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Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 1 of 27

UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK

CELLCO PARTNERSHIP D/B/A VERIZON


WIRELESS,

Plaintiff,

v. DOCKET NO.:

CITY OF ROCHESTER,

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff Cellco Partnership d/b/a Verizon Wireless (“Verizon Wireless” or “Plaintiff”), by

and for its Complaint against defendant City of Rochester (“Defendant” or the “City”), respectfully

alleges as follows.

1. This action arises from Defendant’s adoption of a city ordinance that violates, and

is preempted by, federal law. In particular, the City has adopted provisions applicable to wireless

network infrastructure1 deployment within Sections 106-1 through 106-42 of the

Telecommunications Code of the City of Rochester, New York (the “Code”) that violate Section

253 of the Federal Communications Act of 1934, as amended (the “Communications Act”), 47

1
“Wireless network infrastructure,” as used herein, includes, without limitation, Small Wireless
Facilities (see 47 C.F.R. § 1.6002(l) (defining “Small Wireless Facilities”)) and other wireless
transmission and reception facilities and wireline (fiber) facilities connecting these wireless
facilities with networking equipment, which are deployed underground or aerially (on poles).
Small Wireless Facilities are characterized in these rules by features such as limits on the
maximum size of the antenna (no more than three cubic feet in volume) and the structure to which
they are attached (e.g., 50 feet or less in height and no more than 10 percent taller than other
adjacent structures).
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U.S.C. § 253 (“Section 253”). Section 253 bars local governments from imposing statutes,

regulations, or requirements that prohibit or have the effect of prohibiting the provision of

telecommunications services.2 In interpreting and implementing Section 253, the Federal

Communications Commission (“FCC”) has recognized “that a . . . local legal requirement

constitutes an effective prohibition [in violation of Section 253] if it ‘materially limits or inhibits

the ability of any competitor or potential competitor to compete in a fair and balanced legal and

regulatory environment.’” Accelerating Wireless Broadband Deployment by Removing Barriers

to Infrastructure Investment et al., WT Docket No. 17-79, FCC 18-133, 33 FCC Rcd 9088, 9102

¶ 35 (Sep. 27, 2018) (the “FCC Ruling/Order”). And the FCC has confirmed that a local

government’s imposition of the following fees constitute just such a material limitation or

inhibition on providers’ ability to compete, in violation of Section 253: (a) fees that do not reflect

a reasonable approximation of a state or local government’s objectively reasonable costs of

maintaining the rights-of-way used or occupied by a telecommunications service provider,

maintaining a structure within the rights-of-way used or occupied by a telecommunications service

provider, or processing an application or permit by a telecommunication services provider or (b)

fees that are discriminatory. Id. at 9104 ¶ 37; id. at 9112 ¶ 50; id. at 9125 ¶ 72. Here, the Code

violates Section 253 by, among other things, imposing upon wireless providers non-cost-based

fees on the deployment and maintenance of Small Wireless Facilities and wireline facilities

connecting Small Wireless Facilities with network equipment that are deployed underground or

aerially in the public rights-of-way, into an operational network.

2
See 47 U.S.C. § 153(53) (defining telecommunications service).
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2. Verizon Wireless thus seeks declaratory relief that various provisions of the Code

violate, and are preempted by, Section 253 and injunctive relief prohibiting Defendant from

enforcing those provisions of the Code.

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 because this is a civil action that presents federal questions arising under the Communications

Act.

4. This Court has authority to issue declaratory and injunctive relief pursuant to 28

U.S.C. §§ 2201, 2202.

5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the claims stated

herein arose in the judicial district for the United States District Court, Western District of New

York, and Defendant resides in this district.

THE PARTIES

6. Plaintiff Verizon Wireless is a Delaware general partnership, with a primary

corporate address at One Verizon Way, Basking Ridge, New Jersey 07920. Verizon Wireless

constructs and deploys wireless and other facilities for the provision of telecommunications

services to the public as that term is defined and used in Sections 153 and 253 of the

Communications Act.

7. Defendant City of Rochester is a municipal corporation organized under the laws

of the State of New York, with its principal place of business located at City Hall, Rochester, New

York.

RELEVANT BACKGROUND

I. THE NEED TO DEPLOY 5G AND OTHER NEXT-GENERATION WIRELESS


NETWORK INFRASTRUCTURE TO PROVIDE TELECOMMUNICATIONS
SERVICES IN ROCHESTER

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8. There are more than 400 million connections to wireless network infrastructure in

the United States—far more than the total population—over which telecommunications and

ancillary services are offered, and the number of such connections grows annually.

9. Connections to wireless network infrastructure, and the telecommunications and

ancillary services offered over them, are a critical means by which Americans engage with each

other, reach 911 emergency services, and obtain broadband data access to the Internet and a

multitude of smartphone applications. In 2017, mobile wireless data usage per smartphone rose

to an average of 5.1 GB per subscriber per month, an increase of over 30% from the prior year.3

This upward trend is expected to continue and accelerate.

10. Consumers everywhere rely on wireless network infrastructure, and their increasing

use of such infrastructure has created urgent and unprecedented pressure on providers like Verizon

Wireless to expand network capacity and capabilities to meet the rising demand. Verizon Wireless

is accomplishing this, in part, by “densifying” its wireless network infrastructure with Small

Wireless Facilities, by deploying the next-generation technology—known as “Fifth Generation”

or “5G” —and by installing fiber optic cable to connect Small Wireless Facilities to their wireless

networks.

11. Densification of wireless network infrastructure to support next-generation services

requires the deployment of substantially larger numbers of Small Wireless Facilities within a given

area than current wireless networks. These new wireless facilities are smaller, operate closer to

the ground, and use less power than current wireless facilities, which we refer to herein as “Macro

3
See Communications Marketplace Report, GN Docket No. 18-231, WT Docket No. 18-203, MB
Docket No. 17-214, MB Docket No. 18-227, IB Docket No. 18-251, FCC 18-181, 11 ¶ 12 (Dec.
26, 2018).
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Cells.”4 Like Macro Cell wireless facilities, each Small Wireless Facility must be connected to

the wireless provider’s other network equipment so that phone calls and other services (e.g., access

to the Internet) can be completed. While wireless calls and other wireless services may start or

end with a wireless device sending or receiving a wireless signal to or from Macro Cells or Small

Wireless Facilities, those calls and services typically are carried over wireline facilities in between

those wireless facilities. So, for example, when a wireless phone user places a call to another

wireless phone user, the signal is transmitted from the user wirelessly to the nearest wireless

facility and then is carried via wireline facilities to the Macro Cell or Small Wireless Facility

closest to the call recipient, where it then is transmitted wirelessly to the recipient’s wireless phone.

