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VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant

VERIZON WIRELESS, Plaintiff, vs. CITY OF ALBANY, Defendant

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CASE NO. CV 11-06155 LB COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION; REQUEST FOR EXPEDITED REVIEW UNDER 47 U.S.C. § 332(c)(7)(B)(v)
CASE NO. CV 11-06155 LB COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION; REQUEST FOR EXPEDITED REVIEW UNDER 47 U.S.C. § 332(c)(7)(B)(v)

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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JAMES A. HEARD (SBN 114940)
jheard@mallp.com
MACKENZIE & ALBRITTON LLP
220 Sansome Street, 14th Floor
San Francisco, California 94104
Telephone: (415) 288-4000
Facsimile: (415) 288 4010

Attorneys for Real Party GTE MOBILNET OF
CALIFORNIA LIMITED PARTNERSHIP,
a California limited partnership d/b/a VERIZON WIRELESS

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
GTE MOBILNET OF CALIFORNIA
LIMITED PARTNERSHIP, a California
limited partnership d/b/a VERIZON
WIRELESS,
Plaintiff,
vs.
CITY OF ALBANY,
Defendant.
CASE NO.



COMPLAINT FOR DECLARATORY
JUDGMENT AND INJUNCTION;
REQUEST FOR EXPEDITED REVIEW
UNDER 47 U.S.C. § 332(c)(7)(B)(v)



Plaintiff GTE Mobilnet of California Limited Partnership, a California limited partnership,
doing business as Verizon Wireless (“Verizon Wireless”), complains against defendant the City of
Albany (the “City”), and alleges as follows:
I. INTRODUCTION
1. This is both a facial and as applied challenge to one of the most burdensome and
prohibitive local enactments in the area of wireless telecommunication facilities in the Nation. It
is exactly the kind of local enactment, one that blocks a seamless network and the full benefit of
technological advances, that Congress meant to prohibit in the robust protections for the
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page1 of 35
CV 11-06155 LB

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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placement of wireless facilities which were added to the Communications Act in 1996. See 47
U.S.C. § 332(c)(3)-(7).
2. The City has violated the United States Constitution and the federal
Communications Act (the “Act”) by enacting and enforcing its Wireless Communication Facilities
Ordinance, codified as Section 20.20.100, Albany Municipal Code (“AMC”), with related
definitions at Section 20.08.020, AMC (collectively, the “Ordinance”). The Ordinance is so
restrictive that it effectively bars new wireless facilities in the City, and has even prevented
Verizon Wireless from making needed technological upgrades to an existing wireless facility,
despite the lack of any visual or other impacts.
3. Among its many burdensome requirements, the Ordinance prohibits wireless
facilities in any residential zone (which includes most of the City’s land area), subject only to a
narrow exception where the applicant can demonstrate that there is no feasible alternative. In the
few remaining areas which are theoretically open to new facilities, the Ordinance imposes a series
of barriers that, taken as a whole, effectively prohibit the provision of wireless
telecommunications services. These include, but are not limited to, requirements for: the
“maximum achievable setback” from any permitted child care facility, school, or residential zone;
costly and burdensome discretionary review of every application to build or modify any wireless
facility – even where any aesthetic impact would be minor or non-existent – with unfettered
discretion in the decision-maker; and proof that the applicant needs to build or modify its facility
in order to provide service within the Albany city limits.
4. Taken together, as they must be for purposes of federal preemption, these barriers
effectively prohibit construction of new wireless facilities in Albany. In essence, Albany has
enacted a ban on the construction or upgrade of any wireless facilities in the City, under the guise
of a wireless siting ordinance. Verizon Wireless is informed and believes that in the six years
since it enacted the Ordinance, the City has not approved a single new wireless facility.
5. The burdens under the Ordinance are further illustrated by the City’s prolonged
delay and ultimate denial of a simple request by Verizon Wireless to replace four antenna panels
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page2 of 35

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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on an existing wireless telecommunications facility at 423 San Pablo Avenue (the “Existing
Facility”) with four new antenna panels. The four new antenna panels are virtually
indistinguishable in size and appearance from the four they would replace. Verizon Wireless
needs to upgrade its antennas in order to use the 700 Mhz spectrum that it is licensed and
authorized by the Federal Communications Commission to use, and to provide enhanced, fourth-
generation wireless broadband service known as Long-Term Evolution or 4G LTE. Verizon
Wireless customers elsewhere in the Bay Area and Nation already enjoy 4G LTE service.
6. While this upgrade is significant to Verizon Wireless and its customers, it is utterly
insignificant from any legitimate land use perspective. Replacing the antenna panels would not
cause or increase any visual, noise, or other impacts properly regulated under the Albany zoning
code.
7. Despite the absence of any such impacts, the City subjected Verizon Wireless to
more than two years of exhaustive review before ultimately denying its application.
8. The reason for the denial was the City’s explicitly stated desire to prevent Verizon
Wireless from upgrading the facility to provide new services, which the City claimed would
“extend the life of a non-conforming structure.” Yet the Existing Facility was lawfully
constructed, and was subsequently rendered non-conforming only because the City chose to set
the height limit under the Ordinance at 17 feet below the Existing Facility. In any event, the City
lacks any authority to regulate the technology or radio spectrum used or services provided by
Verizon Wireless, all of which are exclusively regulated by the federal government.
9. The stated reasons for denial also included an alleged increase in visual impact, but
this was simply a pretext with no factual basis. In fact, both the City’s planning staff and the
consultant hired to review the application had previously admitted that there would be no
significant visual impact, and the City did not even raise this issue until five days before the final
City Council hearing.
10. The Ordinance requires a discretionary conditional use permit for any upgrade in
technology, equipment, or services at an existing facility – no matter how minor or unnoticeable
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page3 of 35

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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the visual or other impacts. Yet in the case of a legal non-conforming facility, it is virtually
impossible to obtain the required permit, as the City seeks to lock such facilities in place, with
only “routine maintenance” permitted. (AMC § 20.20.I.3.) The City interprets “routine
maintenance” in its most restrictive possible sense, as limited to repair or replacement of existing
equipment with identical equipment, even prohibiting any change in the manufacturer, model
numbers, or frequencies of antennas. In today’s competitive market, characterized by swift
changes in technology, no rational carrier would replace its existing facilities with exactly the
same equipment.
11. As interpreted by the City, the Ordinance prohibits any upgrade in capacity,
technology, or service to a legal, non-conforming facility – without regard for visual or other
impacts – unless the applicant can demonstrate, among other things, “that no other alternative
solutions which would meet the Development Standards are feasible.” (AMC §
20.20.100.F.5.a(3).) The City thus confronts the wireless carrier with a Catch-22. The City
interprets “alternative solutions” to include building another, completely new facility in a different
location. At the same time, the Ordinance makes it a practical impossibility to construct any new
facilities in the City.
12. The City’s onerous and intrusive regulatory scheme violates federal law, both on its
face and as applied to Verizon Wireless in this case. It is well-established that local governments
may not “interfere with the federal government's regulation of technical and operational aspects of
wireless telecommunications technology, a field that is occupied by federal law.” New York SMSA
Ltd. v. Town of Clarkstown, 612 F.3d 97, 105 (2d Cir. 2010). Yet, by requiring a discretionary
permit to perform technological upgrades that would have no impact on legitimate land-use
concerns, and by denying such a permit to Verizon Wireless specifically because the City wished
to prevent Verizon Wireless from offering new services from the Existing Facility, that is exactly
what the City has done. In addition, as interpreted and enforced by the City, the Ordinance is
preempted because it has the effect of prohibiting service in violation of the federal
Communications Act, 47 U.S.C. § 253.
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page4 of 35

