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COX COMMUNICATIONS PCS, L.P. v. CITY OF SAN MARCOS

April 18, 2002

COX COMMUNICATIONS PCS, L.P., A DELAWARE LIMITED PARTNERSHIP, PLAINTIFF,
V.
CITY OF SAN MARCOS, A CALIFORNIA MUNICIPALITY; F.H. SMITH, IN HIS CAPACITY AS VICE-MAYOR OF THE CITY OF SAN MARCOS; PIA HARRIS, IN HER CAPACITY AS VICE-MAYOR OF THE CITY OF SAN MARCOS; HAL MARTIN, IN HIS CAPACITY AS A COUNCILMEMBER OF THE CITY OF SAN MARCOS; MARK J. ROZMUS, IN HIS CAPACITY AS A COUNCILMEMBER OF THE CITY OF SAN MARCOS; LEE B. THIBADEAU, IN HIS CAPACITY AS A COUNCILMEMBER OF THE CITY OF SAN MARCOS, DEFENDANTS.



The opinion of the court was delivered by: Rudy Brewster, United States Senior District Judge

  GRANTING IN PART, DENYING IN PART, DEFENDANTS' MOTION TO DISMISS

I. Introduction and Background

Plaintiff Cox Communications PCS, LP. (d.b.a. Sprint PCS) ("Sprint") is a provider of wireless telecommunications service throughout the San Diego area, including the City of San Marcos ("the City"). On April 20, 2001, Sprint sent a letter to the City requesting permission to use the public rights-of-way to install various facilities at three sites in the City. The facilities include wireless cell devices that attach to electrical poles and boxes at the base of the poles to provide power to the wireless transmission units. On August 2, 2001, the City indicated that Sprint could not use the public rights-of-way without first obtaining a Conditional Use Permit ("CUP").

The process for receiving a CUP from the City is contained in Title 20 of the San Marcos Municipal Code. To obtain a permit, a party must file an application with the City that includes a complete plan, description of the property, the proposed use, satisfactory evidence that the applicant will begin construction within six months of receiving the permit, and a fee of $3,476. San Marcos Municipal Code § 20.96.170. A public hearing is required. §§ 21.104.070, 20.104,075, 20.104.080. The applicant must show that its proposed use of the rights-of-way will not be "materially detrimental to the public health, safety, or welfare or injurious to the property or improvement in such vicinity and zone in which the property is located" and "will not adversely affect any master or precise plan adopted pursuant to law." § 20.96.170. The City retains discretion to grant or deny permits. § 20.96.040 ("Use permits may be granted upon such conditions... as shall deem to be reasonable and necessary or advisable under the circumstances so that the objectives of this ordinance shall be achieved."); § 20.96.190 ("Use permits may be granted for such period of time and upon such conditions and limitations as may be deemed appropriate."). Violators of the ordinance may be punished by fine and/or imprisonment. §§ 20.112.20, 20.112.30, 20.112.040. Finally, if a permit is granted, the City may require a bond to insure performance and furnish security. § 20.96.050.

On October 1, 2001, Sprint informed the City that it believed the CUP process, as contained in the parts of the San Marcos Ordinance described above, violated Sprint's federal and state rights. On or about November 16, 2001, the City and Sprint met to discuss Sprint's proposed projects and right to install such facilities. The parties did not agree whether the City could require Sprint to obtain a CUP before it used the rights-of-way. On November 26, 2001, Sprint sent another letter to the City requesting that the City accept Sprint's applications and issue encroachment permits without requiring Sprint to undergo the CUP process. Although the letter asked for a response within ten days, the City has not replied to Sprint's request.

On December 14, 2001, Sprint filed this complaint against the City, the mayor, the vice-mayor, and various city council members, which contains fourteen causes of action as follows: (1) violation of 47 U.S.C. § 332 (c)(7)(B)(i)(I); (2) violation of 47 U.S.C. § 253; (3) violation of 47 U.S.C. § 332 (c)(7)(B)(i)(II); (4) violation of 47 U.S.C. § 332 (c)(7)(B)(ii); (5) violation of 47 U.S.C. § 253 (discriminatory regulation); (6) violation of California Public Utilities Code § 7901.1; (7) preemption; (8) violation of 42 U.S.C. § 1983; (9) declaratory judgment; (10) writ of mandamus; (11) injunctive relief; (12) intentional interference with contract; (13) ultra vires conduct in excess of state authority; and (14) ultra vires conduct in excess of municipal authority. The defendants seek to dismiss all of Sprint's causes of actions for failure to state a claim. Furthermore, the defendants ask the Court to dismiss the 1st, 2d 3 rd, 4th, 5th, 7th, 8th, and 9th causes of action because they are not ripe. Finally, the defendants argue that the Court should decline jurisdiction over Sprint's state law claims.