For a call between a wireline phone user and a wireless phone user, but for the connection between

the wireless phone user and the Macro Cell or Small Wireless Facility, the entire call may be

carried over wireline facilities, including such facilities of the wireless carrier. That connection

and carriage of traffic from and/or to the wireless network over the core wireline network is

referred to as “backhaul.” Backhaul for modern wireless networks is typically provided by fiber

cables, often located in public rights-of-way.5 And because a Small Wireless Facility will not

operate unless it is connected to the larger network, fiber backhaul is crucial for achieving the full

benefits of 5G.

12. 5G networks are up to 100 times faster than 4G networks and have very low latency

(transmission delay), which permits the offering of a wide range of innovative services. According

4
Prior to densification to support 5G and enhanced 4G technologies and services, the wireless
network infrastructure of Verizon Wireless and many other wireless service providers has been
predominated by “Macro Cells,” which use larger antennas mounted on taller antenna structures
with greater power to serve larger areas than Small Wireless Facilities.
5
Wireless providers can provide backhaul over fiber that they or affiliated entities own or, in some
cases, they may pay a third party to provide backhaul for them.
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to the FCC, “[t]hese new services can unleash a new wave of entrepreneurship, innovation, and

economic opportunity for communities across the country.”6 Wireless providers are projected to

invest $275 billion over the next decade in next-generation wireless infrastructure deployments,

which should generate three million new jobs and boost the nation’s GDP by half a trillion dollars.7

As the FCC has explained:

Supporting the deployment of 5G and other next-generation wireless


services through smart infrastructure policy is critical. Indeed, upgrading
to these new services will, in many ways, represent a more fundamental
change than the transition to prior generations of wireless service. 5G can
enable increased competition for a range of services—including
broadband—support new healthcare and Internet of Things applications,
speed the transition to life-saving connected car technologies, and create
jobs.8

II. THE COMMUNICATIONS ACT PROHIBITS MUNICIPALITIES FROM


ACTING, OR FAILING TO ACT, IN SUCH A MANNER AS TO PROHIBIT OR
HAVE THE EFFECT OF PROHIBITING THE PROVISION OF
TELECOMMUNICATIONS SERVICES

13. The Communications Act “makes clear Congress’s commitment to a competitive

telecommunications marketplace unhindered by unnecessary regulations, explicitly directing the

FCC 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.’”9

14. Reflecting that commitment, Section 253(a) provides that “[n]o State or local

statute or regulation, or other State or local legal requirement, may prohibit or have the effect of

6
FCC Ruling/Order at 9089 ¶ 1.
7
See id. at 9089 ¶ 2.
8
Id.
9
Id. at 9092 ¶ 14 (quoting Preamble, Telecommunications Act of 1996, P.L. 104-104, 110 Stat.
56 (1996)).
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prohibiting the ability of any entity to provide any interstate or intrastate telecommunications

service.”10

15. Courts have acknowledged that Section 253 represents a “broad preemption of laws

that inhibit competition.”11

16. When applying Section 253, the Second Circuit considers the combined effect of

the individual provisions challenged to avoid “neglect[ing] the possibility that a town could

effectively prohibit telecommunications services through a combination of individually non-

objectionable provisions.”12

17. Courts have recognized that the FCC has authority to interpret Section 253 to

establish parameters for what types of local legal requirements run afoul of the Communications

Act.13

18. Soon after the enactment of Section 253, the FCC offered guidance for determining

whether local laws “have the effect of prohibiting the ability of any entity to provide any interstate

or intrastate telecommunications service,” directing courts to consider “whether the ordinance

materially inhibits or limits the ability of any competitor or potential competitor to compete in a

fair and balanced legal and regulatory environment.”14

10
47 U.S.C. § 253(a).
11
FCC Ruling/Order at 9092 ¶ 15 (quoting Puerto Rico Tel. Co. v. Telecomm. Reg. Bd. of Puerto
Rico, 189 F.3d 1, 11 n.7 (1st Cir. 1999)).
12
TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 77 (2d Cir. 2002).
13
See FCC Ruling/Order at 9095 ¶ 21 (citing City of Arlington, Tex. v. F.C.C., 668 F.3d 229, 253–
54 (5th Cir. 2012); Sprint Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571, 578 (9th Cir.
2008); RT Commc’ns, Inc. v. F.C.C., 201 F.3d 1264, 1268 (10th Cir. 2000)).
14
California Payphone Ass’n, 12 FCC Rcd 14191, 14206 ¶ 31 (1997).
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19. The Second Circuit embraced the FCC’s “materially inhibit” standard for

determining whether a local law operates as a prohibition or effective prohibition in violation of

the Communications Act.15

20. Last year, the FCC acted to reduce regulatory barriers to expedite 5G infrastructure

investment and deployment of Small Wireless Facilities16 in rights-of-way controlled by local

governments and confirmed that the “materially inhibit” standard is appropriate for determining

whether a local law operates as a prohibition or effective prohibition violating Section 253.17

21. It is well settled that a local legal requirement can “materially inhibit” the provision

of telecommunications services even if it is not a complete or insurmountable barrier as long as it

“impedes” the provision of telecommunications service.18

22. The FCC has explained further that discriminatory regulations likewise prohibit or

have the effect of prohibiting the provision of telecommunications service, clarifying that “[a]

regulatory structure that gives an advantage to particular services or facilities has a prohibitory