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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13. Finally, the permit denial on November 7, 2011 (copy attached as Exhibit A)
violated Section 332 of the Act in several respects: (a) it was not based on substantial evidence in
violation of 332(c)(7)(B)(iii), because the antenna upgrade will have no visual impact, and
because the primary grounds for denial are preempted by state law regarding vested rights in legal
non-conforming uses and by the exclusive federal authority to regulate the technical and
operational aspects of wireless services; (b) it had the effect of prohibiting Verizon Wireless from
providing service in violation of 332(c)(7)(B)(i)(II), because replacing the existing antennas is the
least intrusive means of filling a significant gap in service; and (c) it discriminated unreasonably
against Verizon Wireless in violation of 332(c)(7)(B)(i)(I), because the City had previously
allowed a competitor of Verizon Wireless to install an entirely new – and more visible – facility
on the same pole.
14. As redress, Verizon Wireless seeks declaratory and injunctive relief barring the
City from enforcing its Ordinance and directing it to approve the proposed modification of the
Existing Facility and issue the permit to Verizon Wireless that was denied on November 7, 2011.
Verizon Wireless also seeks any other legal and equitable relief to which it is entitled, including
but not limited to costs of this action as authorized by law. Verizon Wireless also respectfully
requests expedited judicial review of these claims as required by Section 332(c)(7)(B)(v) of the
Act, including an expedited schedule for briefing and argument of motions for summary judgment
II. JURISDICTION AND VENUE
15. This case arises under the Constitution and laws of the United States, including the
Supremacy Clause, U.S. Const. Article VI, Clause 2; and the federal Communications Act,
47 U.S.C. §§ 151, et seq.
16. The Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331
and 1337. The Court has authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202.
17. Venue is proper in this Court under 28 U.S.C. § 1391(b), because the City is
located in this District and the acts or omissions giving rise to this action occurred in this District.
18. A statutory cause of action to challenge the denial of a permit for a wireless facility
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page5 of 35

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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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is expressly provided by 47 U.S.C. §332(c)(7)(B)(v). This Complaint has been filed within the
thirty (30) day statute of limitations set forth in that provision.
III. THE PARTIES
19. Plaintiff GTE Mobilnet of California Limited Partnership, doing business as
Verizon Wireless, is the local affiliate of a nation-wide provider of wireless telecommunications
services.
20. Verizon Wireless is, and at all times mentioned herein was, qualified to do business
in California.
21. Verizon Wireless is a “communications common carrier” and a
“telecommunications carrier” that provides “personal wireless services,” and “interstate and
intrastate telecommunications services” as those terms are defined and used in the Act and the
rules, regulations and orders promulgated by the Federal Communications Commission (the
“FCC”) pursuant to this statutory scheme.
22. Verizon Wireless is licensed by the FCC to provide interstate and intrastate
telecommunications services and personal wireless services via radio communication nationwide,
including within the City of Albany. Verizon Wireless provides such services via spectrum that it
is licensed to use by the FCC, including but not limited to spectrum in the 700 MHz band.
23. Defendant City of Albany is a municipal corporation duly constituted under the
Constitution and laws of the State of California. It has the authority under California law to sue
and be sued.
IV. BACKGROUND
A. Cellular Technology
24. Mobile telephones work by transmitting a radio signal to antennas mounted on a
pole, building, or other structure. The antenna feeds the signal to electronic equipment housed in a
small equipment shelter or cabinet, also referred to as a base station. The base station is connected
by fiber optic cable, ordinary telephone wire, or microwave to a local telephone network and then
to a switch, through which calls can be routed to other communications networks. The
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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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combination of a base station and its associated antennas is commonly referred to as a “cell site.”
25. To provide continuous service to a wireless telephone user, coverage from the
carrier’s cell sites must overlap in a grid pattern resembling a honeycomb. Each section of the
grid or honeycomb corresponds to the coverage area of a single cell site. In the event that a carrier
is unable to construct a sufficient number of cell sites within a specific geographic area, it will not
be able to provide uninterrupted service to the consumers within that area. If a given area has an
insufficient number of cell sites, customers in that area will suffer an unacceptable level of
dropped calls, poor signal quality, and network access problems.
26. Even where there are no existing gaps in coverage, wireless carriers must build,
modify, and upgrade their networks to meet demand and to keep pace with changing technology.
In particular, wireless carriers must install new cell sites and upgrade existing ones to provide
service to a growing number of customers and to enable the provision of the next generation of
wireless services. The specific upgrades at issue in the City’s permit denial in this case were
designed in part to increase network capacity for wireless data services. They were also designed
to allow Verizon Wireless to employ the 700 Mhz spectrum it purchased at auction from the FCC
to good advantage in the Bay Area. Moreover, because wireless antennas are optimized and tuned
to transmit and receive on particular frequencies, a carrier that acquires a new spectrum license
from the FCC may need to replace or supplement its existing antennas in order to make use of the
new radio spectrum. The FCC also has “build out” requirements, under which carriers that
purchase spectrum from the FCC are required to build network facilities to serve a certain
percentage of the population of that area within a certain number of years. Such “build out”
requirements apply to the 700 Mhz spectrum purchased by Verizon Wireless in the area that
includes the City of Albany, California.
B. The Existing Facility
27. The Existing Facility currently consists of a 65-foot wooden monopole located at
the rear of a bank building on commercially zoned property at 423 San Pablo Avenue. Verizon
Wireless’s four 48-inch panel antenna panels are mounted with their centerline at approximately
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Complaint for Declaratory Judgment and Injunction; Request for Expedited Review

