Sba Communications Corporation v. Public Service Commission of Kentucky

RENDERED: SEPTEMBER 15, 2023; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1440-MR

SBA COMMUNICATIONS
CORPORATION; SBA
INFRASTRUCTURE, LLC; SBA
TOWERS III, LLC; AND SBA
TOWERS VII, LLC APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 22-CI-00139

PUBLIC SERVICE COMMISSION OF
KENTUCKY; HARMONI TOWERS
LLC; AND NEW CINGULAR
WIRELESS PCS, LLC APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND JONES, JUDGES.

THOMPSON, CHIEF JUDGE: SBA Communications Corporation; SBA

Infrastructure, LLC; SBA Towers III, LLC; and SBA Towers VII, LLC
(hereinafter referred to as SBA) appeal from an order of the Franklin Circuit Court

which affirmed an order of the Public Service Commission of Kentucky

(hereinafter referred to as PSC). The PSC order denied SBA the opportunity to

intervene in 14 proceedings before the PSC involving Harmoni Towers, LLC and

New Cingular Wireless PCS, LLC.1 SBA argues that it should have been allowed

to intervene in the PSC proceedings. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

In 2020, Harmoni submitted 14 applications to the PSC seeking

permission to erect 14 different cellular telephone towers across the

Commonwealth. Harmoni intended to allow AT&T to install equipment on their

towers to allow AT&T to provide cellular service to its customers. In exchange,

AT&T would pay rent to Harmoni. Soon thereafter, SBA moved to intervene in all

14 proceedings. SBA argued that the new towers were unnecessary because

AT&T already had equipment on SBA towers which provided cellular service. In

addition, SBA argued that the new towers were located in close proximity to their

towers; therefore, the new towers were unnecessary. SBA claimed that if it were

allowed to intervene, it could provide evidence from experts showing that the new

towers would have little to no effect in improving cellular service in the areas the

1
New Cingular Wireless is doing business as AT&T Mobility; therefore, we will refer to it as
AT&T.

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new towers would be built. The PSC denied SBA’s motions to intervene. In 2022,

the PSC granted the applications and allowed Harmoni to build the new cellular

towers. SBA then appealed the PSC’s denials of their motions to intervene to the

Franklin Circuit Court. The court affirmed the decision of the PSC. This appeal

followed.

ANALYSIS

A person or entity seeking to intervene in a proceeding before the PSC

can do so pursuant to 807 KAR2 5:001E Section 4(11), which states in relevant

part:

(a) A person who wishes to become a party to a case
before the commission may, by timely motion, request
leave to intervene.

1. The motion shall include the movant’s full
name, mailing address, and electronic mail address
and shall state his or her interest in the case and
how intervention is likely to present issues or
develop facts that will assist the commission in
fully considering the matter without unduly
complicating or disrupting the proceedings.

2. The motion may include a request by movant for
delivery of commission orders by United States
mail and shall state how good cause exists for that
means of delivery to movant.

(b) The commission shall grant a person leave to
intervene if the commission finds that he or she has made
a timely motion for intervention and that he or she has a

2
Kentucky Administrative Regulations.

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 special interest in the case that is not otherwise
adequately represented or that his or her intervention is
likely to present issues or to develop facts that assist the
commission in fully considering the matter without
unduly complicating or disrupting the proceedings.

We review the denial of a motion to intervene for abuse of discretion. Biddle v.

Public Service Commission of Kentucky, 643 S.W.3d 83, 88 (Ky. App. 2021).

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

Before a cellular tower can be built, the entity seeking to build the

tower must first submit an application to the PSC and receive a certificate of

convenience and necessity. KRS3 278.020; KRS 278.650; and KRS 278.665. As

part of the application, the entity seeking to build the tower must provide the

following:

A statement that the utility has considered the likely
effects of the installation on nearby land uses and values
and has concluded that there is no more suitable location
reasonably available from which adequate service to the
area can be provided, and that there is no reasonably
available opportunity to co-locate, including
documentation of attempts to co-locate, if any, with
supporting radio frequency analysis, where applicable,
and a statement indicating that the utility attempted to co-
locate on towers designed to host multiple wireless
service providers’ facilities or existing structures, such as

3
Kentucky Revised Statutes.

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 a telecommunications tower, or another suitable structure
capable of supporting the utility’s facilities[.]

807 KAR 5:063 Section 1(1)(s).

In the applications filed in this case, Harmoni and AT&T indicated

that the new towers were needed in order for AT&T to provide adequate cellular

coverage to the service area. The applications also indicated that Harmoni and

AT&T found no reasonably available opportunities in which to co-locate AT&T’s

equipment on existing structures and that there was no suitable or available co-

location structure located within the vicinity of the new tower’s building site.

As previously stated, when SBA moved to intervene, it provided

evidence that it had towers in close proximity to the proposed building sites of the

new towers and that AT&T already had its equipment on these towers. SBA also

indicated it could provide expert testimony regarding the whether or not the new

towers would improve cellular service.4 In essence, SBA argued that Harmoni and

AT&T misled the PSC by omitting this information from their applications and

that it should be allowed to intervene in order to “develop facts that assist the

commission in fully considering the matter[.]” 807 KAR 5:001E Section 4(11)(b).

Harmoni and AT&T objected to the motions to intervene. They

admitted that AT&T was already using SBA towers, but that SBA was requiring

4
Also known as radio frequency analysis in 807 KAR 5:063 Section 1(1)(s).

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too high an amount in rent and other fees and that Harmoni would charge AT&T

lower amounts. AT&T argued that the SBA tower rental and fee amounts were

unreasonable and necessitated the new towers.

