No. 02 C $147 Page 4

tenant that happens to lease space to wireless providers, particularly after a tower has been
constructed in the area. Plaintiff's complaint amounts to nothing more than a breach of the
contract.
Count I - § 1983

While there is a split of authority on the issue of whether the Telecommunications Act
creates a right that can give rise to a § 1983 violation’, we do not need to answer that question
here. As stated above, the defendant has not infringed on any right that the plaintiff may have
pursuant to the Telecommunications Act.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss Counts I and II of plaintiff's

complaint is granted.

JAMES B. MORAN
or Judge, U. S, District Court

04. 1g , 2002.

?See Nextel Partners Inc. v. Kingston Tp., 286 F.3d 687 (3 Cir. 2002) (holding that the
Telecommunications Act cannot give rise to a §1983 claim); see also AT&T Wireless PCS, Inc. v. City of
Atlanta, 210 F.3d 1322 (11" Cir, 2000), vacated pending reh’g en banc, 260 F.3d 1320 (11" Cir. 2000), and
appeal dismissed per stipulation, 264 F.3d 1314 (11" Cir. 2001) (holding that plaintiffs do have a §1983 claim
under the Telecommunications Act, in a decision that was reversed on other grounds).



No. 02 C 5147 Page3

Count I - Telecommunications Act

47 U.S.C. § 332 represents a compromise in the Telecommunications Act of 1996,
Congress sought to provide for the development of nationwide wireless services by facilitating
deregulation and encouraging competition, all while allowing state and local governments to
retain control over zoning decisions. See 142 Cong.Rec. H1078-03, *H1134. Local zoning
decisions are subject to a series of limitations. Specifically, “[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 wireless services.” 47 U.S.C. § 332(c)(7)(B)@) UD.

Plaintiff claims that conditioning the approval of the installation of the new equipment
on the rent increase has the “effect of prohibiting the provision of wireless services” because
it will result in plaintiff's inability to add VoiceStream, Verizon and Cingular’s equipment to
the tower. The problem for plaintiff is that the defendant’s actions do not amount to
regulation. Congress intended to ensure that state and local governments would not wield
their zoning power in a way that burdened wireless development by failing to approve
equipment installations that would eliminate significant coverage gaps’ and increase the
availability of wireless services. See 142 Cong.Rec. H1078-03, *H1134. But here the defendant
acts as a landlord, not as a regulator, which seeks additional compensation for additional use
ofits land. There is nothing to suggest that plaintiff cannot lease other space owned by others

nearby. Congress did not intend to interfere in contract disputes between a Jandlord and a

\ See Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64,
70 (3d Cir. 1999) (requiring wireless provider to demonstrate that decision to prohibit wireless communica-
tion must result in “significant gaps in the availability of wireless services” to state a claim under §332). In
the present case, plaintiff does not allege that defendant’s actions will result in significant gaps in coverage,
even from the specific providers.



*.

Minuls det Foren (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C5147 DATE 10/18/2002
CASE Tower Asset Sub, Inc. Vs. McHenry County Conservation etc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
f the motion bei
MOTION: of the motion being presented.]
Memorandum Opinion and Order
DOCKET ENTRY:
(1) im Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due
(4) im) Ruling/Hearing on set for at
(5) Qa Status hearing[held/continued to] [set for/re-set for] on. set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(ep) a Trial[set for/re-set for] on at
(8) ao {Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DFRCP4(m) O Local Rule 41.1 CFRCP41(a)\(1) OO FRCP4(a\(2).
(10) Ml [Other docketentry] Enter Memorandum Opinion and Order. Defendant’s motion to dismiss counts
Jand II of plaintiff's complaint is granted. Status hearing set for November 7, 2002 at 9:15am.

(il) @ {For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required. number of notices

Notices mailed by judge's staff. ee

Notified counsel by telephone. CCT. ras 2002
Y | Docketing to mail notices. }

Mail AO 450 form. dev vise / oO

Copy to judge/magistrate judge.

date maited notice
courtroom

deputy’s
initials

WAH

Date/time received in
central Clerk’s Office

sailing deputy initiats



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TOWER ASSET SUB, INC., a Delaware
corporation,

Plaintiff,
vs. No. 02 C 5147

McHENRY COUNTY CONSERVATION
DISTRICT,

weerererererervervv

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Tower Asset Sub, Inc. (Tower Asset) brought this action against defendant
McHenry Country Conservation District (Conservation District) alleging violations of the
Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(@)(N, civil rights violations pursuant to 42
U.S.C. § 1983, and contract claims. Defendant filed this motion to dismiss Counts I and II of
plaintiff's complaint. For the following reasons, that motion is granted.

BACKGROUND

The facts are taken from plaintiffs complaint. Tower Asset is in the business of owning
and operating towers that house wireless communications facilities. Typically, plaintiff leases
real property from owners under terms that allow it to construct, maintain and operate towers
that can hold wireless communication equipment for several providers.

On May 19, 1994, the Conservation District entered into an agreement with Smart SMR
of Illinois, Inc, d/b/a Nextel Communications (Nextel) allowing Nextel to construct, maintain

and operate a tower on land owned by the Conservation District in exchange for monthly


No. 02 C 5147 Page2

payments. Plaintiff is the successor-in-interest to Nextel and since September 1999 the
Conservation District has received and accepted the monthly payments from Tower Asset.
Nextel currently owns and operates the only wireless equipment installed on the tower. Under
the agreement plaintiff has the right to use the premises for any lawful purpose and may
transfer, with defendant’s consent, its interest in the premises, which consent may not be
unreasonably withheld.

Plaintiff has agreements with various national wireless providers, including
VoiceStream, Verizon and Cingular, pursuant to which these providers pay for the right to
maintain and operate wireless equipment on plaintiffs towers. Plaintiff hoped to enter into
agreements with VoiceStream, Verizon and Cingular to install equipment on the tower on the
Conservation District’s land. The Conservation District conditioned approval of such
installation on a series of specific conditions. The conditions would drastically increase the
costs to Tower Asset and make the deals with the additional wireless providers impossible.

DISCUSSION

In deciding a Rule 12(b)(6) motion to dismiss, the court must assume the truth of all

well-pleaded allegations, making all inferences in the plaintiffs favor. Sidney S. Arst Co. v.

Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7" Cir. 1994). The court should dismiss a

claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

Plaintiff's complaint consists of four counts: one alleging that defendants violated the
Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(ID, one alleging a violation of 42 U.S.C.

§ 1983, and two arising from the contract. Defendant moves to dismiss the first two.