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59 feet above ground level. MetroPCS owns a second array of six antenna panels that are installed
on the same pole, with their centerline at approximately 45 feet.
28. Verizon Wireless has operated a cell site at the Existing Facility since 1990, when
it installed the monopole and its original antennas pursuant to a building permit duly issued by the
City. At that time, the California Public Utilities Commission preempted local governments from
requiring discretionary zoning review for cell sites, but it has since delegated primary permitting
authority over cell sites to local governments.
29. VZW later transferred the monopole to Crown Castle GT Company LLC
(“Crown”) and continued to operate the facility as Crown’s tenant.
30. In 2001, the City’s Planning Director granted an administrative use permit
authorizing MetroPCS to collocate on the Existing Facility and install an array of antennas on the
pole at a height of approximately 45 feet, based on the finding that “no significant change will
occur in the use or appearance of the site.” (Staff Report for MetroPCS facility dated August 28,
2001, p. 2.) MetroPCS currently has six antenna panels installed on the pole.
V. REGULATORY FRAMEWORK
A. Federal Control of Radio Communications
31. For nearly 100 years, beginning with the Radio Acts of 1912 and 1927, wireless
services have been subject to continuous, pervasive, and uniform federal regulation. As the
Supreme Court recognized long ago, “[n]o state lines divide the radio waves, and national
regulation is not only appropriate but essential to the efficient use of radio facilities.” FRC v.
Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933). Thus, the comprehensive federal
regulation of nearly all aspects of wireless service has long been to the exclusion of state and local
regulation.
32. Since 1934, this control has been vested with the FCC. See Communications Act
of 1934. See 47 U.S.C. § 151 et seq. Under the Communications Act, Congress created the FCC
and placed it at the helm of “a unified and comprehensive regulatory system for the industry.”
NBC v. United States, 319 U.S. 190, 214 (1943) (internal quotation marks omitted). Congress
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designated the FCC as the “centraliz[ed] authority” responsible for “execut[ing] and enforc[ing]”
Congress’s goals of making available “to all people of the United States . . . a rapid, efficient,
Nation-wide, and world-wide . . . radio communication service” and “promoting safety of life and
property through the use of . . . radio communication.” 47 U.S.C. § 151.
33. Personal wireless services, including what is colloquially known as “cell phone
service,” are offered on a variety of different radio frequency bands pursuant to rules and
regulations promulgated by the FCC. Both Congress and the FCC have extended their long-
standing and uniform control over wireless service to these modern technologies. In its first order
relating to commercial cellular service, the Commission expressly “assert[ed] Federal primacy in
this area,” because it was concerned that state or local regulation of this technology “would . . .
direct[ly] conflict with [the Commission’s] attempt . . . to establish a nation-wide system of radio
communications.” Future Use of Frequency Band 806-960 MHz, 46 F.C.C.2d 752, 766-67 (¶¶ 43,
44) (1974).
34. The federal government, either through legislation or through rule-making and
spectrum-licensing authority delegated to the FCC, controls and determines which radio frequency
bands shall be used for the provision of personal wireless services. See, e.g., 47 U.S.C § 303.
From time to time, the FCC makes new frequency bands available for personal wireless services.
Under the terms of the Communications Act, 47 U.S.C. § 309(j), licenses to use these new
frequencies are sold in spectrum auctions.
35. The federal government thus possesses exclusive authority to authorize and
regulate the use of the radio spectrum, including specifically the technical issues related to radio
telecommunications. See, e.g., New York SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d
97 (2d Cir. 2010). No state or local government may intrude into this federally occupied field by
attempting to regulate or block the use of particular technologies to provide wireless services. Id.
B. Federal Preemption of Local Regulation of Wireless Entry
36. In 1993,Congress reinforced federal primacy over state and local wireless
regulation by adding Section 332 to the Communications Act. See Omnibus Budget
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Reconciliation Act of 1993, Pub. L. No. 193-66, Title VI, § 6002(b), 107 Stat. 312 (1993)
(“OBRA”). Section 332(c)(3) established specific rules and classifications for personal wireless
services and divested state and local governments of the ability to act as regulatory gatekeepers for
entities wishing to provide these services.
37. Section 332(c)(3), titled “State preemption,” provides that “no State or local
government shall have any authority to regulate [1] the entry of or [2] rates charged by any
commercial mobile service.” 47 U.S.C. § 332(c)(3)(A) (emphasis added). Congress passed this
amendment to further consolidate wireless regulation at the federal level and thus “foster the
growth and development of mobile services that, by their nature, operate without regard to state
lines as an integral part of the national telecommunications infrastructure.” H.R. Rep. No. 103-
111, at 260 (1993). In the FCC’s words, Congress’s purpose in amending the Act in 1993 was to
ensure a “national regulatory policy for [wireless service], not a policy that is balkanized state-by-
state.” Petition on Behalf of the State of Conn., 10 F.C.C.R. 7025, 7034, (¶ 14) (1995) (emphasis
added); see also Conn. Dep’t of Pub. Util. Control v. FCC, 78 F.3d 842, 845 (2d Cir. 1996)
(explaining that the 1993 amendments were enacted “to dramatically revise the regulation of the
wireless telecommunications industry, of which cellular telephone service is a part”).
C. Federal Preemption of Local Roadblocks to Competition
38. With the passage of the Telecommunications Act of 1996 (the “TCA”), Congress
“created a new telecommunications regime designed to foster competition in local telephone
markets.” Verizon Maryland, Inc. v. Pub. Service Comm’n of Md., 535 U.S. 635, 638 (2002). The
express purpose of the TCA is “to promote competition and reduce regulation in order to secure
lower prices and higher quality services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications technologies.” 110 Stat. 56 (1996).
39. To ensure that its pro-competitive national policy would not be frustrated, Congress
enacted several provisions of the Act that further protect carriers from unjustified local and state
barriers to entry.

