IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SKYWAY TOWERS LLC,

a Delaware Limited Liability Company,

v.

CITY OF POTH, TEXAS, the CITY 

COUNCIL OF THE CITY OF POTH, 

TEXAS, TAMI RAMZINSKI, ANABEL 

RAMON, CHUCK MORRIS, RONALD 

WEIMER, and STEVEN WIATREK, in 

their official capacities as members of the 

City Council of the City of Poth, Texas, and 

CHRYSTAL ECKEL, in her official 

capacity as Mayor of the City of Poth, 

Texas.

Defendants.

 CIVIL ACTION FILE NO. 5:20-cv-226

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

AND EXPEDITED TREATMENT

Plaintiff, Skyway Towers LLC (“Skyway”), by and through its undersigned attorneys, 

hereby files this Complaint against Defendants the City of Poth, Texas, the City Council of the 

City of Poth, Texas, Tami Ramzinski, Anabel Ramon, Chuck Morris, Ronald Weimer, and 

Steven Wiatrek, in their official capacities as members of the City Council of the City of Poth, 

Texas, and Chrystal Eckel, in her official capacity as Mayor of the City of Poth, Texas

(collectively, the “City”), alleging as follows:

Nature of the Action

This action arises out of the City’s unlawful denial of Skyway’s application to construct a 

wireless telecommunications facility on a commercially-zoned tract of land that is currently 

occupied by a car wash. The City’s denial is not supported by substantial evidence contained in 

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a written record and the denial effectively prohibits the provision of personal wireless service in 

the vicinity of the proposed facility. Accordingly, the City’s denial of Skyway’s application 

violates the federal Communications Act, as amended, 47 U.S.C. § 332(c)(7) (the 

“Communications Act” or “Act”), and Skyway is entitled to an order directing the City to grant 

Skyway’s application for the proposed facility. 

Plaintiff requests expedited treatment of this Complaint pursuant to 47 U.S.C. 

§ 332(c)(7)(B)(v).

Parties, Jurisdiction, and Venue

1. Plaintiff, Skyway Towers LLC (“Skyway”), is a Delaware Limited Liability 

Company authorized to transact business in Texas. Skyway constructs, owns, and manages 

wireless telecommunications facilities that are used by national and regional wireless carriers to 

provide personal wireless services to end-user consumers in Texas and throughout the country. 

2. Defendant City of Poth, Texas is a political subdivision of the State of Texas and 

is subject to the jurisdiction of this Court. 

3. Upon information and belief, Defendants Tami Ramzinski, Anabel Ramon, Chuck 

Morris, Ronald Weimer, and Steven Wiatrek are residents and domiciliaries of the Western 

District of Texas, and are members of the City Council of the City of Poth, Texas, and are 

subject to the jurisdiction of this Court.

4. Upon information and belief, Defendant Chrystal Eckel is a resident and 

domiciliary of the Western District of Texas, and the Mayor of the City of Poth, Texas, and 

subject to the jurisdiction of this Court. 

5. This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 

and 47 U.S.C. § 332(c)(7) because of the existence of federal questions arising under the 

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Communications Act of 1934, as amended by the Telecommunications Act of 1996 (the 

“Communications Act”). The Court has authority to issue declaratory judgment relief pursuant 

to 28 U.S.C. § 2201(a).

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) and 28 U.S.C. § 

90(a)(2) in that Defendants reside in this judicial district, the proposed wireless communications 

facility would be located in this judicial district, and a substantial part of the events or omissions 

giving rise to this action occurred in this judicial district.

Statement of Facts

Federal Statutory Control of Wireless Siting

7. The Communications Act governs federal, state and local government regulation 

of the siting of personal wireless service facilities such as the one at issue in this case. 47 U.S.C. 

§ 332(c)(7)(B).

8. The Communications Act further provides that any person adversely affected by a 

state or local government’s act, or failure to act, that is inconsistent with § 332(c)(7) of the 

Communications Act may seek review in the federal courts, and that the courts shall hear and 

decide the action on an expedited basis. 47 U.S.C. § 332(c)(7)(B)(v).