15
City of White Plains, 305 F.3d at 76.
16
The requirements and limitations in Section 253 apply to providers’ ability to offer
telecommunications services generally. As such, the FCC Ruling/Order interpreting Section 253
applies to any network infrastructure that a provider uses to offer telecommunications services,
regardless of whether it is a Small Wireless Facility, other wireless network infrastructure, or
wireline network infrastructure. Similarly, a State or local government statute, regulation, or legal
requirement that violates Section 253 invalidates that statute, regulation, or requirement generally
as to all network infrastructures to which the action or requirement applies.
17
See FCC Ruling/Order at 9100 ¶ 31.
18
See id. at 9102 ¶ 35; id. at 9108–09 ¶¶ 41–42; Verizon Commc’ns, Inc. v. F.C.C., 535 U.S. 467,
491 (2002) (describing Section 253(a) as “prohibit[ing] state and local regulation that impedes the
provision of ‘telecommunications service’” (emphasis added)); Puerto Rico Tel. Co. v.
Municipality Of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006) (“Courts have also noted that ‘a
prohibition does not need to be complete or “insurmountable” to run afoul of § 253(a).’” (quoting
City of White Plains, 305 F.3d at 76)); City of White Plains, 305 F.3d at 76 (acknowledging “Courts
have held that ‘a prohibition does not need to be complete or “insurmountable” to run afoul of §
253(a)’” and “agree[ing] with these precedents”); Qwest Corp. v. City of Santa Fe, New Mexico,
380 F.3d 1258, 1269 (10th Cir. 2004) (“A regulation need not erect an absolute barrier to entry in
order to be found prohibitive.”).
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effect, even if there are no express barriers to entry in the state or local code; the greater the

discriminatory effect, the more certain it is that entities providing service using the disfavored

facilities will experience prohibition.”19

23. In its FCC Ruling/Order, the FCC found that numerous courts have long recognized

that local fees and other charges associated with the deployment of wireless network infrastructure

that are inconsistent with Section 253 can effectively prohibit the provision of telecommunications

service, violating the Communications Act.20

24. To be sure, Section 253 provides that “[n]othing in this section affects the authority

of a State or local government to manage the public rights-of-way or to require fair and reasonable

compensation from telecommunications providers, on a competitively neutral and

nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by such government.”21 But the FCC has made clear

that the phrase “fair and reasonable compensation” only allows state or local governments to

charge fees that recover a reasonable approximation of the state or local governments’ actual and

reasonable costs, where the costs being passed on are themselves objectively reasonable for

maintaining the right-of-way, maintaining a structure within the right-of-way, or processing an

application or permit.22

25. In the FCC Ruling/Order, the FCC found that, to be consistent with Section 253,

fees imposed by local governments for the attachment of Small Wireless Facilities in the public

rights-of-way must meet the following requirements: (1) be a reasonable approximation of the

19
FCC Ruling/Order at 9106 ¶ 39.
20
See discussion at id. at 9100 ¶ 32; id. at 9110 ¶ 43.
21
47 U.S.C. § 253(c).
22
FCC Ruling/Order at 9125 ¶ 72.
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local government’s costs in connection with a provider’s use of the right-of-way to deploy

facilities; (2) only include objectively reasonable costs; and (3) be non-discriminatory.23

26. Non-cost-based fees violate the Communications Act.24 Fees are non-cost-based,

for example, when they recover costs for functions not caused the provider’s “use” of the public

right-of-way or are “designed to subsidize local government costs in another geographic area or

accomplish some public policy objective beyond the providers’ use of the [right-of-way].”25

Likewise, unreasonably high costs, including excessive or arbitrary fees charged by third parties

to a local government, may not be passed on to the provider using the public right-of-way through

fees because, although they may be an actual cost to the locality, they are not objectively

reasonable.26

27. While the fees local governments charge for attaching wireless facilities generally

must be based on actual costs to the government, the FCC has presumed that a fee of $270 per

Small Wireless Facility attachment per year for all recurring fees would be “fair and reasonable

compensation” and not prohibited by Section 253.27

23
See id. at 9112–13 ¶ 50; see also id. at 9100 ¶ 32 (explaining “fees are only permitted to the
extent that they represent a reasonable approximation of the local government’s objectively
reasonable costs, and are non-discriminatory”); id. at 9124 ¶ 69 (“The requirement that
compensation be limited to a reasonable approximation of objectively reasonable costs and be non-
discriminatory applies to all state and local government fees paid in connection with a provider’s
use of the [right-of-way] to deploy Small Wireless Facilities.”).
24
See id. at 9125–27 ¶ 73.
25
See id. at 9128 ¶ 76.
26
See id.; id. at 9124–25 ¶ 70; id at 9115 ¶ 55; id. at 9121–22 ¶ 64 (agreeing with comments
received from smaller municipalities urging the FCC to establish common-sense, cost-based
standards governing fees to prevent the “excessive and arbitrary fees” consultants have
recommended to larger municipalities, which might preclude infrastructure deployment in other
regions).
27
See id. at 9129 ¶ 79.
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28. The FCC has cautioned courts, when facing claims that fees violate Section 253,

not to focus narrowly on the barrier erected by the jurisdiction imposing the legal requirement.

Rather, courts should be mindful of “the serious effects that flow through in other jurisdictions as

a result, including harms to regional or national deployment efforts,” recognizing that fees imposed

beyond recovery of a locality’s reasonable costs materially inhibit plans to deploy service in both

that locality and other localities across the country due to regulatory uncertainty and finite

resources—“diminish[ing] deployment of Small Wireless Facilities critical for wireless service

and building out 5G networks.”28

29. Over the next three to four years, an estimated 300,000 Small Wireless Facilities

will need to be deployed by Verizon Wireless and other providers, and connected to other wireless

network infrastructure, which is approximately double the number of “macro cells” built over the

last thirty years to support 4G and other prior generations of wireless technology.29 This significant

increase in wireless network infrastructure “will magnify per-facility fees charged to providers,”

making such fees more likely to materially inhibit service when they exceed the actual and

objectively reasonable costs incurred by the local government.30

30. A local government regulation also may materially inhibit a service provider’s

ability to provide telecommunications services in other ways, including by limiting the ability of

28
Id. at 9110 ¶ 42; id. at 9122–23 ¶ 65; see also, e.g., id. at 9118–19 ¶ 60; id. at 9110 ¶ 43; id. at
9119–20 ¶ 61 (stating “[t]he record is replete with evidence that providers have limited capital
budgets that are constrained by state and local fees” and agreeing with Verizon Wireless, as well
as other providers, that “[w]hen providers are forced to spend more to deploy infrastructure in one
locality, there is less money to spend in others”); see also Puerto Rico Tel. Co., 450 F.3d at 18–19
(considering wider impact of gross revenue fee on provider’s provision of telecommunications
services across municipalities in concluding Section 253 preempted local ordinance).
29
See FCC Ruling/Order at 9111–12 ¶ 47.
30
Id. at 9112 ¶ 48.
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a provider to fill in coverage gaps, densify a wireless network, introduce new services, or otherwise

improve existing service capabilities.31

31. The FCC Ruling/Order took effect on January 14, 2019.

III. PROVISIONS OF THE CODE PROHIBIT OR HAVE THE EFFECT OF


PROHIBITING THE PROVISION OF TELECOMMUNICATIONS SERVICES

32. Defendant was aware of Section 253 and the FCC Ruling/Order when it was

considering changes to the Code in late 2018 and early 2019. Nevertheless, on February 20, 2019,

Defendant adopted the Code.