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1. Section 253: Prohibition On Barriers To Entry
40. Section 253 of the Act preempts any State or local law or legal requirement that
“may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service.” 47 U.S.C. § 253(a). Commercial mobile wireless
services, like those provided by Verizon Wireless, are “telecommunications services.”
41. Section 253(a) preempts state and local regulations that not only prohibit outright
the ability of any entity to provide telecommunications services, but also those that have the effect
of prohibiting the provision of such services. Thus, a carrier need not show a complete or express
ban in order to make out a claim of “effective prohibition” under Section 253.
2. Section 332(c)(7): Restrictions On Individual Siting Decisions
42. The TCA also added § 332(c)(7) to the Act, which confers additional protections
on wireless carriers beyond those accorded to all telecommunications carriers in § 253(a). Section
§ 332(c)(7) specifically addresses local decisions on particular applications for permits to install
wireless communications facilities.
43. Congress enacted § 332(c)(7) because it recognized that state and local
governments could frustrate the rapid deployment of a wireless network not only by promulgating
burdensome statutes and ordinances, but also by applying zoning requirements in such a way as to
deny wireless providers the ability to construct essential wireless communications infrastructure.
While Congress generally preserved local zoning authority over traditional land-use matters, such
as visual impacts, in Section 332(c)(7) it imposed several substantive and procedural limitations
on local decisions in order to ensure that those decisions do not frustrate the Act’s pro-competitive
goals. Three of these limitations are of particular relevance here.
44. Section 332(c)(7)(B)(iii) provides that any denial of an application to install or
modify a wireless facility “shall be in writing and supported by substantial evidence contained in a
written record.”
45. Section 332(c)(7)(B)(i)(II) provides that local government regulation “shall not
prohibit or have the effect of prohibiting the provision of personal wireless services.”
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46. 332(c)(7)(B)(i)(I) provides that local government regulation “shall not
unreasonably discriminate among providers of functionally equivalent services.”
47. In a decision interpreting aspects of Section 332(c)(7), the FCC recently explained
that “personal wireless service providers have often faced lengthy and unreasonable delays in the
consideration of their facility siting applications, and that the persistence of such delays is
impeding the deployment of advanced and emergency services.” Petition for Declaratory Ruling
to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt
Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as
Requiring a Variance (“Shot Clock Ruling”), 24 FCC Rcd. 13994 (2009) (¶ 32).
VI. THE CITY’S UNLAWFUL ORDINANCE
48. Albany enacted the Ordinance in 2005 in response to public opposition to the
installation of new wireless facilities and their perceived adverse health effects. In its zeal to seal
off the City to new wireless facilities and services, Albany has gone far beyond its legitimate
zoning authority and has violated federal law. The City deliberately intrudes into the most basic
operational and technical aspects of wireless network development and deployment. It employs
outright prohibitions, improper standards and burdens of proof, and Byzantine processes to
discourage deployment and upgrading of wireless facilities in the City needed for service to the
public. This City has also overstepped its role by regulating far beyond traditional aesthetic or
land use concerns. The City claims the authority to dictate the type of technology and the kind of
services that may be provided within its borders. It is doing exactly what the district court and the
Second Circuit found was unlawful in the Clarkstown case. Town of Clarkstown, 612 F.3d at 105.
49. The Ordinance violates federal law in a variety of interrelated ways. The starkest
example is a simple, broad prohibition on wireless facilities in any residential zone. The only
exception is when an applicant provides technical evidence satisfactory to the City showing “a
clear need for this facility and the infeasibility of locating it elsewhere.” Thus, the carrier is
charged with proving an almost impossible negative. This standard is far more restrictive than the
showing required to demonstrate an unlawful prohibition of service under 47 U.S.C. §
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332(c)(7)(B)(i)(II), which requires only that the proposed facility is the least intrusive alternative,
not the only alternative. As the great majority of the City’s land area is residentially zoned, the
Ordinance effectively prohibits wireless facilities in most of the City.
50. Even in the limited portion of the City that is theoretically available for wireless
infrastructure, the Ordinance imposes additional barriers that make it effectively impossible to
place or upgrade wireless facilities. These include requiring the “maximum achievable setback”
from any permitted child care facility, school, or residential zone; a separate 50-foot residential
setback for facilities within the San Pablo Commercial and Solano Commercial zones; and proof
that the applicant needs to build or modify its facility in order to provide service within the Albany
city limits.
51. Moreover, the Ordinance imposes a burdensome, complicated, costly, and time-
consuming process for every request to place or modify a wireless facility. Nowhere does the
Ordinance impose any outside time limit on the required processes to ensure that applications are
reviewed and acted on within a reasonable period of time in compliance with federal law. See
Shot Clock Ruling, 24 FCC Rcd at 13995 (¶ 4) (generally requiring localities to act on completed
applications within 90 days (in the case of collocations) or 150 days (for siting applications other
than collocations)).
52. As clearly illustrated by the facts in this case, the Ordinance’s permitting process
does not include meaningful distinctions between applications to construct a new tower, a new
facility that collocates on an existing structure (even those that are completely camouflaged within
such structure), and a simple request to upgrade existing antennas on a previously approved
facility. No matter how small the modification or how well hidden the facility, each application is
subject to a maze of burdensome application submittal requirements, consultants retained at the
applicant’s expense, certifications, public notifications, hearings, and the requirement of a
discretionary use permit in all cases.
53. Finally, the Ordinance intrudes directly into the technical and operational aspects of
wireless technology. The Ordinance purports to limit facilities within Albany to providing service
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within the Albany city limits, requires them to specify the type, manufacturer, and model number
of antennas and other equipment used to service their customers, seeks to prevent any upgrade in
technology or new services at facilities that existed as of the date of its enactment, and requires
costly and burdensome discretionary review of any such upgrades, regardless of whether they have
any visual, noise, or other impacts properly regulated under the Ordinance.
54. As set forth below, the Ordinance is preempted by federal law in a number of ways
and should be enjoined by this Court. The foregoing examples of the flaws in the Ordinance
which render it unenforceable are not intended to provide an exhaustive account.
VII. PROLONGED REVIEW AND UNLAWFUL DENIAL OF THE APPLICATION
55. The burdens imposed by the Ordinance are well illustrated by the City’s lengthy
review and ultimate denial of the simple request by Verizon Wireless to upgrade the antennas at its
Existing Facility.
56. On June 22, 2009, Verizon Wireless, through its agent and landlord Crown,
submitted an application for a conditional use permit (“CUP”) to replace the four existing antenna
panels with four new ones, and to add two additional antenna panels for a total of six. Verizon
Wireless needed to upgrade its antennas in order to provide 4G LTE service. Because it cannot
provide 4G LTE service using the existing antennas, Verizon Wireless has a significant gap in 4G
LTE coverage in the area served by the Existing Facility.
57. The City engaged consultant Jonathan Kramer to review the application. In a
report dated February 8, 2010, Mr. Kramer concluded that the proposal would comply with FCC
limits on RF emissions, that the increase from four to six panels “will not materially or
substantially alter the existing aesthetics of this site,” and that the City should approve it.
58. The Albany Planning Commission reviewed the application on April 27, 2010.
Despite a report from planning staff recommending approval, the Commission took no action.
Some Commissioners expressed concern that the proposed addition of two antenna panels was an
expansion of a legal non-conforming use, and continued the item to May 25, 2010, for further
discussion. The May 25, 2010 hearing date was continued to June 22, 2010, and then
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subsequently to a future undetermined date.
59. Following the April 27
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hearing, Verizon Wireless revised its plans to eliminate the
need for the two additional antenna panels, concluding it could fill the gap in 4G LTE service by
replacing the four existing panels with four newer models of substantially the same size and
appearance. Since this type of like-for-like swap of physically similar antenna panels is a routine
part of maintaining its network, Verizon Wireless believed it could perform the work without
permits, in accordance with the exemption for “routine maintenance” under the City’s Ordinance.
Verizon Wireless therefore commenced the work, but the City issued a stop-work order on
September 24, 2010.
60. On October 14, 2010, Verizon Wireless submitted its revised plans to the City, in
which it proposed the four-panel swap. At a hearing on October 26, 2010, the Planning
Commission determined that the proposed swap constituted maintenance, which the Ordinance
exempted from the requirement for a use permit. The Commission authorized planning staff to
approve the work with a ministerial permit. Since the Commission had determined that no use
permit was required, Crown withdrew the use permit application on behalf of Verizon Wireless.
61. On November 1, 2010, in a closed session of the Albany City Council (the
“Council”), a Council Member requested that the Council review the Planning Commission’s
decision.
62. At a subsequent hearing on December 13, 2010, the Council reversed the Planning