The Wireless Communications Service Industry

9. Skyway constructs, owns, and manages wireless communications facilities in 

Texas and elsewhere in the country. Skyway leases space on its facilities to national and 

regional wireless carriers who provide personal and advanced wireless services, as well as other 

telecommunications services, as those terms are defined under federal law, to end-user wireless 

consumers. In providing this valuable service to wireless carriers, Skyway is facilitating the 

development and deployment of advanced wireless and broadband connectivity consistent with 

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the goals of the Communications Act. Skyway also leases space on its facilities to federal, state, 

and local first responders, law enforcement, and public safety agencies.

10. AT&T provides commercial mobile radio services, personal and advanced 

wireless services, and other telecommunications services, as those terms are defined under 

federal law, in the State of Texas, including in the City of Poth.

11. AT&T is seeking to facilitate the maintenance and development of a wireless 

telecommunications network in keeping with the goals of the Communications Act. AT&T uses 

licenses issued by the FCC pursuant to 47 U.S.C. § 151 to provide wireless service in Poth, 

Texas.

12. Section 151 of the Communications Act establishes a national policy to “make 

available, so far as possible, to all people of the United States, without discrimination . . . a rapid, 

efficient, Nation-wide, and world-wide wire and radio communication service with adequate 

facilities at reasonable charges, for the purpose of national defense, [and] for the purpose of 

promoting safety of life and property through the use of wire and radio communications.” 47 

U.S.C. §151. 

13. To meet these policy goals, AT&T seeks to provide myriad wireless services to 

local businesses, public safety entities and the general public.

14. Likewise, to advance the national policies enumerated under 47 U.S.C. § 151 and 

repeatedly reiterated by the FCC, Skyway constructs towers and other wireless facilities that 

allow wireless carriers, such as AT&T, to create and maintain a network of “cell sites,” each of 

which consists of antennas and related electronic communications equipment designed to send 

and receive radio signals.

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15. To provide reliable service to a user, coverage from cell sites must overlap in a 

grid pattern resembling a honeycomb. If Skyway is unable to construct a cell site within a 

specific geographic area, the wireless carriers it serves, such as AT&T, will not be able to 

provide service to the consumers within that area.

16. To determine where a new wireless facility is required, radio frequency (“RF”) 

engineers use various techniques, such as sophisticated computer programs and field testing, to 

complete a propagation study, which shows where cell sites need to be located in order to 

provide service. The propagation study also takes into account the topography of the land, the 

coverage boundaries of neighboring cell sites, and other factors. For a wireless network to 

perform, cell sites must be located, constructed and operated so that reliable service can be 

achieved. If there is no functioning cell site within a given area, or if the cell sites around an area 

lack sufficient capacity to handle the amount of customer demand for limited wireless spectrum, 

there will be no reliable service for customers within that area, and customers who live or travel 

in the area will experience an unacceptable level of dropped calls and call connection failures.

The Proposed Facility & Application Process

17. Based upon research and analysis by RF engineers, AT&T determined that it has a 

significant gap in its ability to provide reliable service in the City of Poth, Texas.

18. This gap has been deemed significant by AT&T based on the population served 

and traffic in the area, and must be remedied in order for AT&T to provide reliable service to the 

targeted area.

19. AT&T’s RF engineers identified and provided Skyway with a search ring, and 

requested that Skyway develop a wireless communications facility somewhere within that area 

so that AT&T may remedy its significant gap in service.

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20. The majority of the search ring identified by AT&T is zoned R-1 or R-4 

Residential. There is a thin strip zoned General Business (“GB”) District along the east side of 

Highway 181 and South Sorts Street. There is also a FEMA flood plain that runs through the 

northwest end of the search ring. 

21. Skyway then investigated suitable properties in the vicinity of the search ring that 

were appropriate for a wireless communications facility. An appropriate candidate would have 

to (1) fill the gap in service, (2) have the potential to comply with the local zoning requirements, 

(3) be leasable, and (4) be buildable. A property that does not meet each of those requirements is 

not a viable candidate.

22. After a thorough investigation of the surrounding area, Skyway determined that 

there are no existing communications towers or structures that can accommodate collocation and 

remedy AT&T’s significant gap in service.