33. Several provisions in the Code violate Section 253, including as explicitly

interpreted in the FCC Ruling/Order.

A. The Code’s Annual Right-Of-Way Compensation Fees Are at Odds with


Federal Law.

34. The Code requires several categories of annual “right-of-way compensation” from

providers of telecommunications services that occupy or use the public rights-of-way in the City

that conflict with, and are preempted by, Section 253.

(i) Annual Fees Based on “Value”—Rather than Cost—Are Unlawful.

35. The Code purports to impose charges reflecting “the value of the right-of-way and

the municipal facilities.”32

36. The Code’s imposition of fees reflecting “the value of the right-of-way and the

municipal facilities” is preempted by Section 253. As the FCC Ruling/Order clearly states,

Section 253 requires fees to be based on actual and objectively reasonable costs. Accordingly,

31
See id. at 9104 ¶ 37; id. at 9106–08 ¶ 40.
32
Code § 106-15(B).
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non-cost- “value”-based fees that are untethered to and above cost, and designed to maximize

revenue, are prohibited.33

(ii) The Code’s Annual per Pole Attachment Fees Are Unreasonably High.

37. For “pole attachments,” which relate to siting a Small Wireless Facility, the Code

imposes the following annual per pole attachment fees:

POLE ATTACHMENTS. One thousand five hundred dollars per standard


City-owned pole or standard pole purchased and replaced by the licensee
and dedicated to the City, and $1,000 per smart pole installed by the licensee
and dedicated to the City. Any smart poles installed by the City shall be
such amount as set forth in a master license agreement.34

38. These rates stand in sharp contrast with the FCC Ruling/Order, which found that

the following fee levels are presumptively consistent with Section 253 requirements: recurring

Small Wireless Facility fees capped at $270 annually, which includes all recurring fees related to

the Small Wireless Facility, such as any possible right-of-way access fee or fee for attachment to

municipally-owned structures in the right-of-way.35 The FCC Ruling/Order states that there will

be “only very limited circumstances in which localities can charge higher fees consistent with the

requirements of Section 253.”36

39. The Code’s recurring pole attachment fees far exceed the presumptively reasonable

limit established by the FCC Ruling/Order and are not based on a reasonable approximation of

objectively reasonable costs actually incurred by the City as a result of a provider’s attachment of

a Small Wireless Facility to municipal poles. In fact, when Verizon Wireless requested that the

33
See FCC Ruling/Order at 9125–27 ¶ 73.
34
Code § 106-15(B)(4). The first paragraph of § 106-15(B) states that these amounts are assessed
annually: “RIGHT-OF-WAY COMPENSATION. All Licensees shall pay annually to the City,
as compensation for use of the City’s right-of-way and/or for the use of municipal facilities, . . .
the following annual amounts:”.
35
See FCC Ruling/Order at 9129 ¶ 79.
36
Id. at 9129–30 ¶ 80.
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City provide cost justification for these rates, the City did not provide any substantiation based on

costs. See Exs. A and B.

40. The Code also imposes additional recurring fees associated with the Small Wireless

Facility attachments that exacerbate the non-compliant structure and amount of the recurring fees.

Specifically, the Code imposes charges on providers whose Small Wireless Facilities are deployed

in the public rights-of-way for: “administrative costs for retaining and managing documents and

records”; “costs for managing, coordinating and responding to public concerns and complaints”;

and “the costs of the City’s self-insurance.”37 To the extent these fees seek additional recurring

compensation for Small Wireless Facilities attaching in or occupying the public rights-of-way,

even if “specifically related to and caused by the deployment,”38 they are nonetheless presumed

unlawful because the recurring Small Wireless Facility attachment fees in the Code already exceed

the FCC’s presumptive limit, and the FCC made clear that all recurring fees for a Small Wireless

Facility are to be taken into account when considering compliance with the Commission’s standard

interpreting Section 253.39

(iii) The Code’s Annual Underground and Aerial Installation Fees for
Backhaul Are Not Cost-Based, Are Unreasonably High, and Are
Discriminatory.

41. For “underground installations,” the Code imposes three categories of annual fees:

(a) OPEN TRENCHING. In the first year, $10,000 for up to 2,500 linear
feet of telecommunications facilities per contiguous site, per conduit or
multiple conduits up to five inches total in diameter in the right-of-way,
$1.50 per linear foot for 2,500 through 12,500 linear feet of
telecommunications facilities and $0.75 per linear foot thereafter. Annually
after the first year of installation, $5,000 for up to 2,500 linear feet of
telecommunications facilities and $1 per linear foot for 2,500 through
12,500 linear feet of telecommunications facilities and $0.50 per linear foot
thereafter;

37
Code § 106-15(B).
38
FCC Ruling/Order at 9113 n.131.
39
See id. at 9129 ¶ 79.
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(b) INSTALLATION IN EXISTING FACILITIES. Five thousand dollars


for up to 2,500 linear feet of telecommunications facilities, including wire,
fiber optic strands, innerduct or other facilities which do not require the
installation of new conduit and are installed in existing facilities and $1 per
linear foot for 2,500 through 12,500 linear feet of telecommunications
facilities and $0.50 per linear foot thereafter;

(c) DIRECTIONAL BORING. In the first year, $500 for each site of
excavation required to facilitate directional boring for placement of conduit
or multiple conduits up to five inches total in diameter in the right-of-way
and $1.50 per linear foot of installed facilities resulting from such
directional boring for 2,500 through 12,500 linear feet of
telecommunications facilities and $0.75 per linear foot thereafter. Annually
after the first year, $5,000 for up to 2,500 linear feet of installed
telecommunications facilities and $1 per linear foot for 2,500 through
12,500 linear feet of telecommunications facilities and $0.50 per linear foot
thereafter[.]40

42. The Code’s “underground” fee structure is not a reasonable approximation of actual

cost, is not objectively determined, and is discriminatory.

