SF Says Court Can't Force Permits After 'Deemed Granted'
T-Mobile and San Francisco’s permitting dispute perplexed a federal judge Friday. "I'm still not at all convinced that I understand what the real dispute is here,” said Judge Susan Illston near the end of virtual argument at U.S. District Court…
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in San Francisco on the wireless carrier’s lawsuit alleging the city delayed permitting in violation of Spectrum Act Section 6409(a). Deemed granted is meant to be self-enforcing, Illston said as the hearing opened. “What I'm having a hard time understanding is why that is not the case." Neither party disagreed that the dozen applications at dispute were deemed granted because the city didn’t act within 60 days, as required by the section. San Francisco recognizes it can’t stop T-Mobile from installing facilities now with a deemed-granted notice but disagrees with the carrier wanting the court to force the locality to provide a permit, said San Francisco’s attorney Wayne Snodgrass. The municipality seeks to avoid people pointing fingers at the local government in a deemed-granted situation if, for example, there's a fire at a facility because the operator didn’t follow fire codes, he said: Issuing a permit would make the city responsible. If an application was deemed granted and the city tried to stop installation, the court may enjoin the municipality, Snodgrass said. “That is quite different" from compelling the city to issue its own local permit, "which is entirely a creature of local law,” he said. Section 6409 says the city shall approve applications, countered Mintz Levin attorney Scott Thompson for T-Mobile. "The city doesn't get to avoid that" by saying a deemed-granted notice is sufficient, he argued. The city continued asking T-Mobile questions about applications after running out the 60-day shot clock, and the carrier can’t deploy promptly with uncertainty, he said. The FCC recognized in 2014's order implementing Section 6409(a) that carriers may seek declaratory judgment and other remedies in court, Thompson said.