23. Skyway undertook a good faith analysis of potential locations for the wireless 

communications tower. Skyway evaluated and considered eleven (11) potential sites. 

24. From its analysis, Skyway identified a tract of land located at 505 South Storts 

Street, Moczygemba Subdivision, Block 1, Lot 4 and SE half of Lot 5, Poth, Texas (the “Subject 

Property”) and concluded that it (1) is in the search area, and thus sufficient to remedy AT&T’s

significant gap in service; (2) is in a zone that permits wireless communications facilities with a 

Specific Use Permit; (3) has a property owner willing to enter into a long-term lease for a portion 

of land for the construction of a wireless communications facility on commercially reasonable 

terms; and (4) is suitable for constructing and maintaining a wireless communications facility. 

25. Each of the other ten (10) alternative sites that Skyway evaluated and considered 

were ruled out for failing one of the four criteria identified in paragraph 21 above. 

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26. The Subject Property is zoned GB pursuant to the City’s Planning and Zoning 

Ordinance (#121911) (“Zoning Ordinance”), and is currently occupied by a car wash.

27. Skyway’s proposed wireless telecommunications facility is able to achieve 

adequate set backs on the Subject Property pursuant to the City’s Zoning Ordinance. 

28. The Subject Property provides the least intrusive means of filling a significant gap 

in AT&T’s ability to provide service in the City, and is the only feasible plan to remedy the 

significant gap in service.

29. Skyway agreed to lease terms with the property owner of the Subject Property, and 

the City issued Skyway a Building Permit to develop a wireless communications facility on the 

Subject Property.

30. Article I Section 3 of the City’s Zoning Ordinance states “[t]he Zoning 

Regulations and Districts as herein established have been made in accordance with a 

Comprehensive Plan for the purpose of promoting the health, safety and general welfare of the 

City. They have been designed to lessen the congestion in the Street; to secure safety from fire, 

panic and other danger; to provide adequate light and air; to prevent overcrowding of land; to 

avoid undue concentration of population and to facilitate the adequate provision of 

transportation, water, sewerage, schools, parks and other public requirements.” 

31. Article IX of the City’s Zoning Ordinance governs the GB Zoning District. The 

purpose of the GB Zoning District is to “provide for general commercial uses which serve a 

City-wide or regional area.”

32. Article XV of the City’s Zoning Ordinance governs Specific Use Permits. Section 

1.1 provides that the Council “may authorize the issuance of Specific Use Permits for zoning 

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specific uses set forth in Appendix A, Schedule of Uses, when situated within the Zoning 

Districts identified within the schedule.” 

33. Appendix A to the City’s Zoning Ordinance allows for towers like the one 

proposed by Skyway to be constructed in a General Business District with a Specific Use Permit.

34. On or about June 10, 2019, Skyway requested a preliminary meeting with the City 

Engineer, and paid the applicable $300 fee therefore, to discuss the location and construction of 

the proposed communications tower on the Subject Property.

35. On or about July 26, 2019, the City issued to Skyway a building permit for the 

construction of the proposed communications tower.

36. Pursuant to the building permit, Skyway began preparation and foundation work 

for the construction of the proposed communications tower.

37. On information and belief, at some point after issuance of the building permit the 

City determined that the building permit had been issued in error and that, pursuant to the Zoning 

Ordinance, a Specific Use Permit was required for the construction of the proposed 

communications tower.

38. On or about November 18, 2019, the City issued a Stop Work Order to Skyway, 

with which Skyway complied.

39. On or around that same date, the City informed Skyway that the proposed 

communications tower required approval of a Specific Use Permit before construction could be 

resumed.

40. On or about November 21, 2019, Skyway submitted an application for a Specific 

Use Permit for the proposed communications tower.

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41. On or about December 3, 2019, Skyway representatives met with Mayor Chrystal 

Eckel to discuss the proposed communications tower.

42. Subsequent to that meeting, Skyway submitted to the City an information package 

about the proposed communications tower. That package included: the Specific Use Permit 

application and cover letter submitted therewith; the site plan map included with the Specific Use 

Permit application; an engineering letter from the tower manufacturer; a map of the search ring 

provided by AT&T; an FCC Consumer Guide regarding Human Exposure to Radio Frequency 

Fields; and informational literature from the Wireless Infrastructure Association entitled 

“Wireless Networks and Your Health: THE FACTS.”

