United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED August 4, 2023 No. 22-20454 Lyle W. Cayce ____________ Clerk

Crown Castle Fiber, L.L.C.,

Plaintiff—Appellee,

versus

City of Pasadena, Texas,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-3369 ______________________________ Before Smith, Higginson, and Willett, Circuit Judges. Jerry E. Smith, Circuit Judge: This case is part of the battle between telecommunications providers that are attempting to expand next-generation wireless services (commonly called 5G) and municipalities that are resisting that expansion. Although the usual fights over installation of new technology involved local governments’ imposing hefty fees,1 the City of Pasadena used another method: aesthetic- design standards incorporating spacing and undergrounding requirements.

_____________________ 1 See, e.g., City of Portland v. United States, 969 F.3d 1020, 1035–36 (9th Cir. 2020). Case: 22-20454 Document: 00516847427 Page: 2 Date Filed: 08/04/2023

No. 22-20454

The city invoked those requirements to block Crown Castle’s 2 ability to develop a 5G network in the region, and Crown Castle sued for relief. Congress and the Federal Communications Commission (“FCC”) anticipated those strategies and previously had passed the Federal Telecom- munications Act (“FTA”) and responsive regulations. As a result, the dis- trict court decided in favor of Crown Castle, primarily basing its decision on the expansive language of the FTA and an FCC ruling interpreting the Act in light of 5G technology and associated challenges. The court determined that the City of Pasadena’s requirements that functionally blocked the build- out of Crown Castle’s infrastructure were preempted by the FTA. It entered summary judgment for Crown Castle and imposed a permanent injunction prohibiting the city’s use of its Design Manual. We agree with the district court. The FTA preempts the city’s spac- ing and undergrounding requirements, and the city forfeited its arguments relating to the safe-harbor provision in the FTA. Nor did the district court abuse its discretion in ordering a permanent injunction. We affirm.

I. Telecommunications providers are expanding 5G networks through- out the country. But 5G requires higher radio frequencies than did previous- generation networks, thereby requiring telecommunications and mobile ser- vice providers to install new equipment and infrastructure. Previous net- works used tall towers spaced far apart to provide service, as the lower- frequency waves they used could travel long distances and through objects. In contrast, the higher radio frequencies used for 5G communications

_____________________ 2 Crown Castle Fiber, L.L.C., is referred to as Crown Castle by both parties. This designation als