Commission and determined that the proposed like-for-like swap would require a CUP. Prior to
this hearing, City planning staff advised the Council that “the key issue is whether the replacement
of four existing antenna enclosures with four similar looking, but technologically updated antenna
enclosures, triggers a need for a new conditional use permit.” Staff Report for December 13,
2010, Council hearing, at p. 3 (emphasis added). Planning staff conceded that there would be no
adverse visual impact, and possibly even some improvement: “In terms of placement and design,
the appearance of the facility will not change. In addition, the applicant has offered to reduce the
length of the support brackets, bringing the antenna enclosures in closer to the pole. Although it
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does not change the height, which is the primary area of non-conformity, changing the brackets
would be a modest aesthetic improvement.” (Id., p. 5.) In reversing the Commission, the Council
did not even suggest that the upgrade would cause any adverse visual or other impacts. Instead, its
decision was based entirely on the finding that Verizon Wireless sought to upgrade its technology
in order to provide new services from the Existing Facility.
63. On January 20, 2011, Verizon Wireless, through its agent Crown, filed another
CUP application (the “Application”) seeking approval for the same four-panel swap the Planning
Commission had previously approved. It did so under protest, expressly noting its position that no
CUP was required for this routine maintenance.
64. On July 26, 2011, the Planning Commission considered the four-panel swap for the
second time. In a staff report for that hearing, City Planning Staff conceded that the FCC “is the
primary regulator of wireless communications, including the design and operation of equipment.”
(Staff Report for the July 26, 2011, Planning Commission hearing, p. 2.) Nonetheless, the
Commission denied the Application on the basis that the Council had determined that replacing
the antenna panels constituted an upgrade in technology rather than maintenance, and that the
panels would be installed above the height limit, ignoring the fact that they would simply replace
existing panels of substantially the same size with no increase in height, visual impact, or any
other characteristic of legitimate concern to the City.
65. Verizon Wireless, through its agent Crown, filed a timely appeal to the Council,
which first reviewed the Application at a hearing on September 19, 2011. At the hearing,
representatives of Crown and Verizon Wireless, including a Verizon Wireless RF engineer,
explained the need for the antenna replacement, and the absence of any feasible alternatives.
Despite their consistently stated position that alternative locations were an irrelevant consideration
for this minor equipment upgrade, the Crown and Verizon Wireless representatives explained their
review of both on-site and off-site alternatives in a level of detail that would have been appropriate
if they were proposing a new, free-standing wireless facility.
66. The on-site alternative of lowering the antennas to the height limit of 48 feet was
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not feasible because MetroPCS already had its antennas at approximately that level and, even if it
did not, lowering the Verizon Wireless antennas to that level would markedly shrink the coverage
“footprint” of the Existing Facility and compromise existing service.
67. The numerous off-site alternatives considered would either be prohibited by the
City’s restrictive Ordinance (as in the case of a new monopole), or would not provide adequate
coverage, either due to inadequate height, distance from the coverage target, or proximity to other
nearby facilities (which can create signal interference).
68. Moreover, any off-site alternative would be inconsistent with the preference for
collocation under the Ordinance, and would necessarily be more intrusive than simply replacing
the existing four antenna panels with physically similar ones. For these reasons, the Crown and
Verizon Wireless representatives explained replacing the antennas represented the least intrusive
means of providing the needed 4G LTE coverage.
69. The Council chose not to accept this overwhelming evidence. Instead, it continued
the hearing so that its supposed expert, Jonathan Kramer, could review the underlying technical
data on which Crown and Verizon Wireless based their testimony. On September 22, 2011, the
City demanded that Verizon Wireless provide Mr. Kramer with a host of technical data, most of
which would have been extremely burdensome to produce and would have been completely
unnecessary to any rational evaluation of the simple replacement of existing antenna panels with
no discernible impacts. This included, among other burdensome busy-work, coverage maps for
each of the numerous off-site alternatives, and documentation of inquiries to landlords for each
alternative, even though each of these had been rejected because new antennas at the City’s 48-
foot height limit could not conceivably provide 4G LTE coverage equivalent to the proposed
antennas centered at 59 feet, with their tops extending to 61 feet.
70. Verizon Wireless responded with a letter from its RF Engineer dated October 3,
2011, explaining in detail the basis for his conclusion that each of the alternatives was infeasible,
and also explaining why most of the information requested by Mr. Kramer was unnecessary and
irrelevant to any such determination.
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71. In a report dated November 2, 2011, Mr. Kramer opined that because Verizon
proposed to “deploy an entirely new radio service on a new band of operations,” the work did not
qualify as maintenance. He also concluded that it would actually increase the number of antennas
because each of the four panels would enclose more than one antenna (though elsewhere in his
report he described the proposal as a “four (4) antenna configuration”); that Verizon Wireless had
failed to provide sufficient information to establish the absence of off-site alternatives; and that its
antenna replacement would have a negative visual impact.
72. Mr. Kramer’s conclusion concerning the purported negative visual impact was not
only in direct contradiction to his own previous report (which he sought to explain on the basis
that he had not visited the site before issuing the earlier report, and that it involved installing six
antennas rather than four), but was the first time any City representative had even suggested that
visual impact was an issue with the Application. Notably, Mr. Kramer did not base his finding of
visual impact on the antennas themselves, but on the coaxial cables that would be attached to
them, and the manner of attaching them to the antennas. Mr. Kramer ignored the facts that the
new cables would be less than one inch in diameter, identical to those already on the monopole
(and similar to ordinary television cables), and would be attached to the new antennas in exactly
the same manner and location as those presently attached to the existing antennas.
73. At a hearing on November 7, 2011, the Council voted to deny the appeal and the
Application, and adopted a resolution memorializing that decision (the “Decision”). The Decision
relied expressly on Mr. Kramer’s report and his testimony at the hearing, adopting his reasoning
almost verbatim for the key findings that: (a) the antenna replacement would not involve
maintenance but rather an upgrade to new technology using a different frequency and therefore
would require a CUP; (b) it would increase the visual impact of the Existing Facility; and (c)
Verizon Wireless did not adequately demonstrate the absence of feasible alternatives in order to
qualify for an exception to the height limit.
VIII. IRREPARABLE INJURY, PUBLIC INTEREST, AND BALANCE OF HARDSHIPS
74. As a result of the City’s actions, Verizon Wireless has been, and will continue to be
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damaged and irreparably harmed absent the relief requested herein. The harm caused by the
City’s unlawful actions includes, but is not limited to, impairment of Verizon Wireless’s: (a)
ability to provide its customers in the City with the enhanced fourth-generation wireless
broadband service available elsewhere in the Bay Area and Nation; (b) ability to compete with
other providers of telecommunications services; (c) full use of its existing licenses and business
investments; and (d) good will and business reputation.
75. The harm that the City’s actions have caused Verizon Wireless is not reasonably
susceptible to accurate calculation, and cannot be fully and adequately addressed through an award
of damages.
76. Moreover, the public interest in promoting competition, lower prices, and rapid
deployment of new technology in the telecommunications arena – the express goals of the
Telecommunications Act – has been irreparably harmed and will continue to be irreparably
harmed by the City’s unlawful actions. Verizon Wireless’s present and future customers, as well
as the public at large, are significantly prejudiced by the City’s unlawful conduct.
77. In addition, wireless telecommunications are an important component of
emergency response systems and provide a vital alternative to traditional land lines during fires,
earthquakes, and other natural and man-made disasters. By preventing Verizon Wireless from
installing equipment needed to provide improved service, the City’s unlawful actions are causing
irreparable harm to the public interest in reliable emergency and first responder communications.
78. In contrast to the immediate and irreparable injury being suffered by Verizon
Wireless, its customers, and the public interest, the City will suffer no injury if the Court issues the
requested declaratory and injunctive relief. The replacement of four antenna panels with four
newer models of virtually identical size and appearance will have no visual or other impacts, and
the level of technology, frequencies used and services provided by the Existing Facility are
beyond the City’s legitimate authority to regulate.
IX. ALLEGATIONS SUPPORTING DECLARATORY RELIEF
79. A present, actual controversy has arisen and now exists between the parties
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regarding their respective legal rights and duties. Verizon Wireless contends that the City’s
actions were preempted by and in violation of the Act. On information and belief, the City denies
such allegations.
80. Verizon Wireless has been and will continue to be adversely affected by the City’s
unlawful acts.
81. Accordingly, declaratory relief is appropriate and necessary to adjudicate the extent
of Verizon Wireless’s rights and the City’s duties and authority.
COUNT ONE
(Preemption Under 47 U.S.C. § 253 and the Supremacy Clause)

82. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
83. Section 253 of the Communications Act expressly commands that “[n]o State or
local statute or regulation, or other State or local legal requirement, may prohibit or have the effect
of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications
service.” 47 U.S.C. § 253(a).
84. The Ordinance purports to regulate and limit telecommunications service
providers’ facilities and technologies, imposes unduly burdensome requirements that rise to the
level of a prohibition, imposes unlawful discrimination, and permits the City to restrict and
prohibit telecommunications services offered.
85. On information and belief, no wireless siting applications have been approved by
the City since the enactment of the Ordinance.
86. To the extent that the Ordinance purports to give the City authority to regulate and
limit telecommunications service providers’ facilities and technologies, imposes unduly
burdensome requirements that rise to the level of a prohibition, imposes unlawful discrimination,
or otherwise restricts and prohibits telecommunications services offered, the Ordinance is
preempted under Section 253.
87. The Decision also constitutes further evidence that the Ordinance as a whole
operates as an “effective prohibition” within the meaning of Section 253.
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88. The Ordinance prohibits and has the effect of prohibiting the provision of wireless
telecommunications services under Section 253 of the Communications Act, and is also preempted
under the Supremacy Clause of the U.S. Constitution.
COUNT TWO
(Preemption Under 47 U.S.C. § 332(c)(3) and the Supremacy Clause)

89. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
90. Section 332(c)(3)(A) of the Communications Act states that “no State or local
government shall have any authority to regulate the entry of or the rates charged by any
commercial mobile service.” 47 U.S.C. § 332(c)(3)(A).
91. Technical regulation of wireless services as a condition precedent to providing
service is “entry” regulation of the type prohibited by Section 332(c)(3)(A).
92. Restrictions or prohibitions on the ability to offer any commercial mobile service is
“entry” regulation of the type prohibited by Section 332(c)(3)(A).
93. The Ordinance imposes and permits technical regulation of a commercial mobile
service or services in the City, in violation of 47 U.S.C. § 332(c)(3)(A). The Decision is based on
and includes technical regulation of wireless services in the City as a condition precedent to
providing service, and is “entry” regulation of the type prohibited by 47 U.S.C. § 332(c)(3)(A). It
regulates technical and operations aspects of commercial mobile service or services in the City, in
violation of 47 U.S.C. § 332(c)(3)(A).
94. The Ordinance and the Decision regulate, restrict, and limit the provision of a
commercial mobile service or services, in violation of 47 U.S.C. § 332(c)(3)(A).
95. The Ordinance and the Decision constitute barriers to entry that are prohibited by
47 U.S.C. § 332(c)(3)(A).
96. The Ordinance and Decision are preempted by 47 U.S.C. § 332(c)(3)(A) and the
Supremacy Clause.


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COUNT THREE
(Field Preemption of the Ordinance and the Supremacy Clause)

97. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
98. At the direction of Congress, federal law has completely occupied the field of
wireless licensing and the field of regulation concerning the technical and operational aspects of
wireless telecommunications service. No state or local government may regulate these matters.
99. The Ordinance and the Decision condition, regulate, and restrict federally licensed
activities, and regulate the technical and operational aspects of wireless telecommunications
services.
100. The Ordinance and the Decision intrude into a field occupied exclusively by the
federal government and are preempted by the Supremacy Clause of the U.S. Constitution.
COUNT FOUR
(Agency Preemption of the Ordinance and the Supremacy Clause)

101. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
102. Pursuant to its broad Congressional mandate to regulate wireless communications,
the FCC has promulgated technical and operational standards for wireless telecommunications
service and has made clear that these regulations are preemptive and that local governments have
no authority to establish or enforce technical standards for wireless service. See, e.g., In re Future
Use of Frequency Band 806-960 MHZ, 46 FCC 2d 752, 766-67 (¶¶ 43, 44) (1974) (the FCC’s
“technical standards and . . . operational rules are to apply nation-wide . . . without regard to state
boundaries or varying local jurisdictions.”); Use of the Bands 825-845 MHz and 870-890 MHz, 86
FCC 2d 469, 503-05 (¶¶ 79, 82) (1981) ( “asserting federal primacy over the areas of technical
standards and competitive market structure for cellular service”); Use of the Bands 825-845 MHz
and 870-890 MHz, 89 FCC 2d 58, 95 (¶ 81) (1982) (“It is imperative that no additional
requirements be imposed by the states which could conflict with our standards and frustrate the
federal scheme for the provision of nationwide cellular service.”).
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103. The FCC has imposed both general and specific requirements and duties on the
holders of wireless licenses, including “build out” obligations that require a licensee to begin
offering service using licensed spectrum within a set period of time, and has also affirmatively
determined not to regulate certain aspects of wireless telecommunications services.
104. The FCC’s administrative orders and regulations have the same preemptive effect
as other federal laws, and its regulations “will pre-empt any state or local law that conflicts with
such regulations or frustrates the purposes thereof.” City of New York v. FCC, 486 U.S. 57, 64
(1988). The decision not to regulate can have the same preemptive effect as a decision to impose
regulation.
105. The Ordinance and Decision purport to regulate the technical and operational
aspects of wireless networks, conflict with both general and specific FCC orders, frustrate the
objects and purposes of the Communications Act as implemented by the FCC, and are thus
preempted by the Supremacy Clause of the U.S. Constitution.
COUNT FIVE
(Denial Not Based On Substantial Evidence In Violation Of 47 U.S.C. § 332(c)(7)(B)(III))

106. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
107. The Application constitutes a request for the placement of a personal wireless
services facility and, as such, Verizon Wireless is entitled to the benefits and protections of the
TCA with respect to such application.
108. The Decision was not based on substantial evidence to the extent it relied on the
opinion of Jonathan Kramer. On information and belief, Mr. Kramer lacks the necessary
qualifications to render an expert opinion on either the aesthetic or technical aspects of the
Application. In addition, his opinion was internally inconsistent, ignored important facts, and
otherwise inadequate to constitute substantial evidence.
109. The finding of increased visual impact lacks any factual basis, and is contrary to the
City’s prior finding that the MetroPCS facility would have no such impact, the admissions of
planning staff in reviewing the Verizon Wireless Application, and the admissions of Mr. Kramer
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in reviewing the previous Verizon Wireless proposal to install six antenna panels instead of four.
110. The Decision was contrary to established California law recognizing the vested
right to continue a legal non-conforming use barring any physical expansion or change in use, and
that “one entitled to a nonconforming use has a right to . . . engage in uses normally incidental
and auxiliary to the nonconforming use . . . .” Hansen Brothers Enterprises, Inc. v. Board of
Supervisors of Nevada County, 12 Cal. 4
th
533, 565 (1996) (quoting 8A McQuillin, Municipal
Corporations (3d ed. 1994) § 25.200, p. 89) (italics added by the Court). The addition of 4G LTE
antennas to an existing cell site is neither an expansion nor a change in the use.
111. In addition, the operation of a cell site includes the right to replace antennas and
make other routine equipment upgrades. Under California law, rights concerning the construction
and deployment of telecommunications services incorporate the “natural evolution of
communications technology.” Salvaty v. Falcon Cable Television, 165 Cal. App. 3d 798, 803
(1985); see also Williams Communications, LLC v. City of Riverside, 114 Cal. App. 4th 642, 653
(2004).
112. To the extent the Decision reflects an effort by the City to regulate and restrict the
technology used by Verizon Wireless it is also preempted by federal law, as set forth in more
detail in Counts One through Four of this Complaint.
113. Thus, the Decision was not based on substantial evidence and therefore violated 47
U.S.C. § 332(c)(7)(B)(iii).
COUNT SIX
(Prohibition of Service in Violation of 47 U.S.C. § 332(c)(7)(B)(i)(II))

114. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs
as if fully restated herein.
115. The Decision prohibits Verizon Wireless from making technical and operational
changes that are necessary in order to provide new personal wireless services and to continue
providing existing personal wireless services.
116. The Decision expressly denies Verizon Wireless’s “propos[al]” of “an altogether
new deployment of wireless service from the existing facility.” The City states that it is denying
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the “proposed deployment of an entirely new radio service proposed in the application.” The
Decision is keeping Verizon Wireless from offering additional wireless services.
117. Verizon Wireless has a significant gap in service in the area served by the Existing
Facility, and the Decision prevents Verizon Wireless from filling that gap by the least intrusive
means.
118. The Decision thus prohibits or has the effect of prohibiting Verizon Wireless from
providing personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).
COUNT SEVEN
(Unreasonable Discrimination in Violation of 47 U.S.C. § 332(c)(7)(B)(i)(I))

119. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs.
120. Verizon Wireless and MetroPCS are competitors and provide functionally
equivalent personal wireless services.
121. The City has permitted MetroPCS to install an array of six antenna panels on the
same pole as the Verizon Wireless Facility. Because it added new antennas to the pole, the
MetroPCS project had far more visual impact than the simple replacement of antennas proposed in
the Verizon Wireless Application.
122. By denying the Verizon Wireless Application, the City discriminated unreasonably
against Verizon Wireless in violation of 47 U.S.C. § 332(c)(7)(B)(i)(I).

PRAYER FOR RELIEF
WHEREFORE, Verizon Wireless respectfully requests that this Court enter judgment
against the City as follows:
(i) For a declaratory judgment on Count One that the Ordinance is preempted under 47
U.S.C. § 253 and violates the Supremacy Clause of the U.S. Constitution.
(ii) For a declaratory judgment on Count Two that the Ordinance and Decision are
preempted under 47 U.S.C. § 332(c)(3) and violate the Supremacy Clause of the U.S.
Constitution.
(iii) For a declaratory judgment on Count Three that the Ordinance and Decision
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regulate the technical and operational aspects of wireless service and therefore intrude into a field
exclusively occupied by federal law, conflict with federal law, violate the Supremacy Clause of
the U.S. Constitution and are preempted.
(iv) For a declaratory judgment on Count Four that the Ordinance and Decision impose
technical standards on the deployment of personal wireless facilities which are preempted by the
regulatory actions of the FCC, and violate the Supremacy Clause of the U.S. Constitution.
(v) For a declaratory judgment that the entire Ordinance is invalid based upon the
declarations sought in Counts One through Four or, in the alternative, a declaration that any
invalid portions of the Ordinance are so inextricably intertwined with the remaining provisions
that the Ordinance cannot function effectively without the invalid provisions and must therefore be
invalidated in its entirety.
(vi) For preliminary and permanent injunctive relief on all Counts enjoining the City
and any of its officers, employees, or agents from taking any action to enforce any part of
Ordinance or from taking any action that would prohibit Verizon Wireless from providing wireless
telecommunications services to any part of the City.
(vii) For a declaratory judgment on Count Five that the Decision denying the
Application was not based on substantial evidence, in violation of 47 U.S.C. § 332(c)(7)(B)(iii);
(viii) For a declaratory judgment on Count Six that the Decision had the effect of
prohibiting Verizon Wireless from providing personal wireless services, in violation of 47 U.S.C.
§ 332(c)(7)(B)(i)(II);
(ix) For a declaratory judgment on Count Seven that in denying the Application, the
City discriminated unreasonably against Verizon Wireless, in violation of 47 U.S.C. §
332(c)(7)(B)(i)(I);
(x) For preliminary and permanent injunctive relief on all Counts directing the City to
grant Verizon Wireless any and all authorizations or approvals necessary to make the changes
sought in the Application that was the subject of the City’s Decision.
(xi) For expedited review of the matters set forth in this complaint;
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(xii) Awarding Verizon Wireless the costs and disbursements incurred in connection
with this action pursuant to 28 U.S.C. § 1920; and
(xiii) Granting such other relief as this Court considers just and proper.