43.

Skyway’s Specific Use Permit Application is Denied Despite Receiving Recommendation 

for Approval by the Planning and Zoning Commission

44. On January 15, 2020, a public hearing was held before the City’s Planning and 

Zoning Commission (the “Commission”) to consider Skyway’s Specific Use Permit application. 

The Commission recommended that Skyway’s application be approved by the City Council.

45. On January 27, 2020, a public hearing before the City Council was held, during 

which Skyway’s Specific Use Permit application was considered. 

46. At both public hearings Skyway presented evidence and testimony supporting the 

application and explaining that the proposed communications tower complies with each of the 

relevant requirements of the City’s Zoning Ordinance.

47. Skyway presented proof, including propagation maps, of a significant gap in 

AT&T’s service in the City.

48. Skyway presented testimony from AT&T’s RF engineer, explaining the 

propagation maps and the need for both coverage and capacity in a wireless network.

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49. Skyway explained that it evaluated a number of alternative locations and that 

AT&T was unable to collocate on any other properties.

50. Skyway presented the City with an alternative site analysis of other properties that 

it had considered, along with the reasons that those properties were not suitable for the proposed 

communications tower.

51. Skyway presented the City with a letter from a professional engineer 

demonstrating that the proposed communications tower was designed to result in a “zero radius 

fall zone” in the event of an extreme wind event.

52. Skyway explained that the proposed communications tower will be part of the 

FirstNet system for public safety, a nationwide program that specifically dedicates space for 

public safety, which is critical in an open area such as the City. 

53. Because the proposed communications tower is a FirstNet site, it cannot be located 

within the floodplain, since it must be on air even during times of crises.

54. Skyway also explained that the proposed communications tower would support 

wireless connectivity for E911 systems, the City’s schools, and social media applications, which 

cities have found to be critical tools in the event of an emergency.

55. Four people spoke in opposition to the application at the City Council meeting. 

Some of the opposition was generalized “not in my backyard” objections to the tower. Other 

opposition was based on concerns for children’s health; safety concerns related to tower failure, 

falling debris, and buzzards; and generalized concerns related to the height of the tower. 

56. At the City Council hearing, the City’s attorney advised the City that its 

responsibility was to determine whether the application for the Specific Use Permit should issue 

because the proposed communications tower is compatible within the General Business district, 

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whether the proposed communications tower could be made compatible with specific conditions, 

or whether “there are no conditions that can be placed [on the proposed communications tower] 

that can make this compatible.”

57. Despite the generalized and speculative complaints raised by the citizens who 

spoke in opposition, the City did not consider or evaluate any conditions or mitigation factors 

that could apply to the proposed communications tower.

58. Council Member Tami Ramzinski made a motion to deny Skyway’s application 

for a Specific Use Permit “due to undesirable hazardous conditions, the odors, debris, feces of 

the buzzards, and offensive view that could happen.” The motion was seconded by Council 

Member Chuck Morris, who added that the application should be denied based on Article IX, 

Section 2.2 of the City’s Zoning Ordinance. 

59. The motion to deny passed unanimously. 

60. On January 29, 2020, the City provided Skyway with written notice that its 

Specific Use Permit application had been denied (the “Denial”). 

61. The Denial stated that: 

a. “[t]he City Council, being unable to determine a manner by which the proposed 

use can be compatible or made compatible with the surrounding, existing land 

uses, does hereby DENY the application for Special [sic] Use Permit based on all 

of the evidence considered before the City Council and for the following reasons:

After hearing citizens express concerns related to the safety from tower failure, 

falling debris, generator fumes, height of the tower, distance of the tower to 

adjacent residential property, tower height in comparison to other city structures, 

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nesting buzzards and their disease, toxic vomit and smell, and the defined General 

Business purpose and general compatibility provision in the zoning ordinance.” 

