United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is the motion of Plaintiff, the City of Austin
(“City”), for a preliminary injunction, (Dkt. 4).
Plaintiff seeks an order from this Court enjoining
Defendants, Governor Greg Abbott and the State of Texas, from
implementing SB 1004,  a bill passed by the Texas Legislature
scheduled to take effect on September 1, 2017.
this year, the governor signed SB 1004, a new law that
imposes certain standards on the permitting process for
telecommunications companies seeking to install pieces of
equipment called “small cell nodes.” These small
cell nodes are of interest to providers of cellular service
because they provide the capacity to reliably serve large
crowds, and because they will form the basis for the
development of a new kind of wireless network-5G.
(See Resp. to Mot. Prelim. Inj., Dkt. 9, at 3). Up
until now, municipalities have enjoyed the authority to
impose fees on applications to install and use small cell
nodes and rule on the applications when they see fit (within
certain parameters established by the Federal Communications
Commission). The City of Austin, for instance, has been
charging an application fee of $1, 250 per small cell permit
application and an annual rental fee of $1, 500 per year for
use of traffic signal poles downtown. (Mot. Prelim. Inj.,
Dkt. 4, at ¶ 9). Once SB 1004 goes into effect, however,
such fees will be capped, and municipalities will be forced
to act within a shorter time frame on applications for small
cell node permits. In particular, SB 1004 places two temporal
restrictions on the application process: a prohibition of
“moratoria, ” or periods where a municipality
refuses to issue permits, and the imposition of a “shot
clock, ” or a specified time period within which an
application must be reviewed. (See Mot. Prelim.
Inj., Dkt. 4, at ¶¶ 54, 56). To prevent the
implementation of SB 1004, scheduled to take effect on
September 1, 2017, the City moved for a preliminary
injunction. A hearing was held on August 30, 2017.
preliminary injunction is an extraordinary remedy. This
remedy is to be granted only if a plaintiff demonstrates (1)
likelihood of success on the merits; (2) irreparable harm in
the absence of preliminary relief; (3) that the balance of
equities tips in plaintiff's favor; and (4) that an
injunction is in the public interest. Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). The party
seeking injunctive relief carries the burden of persuasion
for all four requirements. PCI Transp. Inc. v. Fort Worth
& W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).
City's opening brief, it put forth two legal bases for
enjoining the new law: (1) federal preemption; and (2) that
the law effects an unconstitutional taking of private
property without just compensation. Because the City did not
respond in its Reply brief to Defendants' arguments
concerning its takings claim or argue the matter at the
hearing, its takings argument is deemed waived with respect
to its motion for a preliminary injunction. Therefore, the
Court will consider only the City's federal preemption
claim, and determine whether this claim entitles the City to
the injunction it seeks.
Standing, Sovereign immunity
preliminary matter, the Court addresses Defendants'
jurisdictional arguments. Defendants argue that (1) the City
lacks standing to bring this suit; (2) the State is immune
from suit as a result of sovereign immunity; and (3) Governor
Abbott is not a proper defendant. None of these arguments
prevents the Court from hearing this case.
III standing requires (1) an injury in fact; (2) a causal
connection between the injury and the conduct complained of;
and (3) a likelihood that a favorable decision will redress
the injury. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992). Here, Defendants dispute causation and
redressability. However, the City has pleaded facts
sufficient to demonstrate that the law's implementation
will cause the City to lose revenue, and that an injunction
preventing the law from taking effect would redress that
injury. (See Mot. Prelim. Inj., at ¶¶ 9,
are correct to point out that “the Constitution does
not provide for federal jurisdiction over suits against
nonconsenting States.” Kimel v. Florida Bd. of
Regents,528 U.S. 62, 73 (2000). Congress may abrogate
state sovereign immunity under certain circumstances, but it
is not argued here that Congress has done so. Rather, the
City relies upon Ex parte Young,209 U.S. 123
(1908), which permits a suit for injunctive relief against a
state official charged with enforcing a state law. See
Morris v. Livingston,739 F.3d 740 (5th Cir. 2014).
Defendants contend that the governor is not a proper official
to be named in this lawsuit, and that this case should
therefore be dismissed, because neither the State nor the
governor can be sued. The City does not dispute
Defendants' assertion that the State has sovereign
immunity here and ...