DATED: December 7, 2011

Mackenzie & Albritton LLP
By:
James A. Heard
Attorneys for Real Party GTE MOBILNET OF
CALIFORNIA LIMITED PARTNERSHIP,
D/B/A VERIZON WIRELESS



Case4:11-cv-06155-LB Document1 Filed12/07/11 Page27 of 35
1 RESOLUTION NO. 2011-56
2
3 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALBANY
4 DENYING THE APPEAL FILED BY CROWN CASTLE ON BEHALF OF
5 VERIZON WIRELESS AND DEl'I'YING THE APPLICATION FOR A
6 CONDITIONAL USE PERMIT AND DESIGN REVIEW TO MODIFY A
7 NONCONFORMING WIRELESS FACILITY LOCATED AT 423 SAN
8 PABLO AVENUE AND MAKING WRITTEN FINDINGS IN SUPPORT
9 THEREOF
10
11
12 WHEREAS, on June 22, 2009 Crown Castle on behalf of Verizon Wireless
I3 (the "applicant") submitted an application for a conditional use permit to increase the
14 number of antenna enclosures from four to six enclosures with ancillary
15 improvements on an existing nonconforming wireless communication facility (the
16 nonconforming wireless facility") located at 423 San Pablo Avenue (the "prior
17 application"). The existing wireless facility is nonconforming with respect to the
18 height limits of the Planning and Zoning Code which imposes a 48 foot maximum
19 height limit. The existing wireless facility consists of a 65 foot tall monopole with
20 the Verizon antennas located at a height of 59 feet on the pole;
21
22 WHEREAS, during the time that the prior application was pending before the
23 Planning and Zoning Commission, the City's building inspector observed that new
24 antennas were being installed on the nonconforming wireless facility without any
25 City approval or permits and issued a stop work order;
26
27 WHEREAS, on October 14, 20 I 0, the applicant submitted revised plans that
28 reduced the number of antenna enclosures from four to six. However, the number of
29 antennas within the four enclosures still increased from four to six antennas and the
30 new equipment proposed by the prior application deployed an entirely new wireless
31 network (called Long Term Evolution, or "LTE") that provides high speed data
32 communications as part of a 4G network;
33
34 WHEREAS, on October 26, 20 I 0, the Planning and Zoning Commission
35 reviewed the revised prior application and determined that the proposal consisted of
36 routine maintenance not requiring a conditional use permit. At the Commission
37 hearing, the applicant withdrew the prior application;
38
39 WHEREAS, on November 1,2010, pursuant to Municipal Code Section
40 20.100.080.c.2.b, Councilmember Atkinson made a request that the City Council
41 review the Commission's determination that the proposal consisted of routine
42 maintenance. All references in this Resolution to section numbers are to sections of
43 the Albany Municipal Code unless other specified;
44
45 WHEREAS, the City Council conducted its review of the Planning and
46 Zoning Commission determination on December l3, 2010. The Council voted
I
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page28 of 35
Exhibit A
id393366296 pdfMachine by Broadgun Software - a great PDF writer! - a great PDF creator! - http://www.pdfmachine.com http://www.broadgun.com
I unanimously that the proposed project was not routine maintenance but instead an
2 upgrade to the nonconforming wireless facility. The Council directed that the matter
3 be returned to the Planning and Zoning Commission after a new application was filed
4 by the applicant and that the staff and Commission review include a full analysis of
5 feasible alternative sites that would conform to all Code requirements;
6
7
8 WHEREAS, on January 20,2011, the appiicant submitted a new application
9 (the "application") which substantially reflected the revised plans submitted to the
10 City in October 2010. The application did not include an alternative sites analysis as
II directed by the Council and staff detennined that the application was not complete.
12 Correspondence ensured between the applicant and the City on the completeness of
13 the application and the applicant threatened to sue the City ifthe application was not
14 accepted as complete and submitted to the Planning and Zoning Commission for
15 revIew;
16
17 WHEREAS, on June 21, 20 II, the City accepted the application as complete
18 in order to avoid litigation and due to the fact that it was clear that the applicant
19 would continue to refuse to submit the additional information demanded by the City
20 staff. In a letter from Community Development Director Jeff Bond, dated June 21,
21 20 II, the applicant was informed that in accepting the application as complete the
22 City was not waiving its right to require more information from the applicant,
23 including the right of the Commission or Council to require the preparation of
24 alternative site studies before making a decision on the application. At this time, a
25 Tolling Agreement was entered into by the applicant and the City clarifying the time
26 period in which the City was required to take action on the application in accordance
27 with the Federal Communications Commission "Shot Clock" declaratory ruling;
28
29 WHEREAS, on July 26,2011, the Planning and Zoning Commission held a
30 public hearing on the application. The Commission voted to deny the application on
31 the basis that the existing facility is nonconforming, that the modification to the
32 facility is not merely maintenance of an existing facility at an existing wireless site,
33 and that the proposed modification is not consistent with City ordinances. The
34 Commission also determined that a sufficient alternative solutions analysis was not
35 provided by the applicant;
36
37 WHEREAS, on September 19,2011, the City Council held a de novo public
38 hearing on the appeal filed by the applicant from the Planning and Zoning
39 Commission hearing. After hearing from the applicant and members of the public,
40 the Council directed that the hearing be continued in order that an independent review
41 of the application can be conducted by a qualified technical expert hired by the City
42 and that the written documentation upon which the Verizon engineer's opinions are
43 based be provided to the City. Section 20.20.1 OO.F .4.b.1 and b.2 authorize the City
44 to require an independent review of a wireless facility application and to require an
45 alternative sites or solutions analysis. The applicant consented to the continuance of
2
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page29 of 35
I the hearing and the Tolling Agreement between the applicant and the City was
2 extended to November 9, 2011;
3
4 WHEREAS, the City retained Jonathan Kramer, a well-known and qualified
5 telecommunications and radio frequency expert, to perform an independent review of
6 the application. Mr. Kramer requested additional information from the applicant in
7 order to better understand the scope of the proposed project; to determine whether an
8 exception is warranted pursuant to Section 20.20.100.F.5.a.3; and to evaluate whether
9 alternative solutions that conform to the City's zoning requirements are feasible. The
10 applicant failed to provide most of the information requested by Mr. Kramer and
II failed to provide the supporting data and documentation for the opinions offered by
12 Verizon's engineer at the September 19,2011 public hearing; and
13
14 WHEREAS, on November 7, 2011, the City Council held the continued
15 public hearing on the appeal and application. The Council received an updated staff
16 report and the report prepared by Mr. Kramer and heard additional testimony by the
17 applicant and members of the public.
18
19
20 NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City
21 of Albany, as follows:
22
23 I. The City Council hereby denies the appeal filed by Crown Castle on behalf of
24 Verizon Wireless, and denies the application for a Conditional Use Permit and Design
25 Review for the modification of an existing nonconforming wireless facility located at
26 423 San Pablo Avenue (the "subject property"), based upon the findings set forth in
27 Sections 4,5 and 6 of this Resolution.
28
29 2. The City Council hereby relies upon, incorporates and adopts the facts set
30 forth in this Resolution, including without limitation the recitals, and finds that those
31 facts and recitals are true and correct. The City Council has considered the staff
32 reports and responses by staff to questions, the written report by Jonathan L. Kramer,
33 dated November 2,2011, and his oral testimony and responses to questions at the
34 public hearing, the presentation and written materials provided by the applicant and
35 all other testimony and information provided during the public hearing before the
36 City Council.
37
38 3. The City Council hereby finds that this project is exempt from CEQA
39 pursuant to CEQA Guidelines Section 15270(a), which exempts projects that are
40 denied by the public agency.
41
42 4. The City Council affirms its previous determination that the application does
43 not propose routine maintenance of the nonconforming wireless facility, but instead
44 proposes a significant modification and upgrade to the existing facility requiring the
45 approval of a conditional use permit and design review pursuant to Section
46 20.20.100.F. The application proposes an altogether new deployment of wireless
3
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page30 of 35
I service from the existing facility, increases the number of antennas from four to six,
2 changes the antenna type and model, degrades the visual appearance of the project
3 site which is visible and dominating above the nearby structures and is plainly visible
4 from the City's north-south arterial roadway, and results in an intensified use of an
5 existing nonconfonning structure that exceeds the Planning and Zoning Code height
6 limit by 17 feet.
7
8 5. The City Council makes the following findings pursuant to Section
9 20.20.l00.F.5 related to the requested conditional use penni!:
10
II a. The proposed project at the wireless facility is not designed to protect the
12 visual quality of the City. The existing facility exceeds the City's height
13 limit by 17 feet. Photographs of the subject property in the administrative
14 record demonstrate that the existing facility far exceeds the height of the
15 adjacent commercial and residential buildings in a visually dominating
16 manner and is unsightly and out of character with the surrounding area.
17 The proposed modification adds at least eight new coaxial and other types
18 of cables to the facility that will add to the visual clutter of the existing
19 pole. The project plans submitted by the applicant are internally
20 inconsistent. The antenna enclosures will use bottom connectors and
21 cables that are much more visible than rear mounted connectors and
22 cables. Due to the proposed deployment of an entirely new radio service
23 proposed in the application, it is anticipated that additional equipment not
24 shown in the project plans will need to be added to the pole to provide the
25 new services proposed by the application.
26
27 b. All applicable development standards required by the City Code have not
28 been met by the application. The current development standards at
29 Section 20.20.1 00.E.2.h and 4.b impose a 48 foot height limit on a
30 wireless facility located on the subject property. The existing monopole is
31 65 feet in height with the Verizon antenna enclosures located on the pole
32 at a height of 59 feet. The violation of the City's height limit requires a
33 denial of the application unless an exception is granted by the City
34 Council pursuant to the requirements in Section 20.20.100.F.5.a.3.
35 Further, the proposed project will extend the life of a nonconfonning
36 structure contrary to the purposes and requirements of Section 20.44.030.
37
38 c. Section 20.20.100.F.5.a.3 sets forth the finding that must be made to grant
39 an exception to a development standard. The Council must find that
40 "[s]trict compliance would not provide for adequate radio-frequency
41 signal reception and that no other alternative solutions which would meet
42 the development standards are feasible." The applicant has the burden of
43 proof to show that this finding can be made, and why it should be made.
44 Not only has the applicant failed to demonstrate that this finding is met,
45 but the report by Mr. Kramer and other evidence in the record
46 demonstrates that a sufficient alternative solutions analysis has not been
4
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page31 of 35
2
3
4
5
6
7
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·9
10
II
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d.
completed that would enable the Council to make the required
determination that no other alternative solutions which would meet the
development standards (including the height limit) are feasible. The
findings and conclusions described in Mr. Kramer's report, dated
November 2, 20 II, as clarified by Mr. Kramer during the hearing, are
hereby adopted and incorporated into these findings of the City Council.
The Council further finds:
1. The applicant has refused and failed to provide the data and
other documentation supporting the opinions offered by
Verizon's engineer Mr. Stefano lachelJa as requested by the
City Council at its September 19, 2011 hearing on the
application. It is not possible to evaluate the accuracy of
the opinions expressed by Mr. Iachella without knowing
the data and documentation upon which his opinions are
based.
11. The applicant failed to provide signal coverage maps based
on individualized coverage studies for each of the seven
alternative sites identified by the applicant. Instead, the
applicant simply used the coverage study it prepared for the
subject property and applied it to the alternative sites. This
approach fails to take into account the different topography,
elevation, and surrounding development and natural
features of each site that will affect signal coverage from a
particular site.
111. The applicant failed to consider or evaluate the signal
coverage that would result from maintaining the existing
facility in an "as is" condition on the subject property and
installing a new wireless facility that confonns to all
development standards on an alternative site.
The modification of the existing nonconforming wireless facility is not
necessary for the provision of wireless communications services to Albany
residents and businesses or other persons traveling in or about the City.
The existing facility currently is providing wireless services to the area of
the City shown on the coverage map for the subject property provided by
the applicant. The denial of the application will not affect in any manner
this existing service and coverage. As described above, the applicant has
failed to show why it cannot provide the new services it proposes to
provide from one or more alternative sites in the City or adjacent
communities in a manner that complies with all development standards,
including but not limited to the height limitation.
5
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page32 of 35
1 6. The City Council makes the following findings pursuant to Section
2 20.1 00.050.E related to the requested Design Review:
3
4
5
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7
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35
7.
a. The proposed project does not conform to the applicable provisions of the
Planning and Zoning Code as the proposed modification to an existing
nonconforming wireless facility violates the height limitation imposed by
Section 20.20.1 OO.E.2.h and 4.b. The proposed project also violates the
nonconfonning structure requirements of Section 20.44.030 as the
proposed project does not constitute maintenance for the reasons stated in
Section 4 of this Resolution.
b. Approval of the project is not consistent with the purpose and intent of
Design Review and is not in the interest ofthe public health, safety and
general welfare. The existing facility exceeds the City's height limit by 17
feet. Photographs of the subject site presented at the hearing demonstrate
that the existing facility far exceeds the height ofthe adjacent commercial
and residential buildings in a visually dominating manner and is unsightly
and out of character with the surrounding area. The application adds
eight new coaxial cables to the facility that will add to the visual clutter of
the existing pole. The antenna enclosures will use bottom connectors that
require substantially more visible antenna cables as compared with rear
mounted connectors. Due to the significant service upgrade proposed by
the application, it is anticipated that additional equipment will need to be
added to the pole to provide the new advanced services proposed by the
application. Further, the proposed modification and upgrade to the
existing nonconforming wireless facility will improve, upgrade and extend
the life of a nonconforming structure contrary to the purposes and
requirements of Section 20.44.030. The proposed modification and
upgrade also is contrary to general planning and zoning principles under
California law that encourage the replacement of nonconfonning
structures with new development that will conform to current Code
requirements.
This Resolution shall take effect immediate! y upon its adoption.
6
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page33 of 35
I
2
3
4
5
6
7
8
9
I HEREBY CERTIFY that the foregoing Decision was duly adopted by the
City Council of the City of Albany at a public meeting of said City Council held on
the 7th day of November, 2011, by the following vote:
AYES: CClll)U lY\eMw A+kt),svY\ I Lie-ber. Thc ...... W.Lc. & f'Il.'"jcf JCuftuldoJ
NOES:
ABSENT:
10
II ABSTAIN:
12
14
13
15
16 MAYOR
17
18
19
20
21
22 City Clerk
23
24 , __ ---)
APPROVED AS TO FORM: rJe:;::r
27 7
28 Robert Zweben
29 City Attorney
30
7
Case4:11-cv-06155-LB Document1 Filed12/07/11 Page34 of 35
1000 San Pablo Avenue
(510) 528-5710
RESOLUTION NO. 2011-56
Albany, California 94706
www.albanyca.org
PASSED AND APPROVED BY THE COUNCIL OF THE CITY OF ALBANY,
this 7th day of
November, 2011 , by the following votes:
AYES: Council Members Atkinson, Lieber, Thomsen, Wile and Mayor J avandel
NOES:
ABSENT:
WITNESS MY HAND AND THE SEAL OF THE CITY OF ALBANY, this
8th Day of November, 2011.
Eileen Harrington
DEPUTY CITY CLERK
The City olAlbany is dedicated to maintaining its small town ambience, responding to the needs of a
diverse community, and providing a safe, healthy and sustainable environment.
®
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