62. The Denial also referenced Councilmember Ramzinski’s “motion to deny the 

Specific Use Permit due to undesirable hazardous conditions, odor, debris, feces, buzzards and 

offensive view,” as well as Councilmember Morris’s request to base the denial on Article IX, 

Section 2.2 of the City’s Zoning Ordinance. 

63. The Denial also stated that the Mayor, who did not vote on the Application, added 

that “[t]he leg of the tower though technically had adequate set back, would only be 32 feet from 

the nearest home’s backdoor. The reasonable enjoyment of the neighbor’s property would be 

significantly jeopardized.” However, that statement was not made at the hearing or prior to the 

vote to deny Skyway’s Specific Use Permit application. 

Recent Federal Mandate Limits and Restricts the Factors and Issues That May Be 

Considered When Evaluating the Placement of New Wireless Communication Facilities

64. The FCC has recently limited the factors and issues that may be considered by the 

City in evaluating the placement of the proposed wireless communication facility.

65. In In the Matter of Acceleration of Broadband Deployment by Removing Barrier 

to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 

9088, 2018 WL 4678555 (2018) (Sept. 27, 2018) (the “FCC 2018 Order”), the FCC issued a 

declaratory ruling that definitively interpreted the “effective prohibition” language of Section 

332(c)(7)(B)(i)(II). The FCC declared that the standards adopted by the Fifth Circuit and other 

courts applying Section 332(c)(7)(B)(i)(II) were incorrect. Id. n.94. Instead, the FCC declared 

that “an effective prohibition [of service] occurs where a state or local legal requirement 

materially inhibits a provider’s ability to engage in any of a variety of activities related to its 

provision of a covered service.” Id. ¶ 37 (emphasis added). The FCC made clear that the City 

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effectively prohibits the provision of wireless services if it inhibits or limits the provider “not 

only when filling a coverage gap but also when densifying a wireless network, introducing new 

services or otherwise improving service capabilities.” Id. ¶ 37 (emphasis added). The FCC also 

made clear that an effective prohibition includes inhibiting a provider from deploying the 

“performance characteristics” of its choosing. Id. n.86. The FCC 2018 Order also declares that 

local governments cannot deny an application for a wireless site based on the alleged existence 

of alternative locations.

The City’s Denial Violates the Communications Act

66. The City’s denial of the Specific Use Permit application violates the 

Communications Act.

67. There is no evidence disputing the existence of a significant gap in AT&T’s

service in the vicinity of the Subject Property.

68. Skyway has presented testimony and evidence to the Commission and City 

Council concerning AT&T’s significant gap in service.

69. Skyway provided testimony and evidence that the proposed communications tower

meets the requirements for approval under the Zoning Ordinance.

70. There is no record evidence that approval of the Specific Use Permit application 

would be inconsistent with or violate the City’s Zoning Ordinance or any other applicable law.

71. Skyway presented testimony and evidence to the Commission and City Council 

that they thoroughly investigated the possibility of other viable alternatives, but that no other 

alternative was feasible or available.

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72. There is no record evidence refuting Skyway’s demonstration that they 

investigated thoroughly the possibility of other viable alternatives before concluding that no 

other alternative was feasible or available.

73. There is no evidence demonstrating the existence of viable alternatives that would 

remedy the significant gap in AT&T’s services and no viable alternative exists, or if one does 

exist it would not be less intrusive than the proposed communications tower.

74. There is no evidence in the written record suggesting that there are existing towers 

or alternative tower structures that are technically and commercially reasonably available for 

shared use or collocation.

75. To the contrary, the record evidence establishes that there were no viable 

collocation sites.

76. There is no substantial evidence to dispute any of the evidence submitted by 

Skyway.

77. Skyway has complied with all applicable procedural and substantive requirements 

of the City’s Zoning Ordinance and satisfied all applicable requirements and conditions 

precedent to obtain the requested relief from the City which would allow it to build and operate 

the proposed communications tower at the Subject Property.

78. Skyway has exhausted all administrative remedies for addressing the City’s 

actions.

79. This Complaint is timely filed within thirty days of the City Council’s final Denial

pursuant to 47 U.S.C. § 332(c)(7)(B)(v).

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COUNT I

(Violation of 47 U.S.C. § 332(c)(7)(B)(iii) – Substantial Evidence)

80. Skyway incorporates by reference and realleges the foregoing factual allegations 

in paragraphs 1 through 78 as if fully set forth herein.