43. The Code imposes the same $10,000 first-year and $5,000 subsequent-year fees for

“underground” open-trenching use of either one linear foot or 2,500 linear feet, which inherently

cannot accurately reflect Defendant’s cost in each case. These fees are thus not cost-based, are

unreasonable, and are not objectively determined. The “underground” fees for installation in

existing facilities and for directional boring suffer from the same deficiencies.

44. The Code imposes the same “underground” fee on a provider using one linear foot

as it imposes on another provider using 2,500 linear feet, and the fee is thus discriminatory. On

information and belief, the City’s actual and reasonable costs are not flat for the first 2,500 linear

feet for “underground installations,” regardless of whether the facilities are placed underground

through open-trenching, in existing facilities, or through directional boring.

40
Code § 106-15(B)(1).
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45. The inherently unreasonable and discriminatory nature of applying the same

“underground” fee for one linear foot as for 2,500 linear feet is demonstrated by the Code itself

because the fee is flat up to 2,500 linear feet and then increases on a per linear foot basis afterward

in substantial amounts. The fee structure above 2,500 linear feet thus demonstrates that a

significant portion of the City’s costs vary based on the length of the build, but the fees for

infrastructure builds at and below 2,500 linear feet do not reflect any changes in cost based on

length of the build.

46. Whether for open-trenching, installations in existing facilities, or directional

boring, the Code imposes different per linear foot fees for “underground” use of between 2,500

and 12,500 linear feet and a lesser per linear foot amount on additional use above 12,500 linear

feet, which inherently cannot accurately reflect Defendant’s cost and is thus unreasonable.

47. Whether for open-trenching, installations in existing facilities, or directional

boring, the Code imposes different per linear foot fees for “underground” use in each case of

between 2,500 and 12,500 linear feet and a lesser per linear foot amount for additional use above

12,500 linear feet and is thus discriminatory.

48. Nothing in the Code’s fee framework provides an indication, nor to Verizon

Wireless’s knowledge has the City provided a demonstration, that the “underground” fees are

based on a reasonable approximation of cost that is objectively determined and non-discriminatory.

49. For “aerial installations” of “fiber or other telecommunications facilities and

accessory equipment strung between poles, buildings, or other facilities,” the Code delineates the

following annual fee structure:

AERIAL INSTALLATIONS. Aerial installation of fiber or other


telecommunications facilities and accessory equipment strung between
poles, buildings, or other facilities, is strongly discouraged due to area
weather, safety concerns, limited capacity, and aesthetic disturbances.

16
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 17 of 27

Upon demonstrating that there is no reasonable alternative to such


installation, and if such installation is approved, then $10,000 for up to
2,500 linear feet of telecommunications facilities, $1.50 per linear foot for
2,500 through 12,500 linear feet of telecommunications facilities and
equipment and $0.75 per linear foot thereafter. Annually after the first year
of installation, $5,000 for up to 2,500 linear feet of telecommunications
facilities and $1 per linear foot for 2,500 through 12,500 linear feet of
telecommunications facilities and $0.50 per linear foot thereafter.41

50. This “aerial” fee structure is not a reasonable approximation of actual cost, is not

objectively determined, and is discriminatory.

51. The Code imposes the same $10,000 first-year and $5,000 subsequent-year fees for

“aerial” use of either one linear foot or 2,500 linear feet, which inherently cannot accurately reflect

Defendant’s cost in each case and is thus unreasonable and not objectively determined.42

52. The Code imposes the same “aerial” fee on a provider for one linear foot that it

imposes on another provider for 2,500 linear feet, and the fee is thus discriminatory. On

information and belief, the City’s actual and reasonable costs are not flat for the first 2,500 linear

feet for “aerial installations.”

53. The inherently unreasonable and discriminatory nature of applying the same

“aerial” fee for one linear foot as for 2,500 linear feet is demonstrated by the Code itself because

the fee is flat up to 2,500 linear feet but then increases on a per linear foot basis afterward in

substantial amounts. The fee structure above 2,500 linear feet apparently suggests that a

significant portion of the City’s costs vary based on the length of the build, but the fees for

infrastructure builds at and below 2,500 linear feet do not reflect any changes in cost based on

length of the build.

41
Id. § 106-15(B)(2).
42
The City does not explain why costs would be the same for aerial and open trenching when
presumably maintenance costs for air space would be lower.
17
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 18 of 27

54. The Code imposes different per linear foot fees for “aerial” use of between 2,500

and 12,500 linear feet and a lesser per linear foot amount on additional use above 12,500 linear

feet, which inherently cannot accurately reflect Defendant’s cost and is thus unreasonable.

55. The Code imposes different fees per linear foot for “aerial” use of between 2,500

and 12,500 linear feet and a lesser per linear foot amount for additional use above 12,500 linear

feet, and is thus discriminatory.

56. Nothing in the Code’s fee framework provides an indication, nor to Verizon

Wireless’s knowledge has the City provided a demonstration, that the fees are based on a

reasonable approximation of cost that is objectively determined and non-discriminatory.

57. As further indication that the Code’s underground-installations and aerial-

installations fees are not based on a reasonable approximation of costs objectively determined, the

Code arbitrarily provides a substantial discount for relocating aerial installations underground—

even though aerial installations tend to place less of a burden on the management and maintenance

of the public right-of-way.43

58. The non-complaint nature of the Code’s recurring underground-installations and

aerial-installations fees is exacerbated by the fact that the Code imposes additional recurring fees

associated with underground and aerial installations. Specifically, the Code imposes charges on

providers that use and occupy the public rights-of-way for: “administrative costs for retaining and

managing documents and records”; “costs for managing, coordinating and responding to public

