaintiffs.

Randy S. Bartell, Andrew S. Montgomery, Montgomery & Andrew, Santa Fe, NM, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

LYNCH, United States Magistrate Judge.

The City of Rio Rancho enacted an Ordinance that prohibits the construction or modification of wireless telecommunications facilities without a permit issued by the City. Verizon Wireless and T-Mobile Texas (the Companies) currently provide wireless communications services in the City and surrounding areas. They brought this suit for declaratory and injunctive relief, contending that the Ordinance is preempted by the comprehensive federal regulatory framework governing radio frequency (RF) emissions and by provisions of the Communications Act of 1934, as amended by the Telecommunications Act of 1996(TCA).

The case is before me now on the City's motion to dismiss. The City seeks dismissal on the following three grounds: 1) the Companies have not presented a ripe controversy because they have not applied for a permit; 2) the Companies have not stated a claim upon which relief can be granted because they have sued under the wrong provisions of the TCA; and 3) the Federal Communications Commission (FCC) has primary jurisdiction over one of the Companies' claims. Rejecting all of these assertions, I will deny the motion to dismiss.

LEGAL AND FACTUAL BACKGROUND

The TCA

Congress enacted the TCA to promote competition and higher quality in telecommunications services and to encourage the rapid deployment of new telecommunications technologies. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Congress intended to promote a national cellular network and to secure lower prices and better service for consumers by opening all telecommunications markets to competition. Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 631 (1st Cir.2002). One of the ways in which the TCA accomplishes these goals is by reducing the impediments imposed by local governments upon the installation of wireless communications facilities, such as antenna towers. Abrams, 544 U.S. at 115, 125 S.Ct. 1453. The TCA does not, however, abolish all local authority. It tries to balance its goals with the preservation of some local authority over land use. Put simply, the TCA "attempts to reconcile the interests of consumers and residents (many of whom are themselves cell phone users)." Second Generation, 313 F.3d at 631.

The TCA generally proscribes local regulations that prohibit or have the effect of prohibiting the ability of any entity to provide a telecommunications service, as well as regulations regarding the entry of a mobile service into a market. 47 U.S.C. §§ 253(a), 332(c)(3). But the TCA preserves local zoning authority regarding the placement, construction, and modification of personal wireless service facilities, subject to several limitations. Id. § 332(c)(7). The limitations prohibit local governments from unreasonably discriminating among providers of functionally equivalent services, prohibiting the provision of personal wireless services, and regulating facilities on the basis of the environmental effects of RF emissions to the extent that the facilities comply with the FCC's RF regulations. Id. § 332(c)(7)(B)(i), (iv).

The Ordinance

The stated purpose of the Ordinance is

to ensure that the placement, construction or modification of wireless telecommunications facilities is consistent with the city's land use policies and ... to minimize [the] impact of wireless telecommunications facilities, establish a balanced, fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the City of Rio Rancho. RIO RANCHO, N.M., CODE OF ORDINANCES § 158.01. As noted above, the Ordinance prohibits the construction or modification of wireless telecommunications facilities without a permit issued by the City. Id. § 158.10(A). The term "modification" means:

The material addition, removal or change of any of the physical and visually discernable components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade or change out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification.

Id. "[N]ormal repair and maintenance" and the replacement of one component with a "reasonably similar" component do not constitute modifications. Id.

Already existing wireless telecommunications facilities are allowed to continue as nonconforming uses and may be repaired without obtaining a permit. Id. § 158.10(B). Additionally, facilities "for providing unlicensed spread spectrum technologies" such as "Wi-Fi and Bluetooth" are exempt from the Ordinance unless the facilities require new towers. Id. § 158.11(F).

An application for a permit must include several routine and non-controversial items, such as names and addresses. Id. § 158.12(I). It must also state the business and technical justifications for the new facility or modification. Id. § 158.12(I)(1)-(2). Additionally, the application must include information regarding RF emissions, transmission power, and frequency, modulation, and class of service. Id. § 158.12(I)(15)-(17).

The Ordinance favors "co-location" or shared uses of structures. See id. §§ 158.12(K), 158.25, 158.26. An application for a new tower must include a written report demonstrating that "meaningful efforts" were made to secure shared use of an existing tower or the use of alternative structures. Id. § 158.12(K)(1). If an existing tower cannot be used, the applicant must attempt to locate the facility in the order of priority set out in the Ordinance. Id. § 158.25(A). In keeping with the policy of favoring co-location, a new tower must generally be designed to accommodate at least two additional antenna arrays. Id. § 158.12(K)(2).

The Ordinance regulates the visibility, type, and height of towers. Id. §§ 158.27, 158.28. It also regulates the types of signs that are allowed or required. Among other required signs, the facility must have a sign advising of the presence of RF radiation. Id. § 158.30(A).

An application for a permit must be accompanied by a non-refundable fee of $5,000 for a new tower or $2,500 for a co-location. Id. § 158.17. The applicant must also pay the fee of the consultant hired by the City to assist it in evaluating an application. Id. § 158.13(A), (B). Indeed, the "official start" of the application process is when the applicant deposits funds into escrow with the City to cover the consultant's initial fees. Id. § 158.13(B). The applicant must deposit $8,500 for a new tower and $5,000 for a co-location or material modification of an existing structure. If the funds in escrow fall below $2,500, the applicant must replenish the funds to a minimum of $5,000 before any further action will be taken on the application. The Ordinance provides for the consultant to invoice the City. Id. It does not impose any cap on the consultant's fee. Id. § 158.13(B), (C).¹

The applicant has the burden of proving that a permit should be granted. Id. § 158.15(B). If the facility is to be located in a residential zone, the City's Planning and Zoning Board must conduct a public hearing on the application after the City determines that the application is complete. Id. § 158.14. The City will review applications "in a timely fashion, consistent with its responsibilities, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution." Id. § 158.15(A). The City must act on "completed applications" within thirty calendar days if no public hearing is required. Id. There is no deadline for action when a public hearing is required. After considering the application, the City may approve, approve with conditions, or deny a permit. Id. § 158.15(B). The decision must be in writing and supported by substantial evidence in a written record. Id.

Once a permit is granted, the permit holder and the owner of the site must jointly execute a performance bond or other form of security in the amount of $25,000 for a tower and $5,000 for a co-location. Id. § 158.40. The permit holder must also maintain liability insurance with limitations of $1,000,000 per occurrence and $2,000,000 aggregate. Id. § 158.42.

The Ordinance provides that a violation of a permit is punishable by a fine not exceeding $500 per occurrence, with each week's continued violation constituting a separate additional violation. Id. § 158.99. The Ordinance does not provide a penalty for constructing or modifying a wireless facility without a required permit. However, the general penalty provision of the City's municipal code provides:

Any person found guilty of violating any of the provisions of this code shall be fined not more than $500 or imprisoned for a period of not more than 90 days, or by both such fine and imprisonment, and each day this code is violated shall constitute a separate offense, provided, however, that...