81. Pursuant to 47 U.S.C. § 332(c)(7)(B)(iii), “[a]ny decision by a State or local 

government or instrumentality thereof to deny a request to place, construct, or modify personal 

wireless service facilities shall be in writing and supported by substantial evidence contained in a 

written record.”

82. Skyway satisfied all of the criteria set forth in the City’s Zoning Ordinance for 

approval of a Specific Use Permit to install a wireless communications facility on the Subject 

Property.

83. At the January 15, 2020 public hearing before the Commission, and January 27, 

2020 public hearing before the City Council, Skyway presented substantial and uncontroverted 

evidence regarding the need for the proposed communications tower and that the proposed 

communications tower was consistent with Article IX of the City’s Zoning Ordinance, including 

the City’s need for seamless wireless connectivity to support emergency, medical, public safety, 

and educational requirements; and an engineering letter attesting to the proposed facility’s 

structural integrity in the face of a severe wind event. There is no record evidence refuting 

Skyway’s substantial evidence that it met the City’s zoning criteria.

84. Skyway provided substantial and uncontroverted evidence sufficient to determine 

that operation of the proposed communications tower is a use in harmony with the general 

purpose and intent of the City’s Zoning Ordinance. There is no record evidence refuting 

Skyway’s substantial evidence that it met these criteria. 

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85. Skyway presented substantial and uncontroverted evidence, including RF 

propagation maps, regarding AT&T’s significant gap in service.

86. At the January 27, 2020 City Council hearing, four people spoke in opposition to 

the Application based on generalized “not in my backyard” concerns, health and safety concerns, 

and speculation that the proposed communications tower would attract buzzards. 

87. At the January 27, 2020 City Council hearing, the City Council voted unanimously 

to deny Skyway’s Specific Use Permit application. 

88. There is no substantial record evidence that the approval of the Specific Use 

Permit application would be inconsistent with or would violate the City’s Zoning Ordinance or 

other applicable law.

89. There is no substantial evidence to dispute any of the evidence submitted by 

Skyway, or to dispute the existence of a significant gap in AT&T’s service in the vicinity of the 

Subject Property.

90. There is no evidence in the written record suggesting that there are existing towers 

or alternative tower structures that are technically and commercially reasonably available for 

shared use or collocation. Nor is there any evidence demonstrating the existence of viable 

alternatives that would remedy the significant gap in AT&T’s service. 

91. Skyway complied with all applicable procedural and substantive requirements of 

the City’s Zoning Ordinance and satisfied all applicable requirements and conditions precedent 

to obtain the requested relief from the City to build and operate the proposed facility at the 

Subject Property.

92. The City’s denial of the application for the proposed facility is not supported by 

substantial evidence contained in the written record.

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93. Consequently, the City’s action is in violation of, and preempted by, Section 

332(c)(7)(B)(iii) of the Communications Act, and should be set aside and enjoined by the Court 

on that basis. Further, this Court should exercise its power to issue an order directing the City to 

approve the application for the proposed facility.

COUNT II

(Violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) – Effective Prohibition)

94. Skyway incorporates by reference and realleges the foregoing factual allegations 

in paragraphs 1 through 92 as if fully set forth herein.

95. Pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II), “[t]he regulation of the placement, 

construction, and modification of personal wireless service facilities by any State or local 

government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the 

provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). 

96. In the FCC 2018 Order, the FCC issued a declaratory ruling that definitively 

interpreted the “effective prohibition” language of Section 332(c)(7)(B)(i)(II). The FCC 

declared that the standards adopted by the courts applying Section 332(c)(7)(B)(i)(II) were 

incorrect. Id. n.94. Instead, the FCC declared that “an effective prohibition [of service] occurs 

where a state or local legal requirement materially inhibits a provider’s ability to engage in any 

of a variety of activities related to its provision of a covered service.” Id. ¶ 37 (emphasis 

added). The FCC made clear that the City effectively prohibits the provision of wireless services 

if it inhibits or limits a provider “not only when filling a coverage gap but also when densifying 

a wireless network, introducing new services or otherwise improving service capabilities.” Id. 