43
See Code § 106-15(B)(5). The City may have other rationales for seeking to have wireless and
other network infrastructure deployed underground (e.g., aesthetics), but this does not alter the
requirement that, pursuant to Section 253, all fees for use of public rights-of-way by
telecommunications services providers must be a reasonable approximation of objectively
reasonable costs.
18
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 19 of 27

concerns and complaints”; and “the costs of the City’s self-insurance.”44 To the extent these fees

seek additional compensation for underground or aerial installations attaching in or occupying the

public rights-of-way, even if “specifically related to and caused by the deployment,”45 they are

nonetheless unlawful because the underground-installations and aerial-installations fees are non-

cost-based in violation of Section 253.46

B. The Code’s Excess and Duplicative Fees Are at Odds with Federal Law.

59. The Code provides that the fees discussed above in paragraphs 34–58 are in

addition to any other applicable fees imposed by the Code, including rent, special assessments,

and taxes:

The compensation set forth in this section [(106-15)] shall be exclusive of,
and in addition to, any other applicable fees, including but not limited to
permit fees, registration costs, or other costs established by this chapter or
by Chapter 104, any rental amounts for lease of City municipal facilities
and all special assessments and taxes of whatever nature.47

60. But these “other applicable fees” established by Chapters 106 or 104 of the Code

violate Section 253 where they apply to providers with Small Wireless Facility attachments and/or

underground or aerial installations to the extent that they are in excess of and duplicative of the

non-cost-based fees of Section 106-15 described in paragraphs 34–58. The combined fees are thus

not a reasonable approximation of objectively reasonable costs actually incurred by the City as a

result of a provider’s use of the right-of-way.

44
Code § 106-15(B).
45
FCC Ruling/Order at 9113 n.131.
46
See id. at 9129 ¶ 79.
47
Code § 106-15(F).
19
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 20 of 27

61. The Code’s allowance of the “other applicable fees” also compounds the magnitude

of the Code’s combined violations of federal law, as they move even further away from the

reasonable approximation of actual and objectively reasonable costs required by the law.

62. Moreover, some of the costs imposed by Chapters 104 and 106 of the Code, such

as those identified in the next two paragraphs, also are captured in the fees imposed by other

provisions of the Code described in paragraphs 34–58 herein, meaning that such costs may be

recovered more than once, which would be inherently non-cost-based and unreasonable in

violation of Section 253.48

63. Section 106-15(A) of the Code imposes registration fees, Section 104-57 imposes

permit fees, Section 104-57(E) imposes permit fees for excavations of multiple openings, and

Section 106-15(F) allows for additional registration costs and permit fees. To the extent that the

otherwise applicable annual fees include these costs, there would be duplication in recovery of the

foregoing fees.

64. Section 106-15(B)(1) of the Code provides for annual fees relating to underground

installations. Section 104-57(H) imposes fees for excavation in the right-of-way unless the

excavation was for the renewal of residential water service and does not disturb the roadway or

public sidewalk. Section 104-57(B) requires companies performing work in the City to pay an

annual maintenance fee, including fees for all work other than work requiring excavation in the

City rights-of-way. Section 104-20 imposes 15-year extended maintenance fees, in addition to

permit fees, for excavations made in newly reconstructed or newly resurfaced pavement. To the

extent that the otherwise applicable annual fees include these costs, there would be duplication in

recovery of the foregoing fees.

48
Compare id. § 106-15, with id. §§ 104-57 and 104-20.
20
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 21 of 27

65. Section 106-15(F) of the Code, which imposes “all special assessments and taxes

of whatever nature” is, by its own terms, not tied to a reasonable approximation of actual and

reasonable costs specifically related to and caused by a provider’s use of the right-of-way and,

therefore, violates Section 253.

IV. VERIZON WIRELESS SEEKS TO DEPLOY WIRELESS NETWORK


INFRASTRUCTURE TO OFFER NEXT-GENERATION
TELECOMMUNICATIONS SERVICES IN ROCHESTER

66. To better serve its customers and the City and to begin to serve new customers and

provide new services, Verizon Wireless seeks to extend, densify, and upgrade its wireless network

infrastructure, including to install additional Small Wireless Facilities to support the provision of

current and next-generation telecommunications services such as 5G and to deploy fiber to connect

these facilities. To successfully do this, Verizon Wireless requires new approvals from Defendant

to access City property.

67. Accordingly, on January 10, 2019, Verizon Wireless petitioned Defendant in

writing not to enact the Code for several reasons, including those stated in this Complaint.

68. On February 7, 2019, Verizon Wireless provided Defendant, in writing, with

suggested revisions to the Code to comply with federal law, including revisions to the fee

provisions of the Code described elsewhere within this Complaint.

69. On February 20, 2019, the City Council enacted the Code without incorporating the

vast majority of Verizon Wireless’s suggested revisions.

70. On April 1, 2019, the Code took effect.

71. On April 15, 2019, by letter, Verizon Wireless sought clarification from Defendant

as to whether it believed the Code complies with federal law, and, if so, to provide support for that

belief. Verizon Wireless advised Defendant in that letter that it was eager to deploy wireless

21
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 22 of 27

network infrastructure to enable it to offer next-generation wireless services in the City, but the

City’s response would affect Verizon Wireless’s ability to do so. See Ex. A.

72. On April 29, 2019, Defendant advised Verizon Wireless that “we have concluded

that our permit fees and recurring fees for use of the City’s rights of way, including those for pole

attachments related to the deployment of small wireless facilities, comply with all federal law

requirements and limitations.” Ex. B.

73. Defendant’s April 29, 2019, communication made clear that an unavoidable and

actual controversy exists.

74. On July 30, 2019, Defendant wrote Verizon Wireless and advised that, in order to

be in compliance with the Code, Verizon Wireless is required, by October 1, 2019, to register

under Section 106-5 of the Code, complete and enter into a Master License Agreement, complete

Permit applications as necessary, and make “payment of all fees and compensation due to the City

that accrued as of the effective date of [the Code].” Ex. C.

75. As a result of Defendant’s actions, Verizon Wireless has been, and will continue to

be, damaged and irreparably harmed absent the relief requested herein. The harm caused by

Defendant’s unlawful actions includes, but is not limited to, an effective prohibition on Verizon

Wireless’s ability to provide telecommunications services in the affected area of the City,

materially inhibiting Verizon Wireless’s: (a) ability to provide the public with telecommunications

services, including the ability to provide emergency communications; (b) ability to compete with

other providers of telecommunications services; and (c) full use of its existing licenses and

business investments, all of which are irretrievably impairing Verizon Wireless’s good will and

business reputation.

