Property Owner Blocking Crown Castle’s 5G Installation for Dish, Says Suit
T-Mobile and Crown Castle, the lessee and subtenant, respectively, in a long-standing cell tower lease agreement in Albuquerque, are locked in a dispute with the property owner over Crown Castle’s inability to upgrade the tower for Dish Network’s 5G network buildout, alleged the companies in a complaint Monday (docket 1:22-cv-00910) in U.S. District Court for New Mexico. The defendant property owner, Academy Medical Office, “actively obstructed” the companies’ efforts “to obtain a permit from the municipality that is necessary to complete certain work” at the facility, said the complaint.
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A November 2012 sublease authorized Crown Castle to “generally manage and operate” the facility on T-Mobile’s behalf, said the complaint. Crown Castle is authorized under the sublease to “negotiate and execute amendments, extensions, or renewals” of the cell tower lease, make “necessary modifications” to the facility, and further sublease the tower to “additional customers,” it said.
The lease agreement obligates Academy “to execute all documents required by any governmental authority in connection with any development of, or construction on,” the property, said the complaint. Beginning in August 2021, T-Mobile and Crown Castle sought Academy’s cooperation to execute documents needed to obtain permits or other government approvals for modifications and improvements to “facilitate the installation” of Dish equipment, it said.
Crown Castle has “an extensive and valuable business relationship” with Dish that “may be harmed,” along with Crown Castle’s “general reputation in the industry,” if Crown Castle “is unable to deliver collocation opportunities and other infrastructure for its customers,” including Dish, said the complaint. The FCC’s mandate requires Dish to meet a 70% “population coverage obligation” for its 5G network buildout by June, it said. The mandate will “effectively require” Dish to offer 5G service in every U.S. city with a population exceeding 500,000.
Based on its “location and coverage opportunities,” the facility was chosen as a “necessary site for deployment” of Dish’s network, such that installation of its equipment on the leased premises is “vital” to Dish’s success “in meeting its obligation under the FCC mandate,” said the complaint. With the time to complete installation of the Dish equipment estimated to be about six months, “time is of the essence in securing the permit needed to begin such construction and complete same by the FCC-imposed deadline,” it said.
If the Dish equipment is not “timely installed” at the facility, Crown Castle’s relationship with Dish “may be negatively impacted,” along with Crown Castle’s “reputation in the wireless communications industry,” said the complaint. Since Dish’s installation is intended to replace coverage previously provided by Sprint in the area, it will “protect the public from being deprived of necessary and essential communications services, including wireless E-911 service,” it said.
Defendant Academy “has been on notice and aware of the necessity” since at least August 2021 for Dish to deploy its equipment at the site, said the complaint. Yet Academy, “without just cause or adequate explanation, ... refused and continues to refuse to execute documents reasonably necessary to obtain permits or government approval required” for the installation of the Dish equipment.
T-Mobile and Crown Castle, “at all times material” to the dispute, “acted in good faith and strictly complied” with the terms of the lease agreement, said the complaint. Yet Academy “continued to obstruct” the Dish installation “by asserting a series of baseless positions in complete disregard of the facts,” the lease agreement and the law, it said.
Even if consent to the Crown Castle and Dish subleases were required under the lease agreement, which T-Mobile denies, “it is well settled under New Mexico law that a lessor must act reasonably when withholding consent to sublease because a lease is a contract and is governed by general contract principles of good faith,” said the complaint. It's apparent from Academy’s “now more than year-long pattern of obstructive conduct that it is acting and will continue to act to intentionally and in bad faith breach its contractual and other legal obligations,” it said.
The complaint seeks injunctive relief barring Academy from “unreasonably withholding consent” to the proposed construction and from interfering with T-Mobile’s and Crown Castle’s right to use the leased premises “for the transmission and reception of radio communication signals,” it said. Representatives of Academy didn’t respond to requests for comment. Dish, a nonparty to the lawsuit, also didn’t comment.