On appeal, SBA argues that the PSC abused its discretion in denying

its motions to intervene. It claims that only after it filed the motions to intervene

did Harmoni and AT&T disclose relevant information to the PSC and that had it

been allowed to intervene, it is likely additional relevant information would have

been revealed.

We find no error in this case. SBA’s primary issues with the

applications at issue were that Harmoni and AT&T did not provide sufficient

information regarding AT&T’s use of SBA towers, SBA tower locations in

proximity to the proposed tower locations, and a radio frequency analysis. SBA

provided all of this information in their motions to intervene and they were

included in the administrative record. Nothing in the record indicates that the PSC

did not take this evidence into consideration when granting permission for

Harmoni and AT&T to build the new towers. SBA does not indicate what other

relevant information it could provide should it have been allowed to intervene.

Might this Court have decided differently if we were in the shoes of

the PSC? Maybe, however, “a reviewing court . . . should refrain from reversing

or overturning an administrative agency’s decision simply because it does not

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agree with the agency’s wisdom.” Kentucky Unemployment Ins. Comm’n v.

Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 582 (Ky.

2002) (citation omitted). Here, the PSC had all of the relevant information

required by statute and its regulations and chose to issue Harmoni certificates of

convenience and necessity, thereby allowing it to build the new towers. We find

no error in denying SBA’s motions to intervene.

SBA raises other issues on appeal which we will briefly discuss.

First, SBA claims that the denials of its motions to intervene were unreasonable

because the PSC violated precedent. In a different proceeding before the PSC

concerning the building of a broadband network, the PSC allowed a competitor to

intervene in a limited capacity when a company sought to build a broadband

network. SBA argues this set the precedent to allow competitors to intervene. We

find this argument is without merit. Allowing a competitor in one proceeding to

intervene in a limited capacity does not mean that all competitors should be

allowed to intervene in every PSC proceeding.

Next, SBA argues that the PSC abused its discretion because it was

unaware of the parties before it. The orders denying the motions to intervene only

mentioned AT&T, they did not mention Harmoni. SBA claims that this makes the

orders illegal and unreasonable. We disagree. Whether or not Harmoni was

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mentioned in the orders, the fact remains that the PSC found that SBA’s

intervention was unnecessary. Again, we find no error.

SBA also argues that the PSC misunderstood its jurisdiction. The

orders denying the motions to intervene discuss KRS 278.040(2) which states:

The jurisdiction of the commission shall extend to all
utilities in this state. The commission shall have
exclusive jurisdiction over the regulation of rates and
service of utilities, but with that exception nothing in this
chapter is intended to limit or restrict the police
jurisdiction, contract rights or powers of cities or political
subdivisions.

SBA argues that the PSC’s jurisdiction over the underlying proceeding does not

come from this statute because the PSC does not have jurisdiction over the rates

and services of cellular telephone services. SBA is correct that the legislature has

removed jurisdiction from the PSC over the rates and services of cellular

telephones, KRS 278.54611; however, the PSC does retain jurisdiction over the

construction of cellular telephone towers pursuant to KRS 278.650.

SBA argues that because the orders denying their motions to intervene

rely on KRS 278.040 and not KRS 278.650, they are unlawful and unreasonable.

While it may have been prudent to discuss KRS 278.650 instead of KRS 278.040,

it does not negate the underlying decision. The PSC found that, based on the

evidence in the record and the arguments of SBA, Harmoni, and AT&T, SBA was

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not necessary for it to make a determination over the issuance of certificates of

convenience and necessity. Again, we find no error.

Next, SBA argues that the PSC improperly allowed AT&T to file

confidential affidavits. In all but one of the PSC proceedings, AT&T filed

confidential affidavits regarding its use of SBA’s towers and the rent and fees it

has to pay. SBA argues that allowing AT&T to file these affidavits was improper.

We find no error here. First, 807 KAR 5:001E, Section 13 allows a party to

request that material filed with the PSC be made confidential. In addition, most of

the information contained in the affidavits, while deemed confidential, is found

elsewhere in the PSC record, the circuit court record, and the briefs before us.

Further, the SBA provided evidence to the PSC that it attempted to negotiate with

AT&T as it pertained to the rent and fees.

SBA’s final argument on appeal is that the PSC is not following its

regulations or requiring the mandatory information that is to be submitted with the

applications. In this case, the PSC believed Harmoni and AT&T provided the

required information in its applications. SBA then introduced additional

information and evidence that it believed was missing from the applications. The

PSC did not exclude SBA’s proffered information and there is no evidence to

suggest it was ignored. If the applications were inadequate as suggested by SBA,

then SBA’s filings cured any deficiencies.

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 CONCLUSION

Based on the foregoing, we affirm the judgment of the circuit court

and conclude that the PSC did not err in denying SBA’s motions to intervene.

ACREE, JUDGE, CONCURS.

JONES, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE PUBLIC
SERVICE COMMISSION OF
Edward T. Depp KENTUCKY:
R. Brooks Herrick
David N. Giesel Moriah Tussey
Louisville, Kentucky Nancy J. Vinsel
John E. B. Pinney
Justin W. Young
Frankfort, Kentucky

BRIEF FOR APPELLEES
HARMONI TOWERS, LLC AND
NEW CINGULAR WIRELESS PCS,
LLC:

David A. Pike
F. Keith Brown
Robert W. Grant
Shepherdsville, Kentucky

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