22
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 23 of 27

76. In the ultra-competitive telecommunications industry, particularly at this critical

time when next-generation wireless services are being deployed across the country, each day this

regulatory uncertainty lingers and affects Verizon Wireless’s deployment decisions yields greater

harm.

77. As the FCC Ruling/Order underscores, deployment of wireless network

infrastructure to support next-generation services is a matter of significant public interest. Not

only does the prohibition and regulatory uncertainty created by the Code cause significant harm to

Verizon Wireless, it also causes significant harm to the public who are deprived of the benefits of

efficient deployment of wireless network infrastructure, both of current- and next-generation

technologies, that the FCC sought to secure. The public interest in promoting competition in the

telecommunications arena—the express goal of the Communications Act—has been irreparably

harmed, and will continue to be irreparably harmed, by Defendant’s unlawful actions. Verizon

Wireless’s present and future customers, as well as the public, are significantly prejudiced by

Defendant’s unlawful conduct.

COUNT I

Violation of 47 U.S.C. §§ 253(a) and (c)—Unfair and Unreasonable Small Wireless Facility
Attachment Fees That Prohibit or Have the Effect of Prohibiting Telecommunications
Service

78. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs.

79. Section 253(a) provides 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.”

80. Section 253(c) provides that local governments may “require fair and reasonable

compensation from telecommunications providers, on a competitively neutral and

23
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 24 of 27

nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by such government.”

81. The FCC Ruling/Order found that fees charged by localities to attach to facilities

within or to occupy public rights-of-way “violate [Section 253] unless these conditions are met:

(1) the fees are a reasonable approximation of the state or local government’s costs [in connection

with a provider’s use of the right-of-way], (2) only objectively reasonable costs are factored into

those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in

similar situations.”

82. The FCC Ruling/Order also set forth standards for certain fee levels that

presumptively do not violate Section 253, including, among others, recurring Small Wireless

Facility fees capped at $270 per Small Wireless Facility annually, which includes all fees related

to deployment of the Small Wireless Facility, such as any possible right-of-way access fee or fee

for attachment to municipally-owned structures in the right-of-way.

83. As set forth above, the Code’s recurring Small Wireless Facility attachment fees

also far exceed the limit established by the FCC Ruling/Order.

84. As set forth above, the Code’s recurring Small Wireless Facility attachment fees

are not a reasonable approximation of the City’s actual and objectively reasonable costs and are

discriminatory.

85. As set forth above, the Code imposes duplicative recurring fees on Small Wireless

Facility attachments that alone and in combination with other recurring fees are not a reasonable

approximation of the City’s actual and objectively reasonable costs.

86. The recurring fees for Small Wireless Facility attachments in the Code are therefore

inconsistent with and violate Section 253(a), Section 253(c), and the FCC Ruling/Order.

24
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 25 of 27

COUNT II

Violation of 47 U.S.C. §§ 253(a) and (c)—Unfair and Unreasonable Underground and


Aerial Facility Rights-of-Way Fees That Prohibit or Have the Effect of Prohibiting
Telecommunications Service

87. Verizon Wireless re-alleges and incorporates by reference all preceding paragraphs.

88. Section 253(a) provides 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.”

89. Section 253(c) provides that local governments may “require fair and reasonable

compensation from telecommunications providers, on a competitively neutral and

nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the

compensation required is publicly disclosed by such government.”

90. The FCC Ruling/Order found that fees charged by local governments to attach to

facilities within or to occupy public rights-of-way “violate [Section 253] unless these conditions

are met: (1) the fees are a reasonable approximation of the state or local government’s costs [in

connection with a provider’s use of the right-of-way], (2) only objectively reasonable costs are

factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated

competitors in similar situations.”

91. As set forth above, the Code’s framework for recurring fees for underground

installations reveal that the fees, on their face, cannot consistently be a reasonable approximation

of the City’s actual and objectively reasonable costs and that they are discriminatory.

92. As set forth above, the Code’s framework for recurring fees for aerial installations

reveal that the fees, on their face, cannot consistently be a reasonable approximation of the City’s

actual and objectively reasonable costs and that they are discriminatory.

25
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 26 of 27

93. As set forth above, the Code imposes fees (e.g., for registration and permitting) that

are duplicative of other non-compliant fees imposed for the use and occupation of the rights-of-

way and therefore are not a reasonable approximation of the City’s actual and objectively

reasonable costs caused by underground and aerial installations that are not already recovered by

the City.

94. The recurring fees in the Code underground and aerial installations are therefore

inconsistent with and violate Section 253(a), Section 253(c), and the FCC Ruling/Order.

WHEREFORE, Plaintiff Verizon Wireless respectfully requests that this Court issue an

Order and Judgment:

a. Declaring that the recurring fees applicable to pole attachments in Section 106-15

of the Code violate 47 U.S.C. §§ 253(a) and 253(c);

b. Declaring that the recurring fees applicable to backhaul in Section 106-15 of the

Code violate 47 U.S.C. §§ 253(a) and 253(c);

c. Declaring that the fees applicable to “the value of the right-of-way and the

municipal facilities” in Section 106-15 of the Code violate 47 U.S.C. §§ 253(a) and

253(c);

d. Declaring that the excessive and duplicative fees allowed in Section 106-15(F) of

the Code violate 47 U.S.C. §§ 253(a) and 253(c);

e. Declaring that the recurring fees applicable to pole attachments in Section 106-15

of the Code are preempted by 47 U.S.C. § 253;

f. Declaring that the recurring fees applicable to backhaul in Section 106-15 of the

Code are preempted by 47 U.S.C. § 253;

26
Case 6:19-cv-06583-EAW Document 1 Filed 08/08/19 Page 27 of 27

g. Declaring that the fees applicable to “the value of the right-of-way and the

municipal facilities” in Section 106-15 of the Code are preempted by 47 U.S.C. §

253;

h. Declaring that the excessive and duplicative fees allowed in Section 106-15(F) of

the Code are preempted by 47 U.S.C. § 253;

i. Ordering, directing, and enjoining Defendant from continuing to enforce Section

106-15 of the Code;

j. Awarding Verizon Wireless the costs, disbursements, and expenses of this action

as permitted by law; and

k. Granting such other and further relief as this Court deems just and proper.

