GTE Mobilnet of California Limited Partnership v. City of Berkeley

Background

GTE Mobilnet of California Limited Partnership, which the opinion calls Verizon, sued the City of Berkeley under the Telecommunications Act of 1996. Verizon challenged Berkeley’s denial of its application to build, operate, and maintain an unoccupied personal wireless service facility. The proposed project included six antennas and related equipment on a new 50-foot pole designed to resemble a pine tree.

Berkeley’s Zoning Adjustment Board denied the application after a June 27, 2019 hearing. Verizon appealed, and the Berkeley City Council denied the application at a July 7, 2020 hearing. Berkeley issued a written denial on September 8, 2020. Verizon’s amended and supplemental complaint asserted three claims: that Berkeley failed to act within a reasonable time; that the written denial lacked substantial evidence; and that the denial effectively prohibited Verizon from providing personal wireless services.

Berryman Reservoir Neighbors, or BRN, intervened in the case. The opinion states that BRN consists of individuals who live near the proposed cell tower and oppose the project. BRN moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) permits dismissal for lack of subject-matter jurisdiction, while Rule 12(b)(6) tests whether the complaint states a legally sufficient claim.

Ripeness and the 30-day filing period

BRN argued that the case was not ripe, meaning not sufficiently ready for judicial review, because Verizon filed its original complaint after Berkeley’s oral denial but before Berkeley issued a written denial. BRN also argued that the Telecommunications Act’s 30-day period for filing suit was jurisdictional and could not be extended through relation back.

The court rejected those arguments. It concluded that the 30-day period in 47 U.S.C. § 332(c)(7)(B)(v) is not jurisdictional. The court relied on its earlier ruling in this case and found persuasive a Third Circuit decision involving a similar sequence of an oral denial, a later written denial, and a supplemental complaint. The court also stated that the approach was consistent with Ninth Circuit law.

The court held that Verizon’s first amended and supplemental complaint could relate back to the original complaint because the pleadings shared a common core of operative facts. As a result, the supplemental complaint cured any ripeness problem with the original filing, and the court held that it had subject-matter jurisdiction over the amended and supplemental complaint.

Standing

BRN argued that Verizon lacked standing based on language in a telecommunications lease and purported statements by an East Bay Municipal Utility District director. The court declined to consider those materials because they had not been authenticated. The court added that, even if properly submitted, the parties’ arguments raised factual issues that were not suitable for resolution on a motion to dismiss. The court also found that BRN had not explained how the lease provision defeated Verizon’s standing to challenge Berkeley’s decision under the Telecommunications Act.

The court denied the motion to dismiss based on standing.

Timeliness of the supplemental complaint

BRN separately argued that the supplemental complaint was untimely under Rule 12(b)(6). It contended that Verizon had only 30 days from July 10, 2020—the alleged deadline for Berkeley to act—to file its failure-to-act claim, but did not file the supplemental complaint until February 1, 2021.

The court declined to revisit that issue. It had already rejected BRN’s statute-of-limitations argument when it granted Verizon permission to file the amended and supplemental complaint. The court also relied on Ninth Circuit authority allowing a supplemental pleading filed after a limitations period expired to relate back to the original complaint.

Request for costs

BRN asked the court to dismiss Verizon’s request for costs and disbursements under 28 U.S.C. § 1920, arguing that the request improperly sought attorneys’ fees and costs under the Telecommunications Act. The court disagreed. It explained that Section 1920 lists categories of taxable costs and does not include attorneys’ fees. The court held that the complaint did not improperly request relief beyond what Section 1920 authorizes and denied this part of the motion as well.

Disposition

Judge Donna Ryu denied BRN’s motion to dismiss the first amended and supplemental complaint. The court ordered Berkeley and BRN to respond within 14 days and ordered Berkeley to file the administrative record. The opinion did not decide the ultimate merits of Verizon’s three Telecommunications Act claims; it stated that the parties would proceed toward summary-judgment motions under the existing schedule.