II. Summary of the Law

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed with prejudice if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court need not, however, accept every allegation in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagiopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios v. Richard Feiner and Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) (citing Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984)).*fn1 "However, material which is properly submitted as part of the complaint may be considered." Hal Roach Studios, 896 F.2d at 1555 n. 19 (citing Amfac Mfg. Corp. v. Arizona Mall of Tempe, 583 F.2d 426 (9th Cir. 1978)). In addition, a court may, on a motion to dismiss, take judicial notice of facts outside the pleadings as allowed pursuant to Federal Rule of Evidence 201. Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Fed. Sav. and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)).

III. Analysis

First and Third Causes of Action: Violation of 47 U.S.C. § 332 (c)(7)(B)(i)(I) and 47 U.S.C. § 332 (c)(7)(B)(i) (II) Sprint alleges two causes of action based on 47 U.S.C. § 332 (c)(7), which defines the local governments' power to make decisions over local cell sitings. That statute says, in relevant part:

Preservation of local zoning authority

(A) General Authority

Except as provided in this paragraph nothing in this chapter 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.

(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.
(ii) A state or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly, filed with such government or instrumentality taking into account the nature and scope of such request.
(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless services facilities shall be in writing and supported by substantial evidence contained in the written record.
(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief

In its 1st and 3rd causes of action, Sprint asserts the defendants have violated §§ 332(c)(7)(B)(i)(I) and 332(c)(7)(B)(i)(II), respectively. The defendants correctly respond these causes of action fail to state a claim because the defendants have not yet made a decision on whether Sprint can use the rights-of-way.

These sections of the telecommunications act only allow for a cause of action if the local authority has made a decision. This rule is made clear by § 332(c)(7)(B)(v), which specifically grants a cause of action to those who have been "adversely affected by any final action" of a local government. 47 U.S.C. § 332 (c)(7)(B)(v) (emphasis added). Sprint admits this point. Sprint, Reply, 2 ("[S]ection 332 applies to . . . [siting] decisions and failures to act on requests for . . . [siting] decisions whereas section 253 also applies to general policies that have the effect of prohibiting the provision of telecommunication services.") (emphasis added). Sprint fails to cite, and the Court has been unable to find, any case brought under §§ 332(c)(7)(B)(i)(I) or 332 (c)(7)(B)(i)(II) which did not involve a final action or a decision by a local government or agency.

This interpretation requiring a "decision" or "final action" is consistent with the other provisions of the FTA. Section 332(c)(7)(A) says that "nothing in the chapter" should affect the local government in its "decisions" regarding local cell sites. Also, subsection (iii) says how the "decisions" should be in writing and supported by substantial evidence. Furthermore, any interpretation of §§ 332(c)(7)(B)(i)(I) and 332(c)(7)(B)(i)(I) that allows applicants to challenge the laws, rather than decisions, would be superfluous because 47 U.S.C. § 253 already gives applicants this option. Where 47 U.S.C. § 253 provides a cause of action against local regulations, section 332 gives a cause of action against local decisions.

In this case, because the defendants have not rejected Sprint's application for an excavation permit or a CUP, they have not taken any final action. Because no decision or final action has been made on Sprint's request, the company has failed to state a cause of action under §§ 332(c)(7)(B)(i)(I) and 332(c)(7)(B)(i)(II).

The Court dismisses the 1st and 3rd causes of action.

Fourth Cause of Action: Violation of § 332(c)(7)(B) (ii)

Section 332(c)(7)(B)(ii) requires the City to respond to any request for a permit "within a reasonable time after the request is duly filed . . . taking into account the nature and scope of such request." Sprint argues that although it has not applied for a CUP, it has properly filed for an excavation permit and has not received a response for more than 10 months, giving it a cause of action under this provision.

If the facts in the complaint were true, Sprint could possibly show that the defendants have delayed for an unreasonable time in violation of § 332(c)(7)(B)(ii).

This claim presents factual issues to determine whether the City's alleged delay was unreasonable, considering the ...


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