New Cingular Wireless PCS, LLC v. City of Los Altos

Background

New Cingular Wireless PCS, LLC, doing business as AT&T Mobility, sued the City of Los Altos under the Federal Communications Act after the City denied AT&T’s applications for permits to install 12 small-cell wireless facilities. The City had adopted a 2019 ordinance that applied retroactively to the pending applications. In June 2022, the City repealed that ordinance and adopted a comprehensive ordinance governing wireless facilities.

The court dismissed AT&T’s action as moot on August 22, 2022, and terminated AT&T’s then-pending summary-judgment motion. AT&T appealed that order but voluntarily dismissed the appeal on February 5, 2024. Before then, in May 2023, AT&T had submitted new permit applications under the 2022 regulations for 11 of the 12 locations. The City granted those applications in December 2023. AT&T did not submit a new application for the twelfth location and stated that it did not plan to do so at that time.

Motion and legal standard

AT&T moved under Federal Rule of Civil Procedure 60 to vacate, meaning erase or set aside, the August 22, 2022 order dismissing the case as moot. The City argued that AT&T did not satisfy the standard for vacatur. The court held that a district court reviewing its own order uses an equitable balancing test, rather than the more demanding “exceptional circumstances” standard generally applied by appellate courts.

The court considered the consequences and hardships of leaving the order in place, the interests in finality and relitigation, the parties’ motives, and public policy. The party seeking vacatur bears the burden of showing that fairness supports it.

Court’s analysis

The court found that AT&T had not shown sufficient hardship from the mootness order. AT&T argued that the order could encourage municipalities to deny wireless-permit applications and then adopt new ordinances to avoid judicial review. The court found that concern speculative and relied on the presumption that governments act in good faith when they voluntarily stop challenged conduct.

The court also found that AT&T had conceded it did not seek to relitigate the permit denials under the 2019 ordinance. The dispute remained unreviewed because AT&T voluntarily dismissed its appeal as a strategic business decision. The court did not find that AT&T had engaged in gamesmanship, but it found that AT&T’s action prevented appellate review, making the motive factor at best neutral for AT&T.

Finally, the court rejected AT&T’s argument that public policy favored vacatur because the new permits would improve wireless service and because vacatur might encourage settlements. The court concluded that allowing potentially unfavorable decisions to be erased after settlement or other resolution could reduce incentives to settle early and could improperly remove decisions from the public record.

Disposition

The court held that AT&T had not made the required showing under the equitable balancing test. Judge Edward J. Davila denied AT&T’s motion to vacate the mootness order and directed the clerk to close the file.