¶ 37 (emphasis added). The FCC also made clear that an effective prohibition includes inhibiting 

a provider from deploying the “performance characteristics” of its choosing. Id. n.86. The FCC 

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2018 Order also declares that local governments cannot deny an application for a wireless site 

based on the alleged existence of alternative locations.

97. The FCC 2018 Order is currently in effect, and it governs Skyway’s claim under 

47 U.S.C. § 332(c)(7)(B)(i)(II).

98. Under the FCC 2018 Order, AT&T has identified an area in which needs to install 

a wireless facility to provide coverage, network capacity, and ultimately provide service. AT&T 

has requested that Skyway find a property in that area and construct a communications tower that 

will meet AT&T’s needs. The City’s Denial of Skyway’s Specific Use Permit application 

materially inhibits or limits Skyway’s ability to install the proposed communications tower and 

thus materially inhibits or limits AT&T’s ability to provide its service at levels it deems 

appropriate. Accordingly, the City’s Denial amounts to an effective prohibition of personal 

wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).

99. In addition, or in the alternative, even following the standard for claims under 

Section 332(c)(7)(B)(i)(II) previously adopted by the Fifth Circuit, the City’s Denial of 

Skyway’s Application effectively prohibits AT&T from providing personal wireless service in 

violation of Section 332(c)(7)(B)(i)(II).

100. Skyway investigated alternative sites in and around the area of the site for the 

proposed communications tower within which the wireless carrier determined that a significant 

gap exists and that a wireless communications facility must be located to remedy the significant 

gaps in reliable service for the wireless carrier. 

101. No site other than the Proposed Site is technically feasible, practically available, 

consistent with the City’s zoning requirements, and suitable for construction.

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102. No potential alternative site is less intrusive than the proposed communications 

tower on the Subject Property.

103. There is no existing structure in or near the vicinity of the Subject Property that is 

both reasonably available and technologically feasible to remedy the significant gaps in personal 

wireless service in the area. 

104. The proposed communications tower on the Subject Property is the least intrusive 

means to close the significant gap in personal wireless service in light of the values sought to be 

served by the Denial.

105. The City’s Denial of the Specific Use Permit application causes an effective 

prohibition of personal wireless service in the area surrounding the proposed communications 

tower on the Subject Property.

106. Consequently, the City’s denial of the Specific Use Permit application is in 

violation of, and preempted by, Section 332(c)(7)(b)(i)(II) of the Communications Act, and 

should be set aside and enjoined by the Court on that basis. Further, this Court should exercise 

its power to issue an order directing the City to approve the Specific Use Permit application for 

the proposed communications tower.

WHEREFORE, Skyway respectfully requests that the Court:

(a) Conduct an expedited review of the matters set forth in this Complaint pursuant to 

47 U.S.C. § 332(c)(7)(B)(v);

(b) Adjudge that Defendants’ actions and decisions violated federal law and are 

therefore void and invalid;

(c) Overturn Defendants’ decision denying the requested Specific Use Permit;

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(d) Issue an order requiring Defendants to grant the Specific Use Permit application 

and all ancillary approvals and permits necessary for the construction of the 

proposed communications tower at the Subject Property; and 

(e) Grant such other and further relief in favor of Skyway as may be just and proper.

Respectfully Submitted,

SKYWAY TOWERS, LLC

By their attorneys,

_/s/ Daniel P. Reing_______________

Daniel P. Reing, Esq.

Bar Number: 73348

Courtney T. DeThomas, Esq. (application for 

admission forthcoming)

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Ave. NW, Suite 800

Washington D.C. 20006

202-973-4200

danielreing@dwt.com 

courtneydethomas@dwt.com

Bebb Francis, Esq.

Bar Number: 07360500

The Francis Law Firm, P.C.

112 E. Pecan Street, Suite 550

San Antonio, TX 78205

Tel. 210-222-1100

Fax 210-222-2468

wbfrancis@francislawfirm.com

Counsel for Plaintiff

Dated: February 25, 2020

Case 5:20-cv-00226 Document 1 Filed 02/25/20 Page 20 of 20