Dated: New York, New York Respectfully submitted,


August 8, 2019
KELLEY DRYE & WARREN LLP

By: /s/ Geoffrey W. Castello


Geoffrey W. Castello
Damon Suden (admission pending)
101 Park Avenue
New York, New York 10178
Tel: (212) 808-7800

Edward A. Yorkgitis, Jr. (pro hac vice forthcoming)


3050 K Street, N.W.
Washington, D.C. 20007
Tel: (202) 342-8400

Lauri A. Mazzuchetti (pro hac vice forthcoming)


Robert N. Ward (admission pending)
One Jefferson Road, 2nd Floor
Parsippany, NJ 07054
Tel: (973) 503-5900

Attorneys for Plaintiff


Verizon Wireless

27
Case 6:19-cv-06583-EAW Document 1-1 Filed 08/08/19 Page 1 of 2
JS 44 (Rev. 08/18) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS


Cellco Partnership d/b/a Verizon Wireless City of Rochester

(b) County of Residence of First Listed Plaintiff Somerset County, NJ County of Residence of First Listed Defendant Monroe County, NY
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Geoffrey W. Castello, Kelley Drye & Warren LLP, 101 Park Avenue,
New York, NY 10178, 212-808-7800 City of Rochester Law Department
30 Church Street, 4th Floor, Rochester, NY 14614

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
" 1 U.S. Government " 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State " 1 " 1 Incorporated or Principal Place " 4 " 4
of Business In This State

" 2 U.S. Government " 4 Diversity Citizen of Another State " 2 " 2 Incorporated and Principal Place " 5 " 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a " 3 " 3 Foreign Nation " 6 " 6


Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
" 110 Insurance PERSONAL INJURY PERSONAL INJURY " 625 Drug Related Seizure " 422 Appeal 28 USC 158 " 375 False Claims Act
" 120 Marine " 310 Airplane " 365 Personal Injury - of Property 21 USC 881 " 423 Withdrawal " 376 Qui Tam (31 USC
" 130 Miller Act " 315 Airplane Product Product Liability " 690 Other 28 USC 157 3729(a))
" 140 Negotiable Instrument Liability " 367 Health Care/ " 400 State Reapportionment
" 150 Recovery of Overpayment " 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS " 410 Antitrust
& Enforcement of Judgment Slander Personal Injury " 820 Copyrights " 430 Banks and Banking
" 151 Medicare Act " 330 Federal Employers’ Product Liability " 830 Patent " 450 Commerce
" 152 Recovery of Defaulted Liability " 368 Asbestos Personal " 835 Patent - Abbreviated " 460 Deportation
Student Loans " 340 Marine Injury Product New Drug Application " 470 Racketeer Influenced and
(Excludes Veterans) " 345 Marine Product Liability " 840 Trademark Corrupt Organizations
" 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY " 480 Consumer Credit
of Veteran’s Benefits " 350 Motor Vehicle " 370 Other Fraud " 710 Fair Labor Standards " 861 HIA (1395ff) " 485 Telephone Consumer
" 160 Stockholders’ Suits " 355 Motor Vehicle " 371 Truth in Lending Act " 862 Black Lung (923) Protection Act
" 190 Other Contract Product Liability " 380 Other Personal " 720 Labor/Management " 863 DIWC/DIWW (405(g)) " 490 Cable/Sat TV
" 195 Contract Product Liability " 360 Other Personal Property Damage Relations " 864 SSID Title XVI " 850 Securities/Commodities/
" 196 Franchise Injury " 385 Property Damage " 740 Railway Labor Act " 865 RSI (405(g)) Exchange
" 362 Personal Injury - Product Liability " 751 Family and Medical " 890 Other Statutory Actions
Medical Malpractice Leave Act " 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS " 790 Other Labor Litigation FEDERAL TAX SUITS " 893 Environmental Matters
" 210 Land Condemnation " 440 Other Civil Rights Habeas Corpus: " 791 Employee Retirement " 870 Taxes (U.S. Plaintiff " 895 Freedom of Information
" 220 Foreclosure " 441 Voting " 463 Alien Detainee Income Security Act or Defendant) Act
" 230 Rent Lease & Ejectment " 442 Employment " 510 Motions to Vacate " 871 IRS—Third Party " 896 Arbitration
" 240 Torts to Land " 443 Housing/ Sentence 26 USC 7609 " 899 Administrative Procedure
" 245 Tort Product Liability Accommodations " 530 General Act/Review or Appeal of
" 290 All Other Real Property " 445 Amer. w/Disabilities - " 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: " 462 Naturalization Application " 950 Constitutionality of
" 446 Amer. w/Disabilities - " 540 Mandamus & Other " 465 Other Immigration State Statutes
Other " 550 Civil Rights Actions
" 448 Education " 555 Prison Condition
" 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
" 1 Original " 2 Removed from " 3 Remanded from " 4 Reinstated or " 5 Transferred from " 6 Multidistrict " 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
47 U.S.C. § 253
VI. CAUSE OF ACTION Brief description of cause:
Complaint for declaratory and injunctive relief regarding ordinance that violates, and is preempted by, federal law.
VII. REQUESTED IN " CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: " Yes " No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
08/08/2019 /s/ Geoffrey W. Castello
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


JS 44 Reverse (Rev. 08/18) Case 6:19-cv-06583-EAW Document 1-1 Filed 08/08/19 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
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date.
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Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
Case 6:19-cv-06583-EAW Document 1-2 Filed 08/08/19 Page 1 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT


for the
Western District
__________ DistrictofofNew York
__________

)
Cellco Partnership d/b/a Verizon Wireless )
)
)
Plaintiff(s) )
)
v. Civil Action No. 6:19cv06583
)
)
City of Rochester )
)
)
Defendant(s) )

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) City of Rochester


c/o Law Department
30 Church Street
4th Floor
Rochester NY, 14614

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
Geoffrey W. Castello
Kelley Drye & Warren LLP
101 Park Avenue
New York, NY 10178

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk
Case 6:19-cv-06583-EAW Document 1-2 Filed 08/08/19 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No. 6:19cv06583

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)


was received by me on (date) .

" I personally served the summons on the individual at (place)


on (date) ; or

" I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or

" I served the summons on (name of individual) , who is


designated by law to accept service of process on behalf of (name of organization)
on (date) ; or

" I returned the summons unexecuted because ; or

" Other (specify):


.

My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc: