Ore. County Says It’s ‘Entitled’ to Summary Judgment in Tower Fight vs. AT&T
Lane County, Oregon, in its June 1 motion for summary judgment (see 2306020025), established that it’s “entitled to judgment as a matter of law” on AT&T’s claims the county violated Section 332 of the Telecommunications Act when it denied AT&T’s…
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application to build a new wireless tower, said the county’s reply Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene in support of its motion. AT&T’s application didn’t describe any personal wireless services it would be effectively prohibited from providing without a new tower, it said. Nor did AT&T provide “the basic information necessary” for the county to determine whether the proposed tower “was the least intrusive means to fill any alleged gap in coverage for personal wireless services,” it said. That’s the “sole and controlling test” for determining a Section 332 violation, it said. AT&T then failed to follow Oregon’s land use process, which requires an appeal to the Land Use Board of Appeals as the final step in a land use application, it said. AT&T now asks the court to consider new evidence never provided to the county in the application process, it said. That would effectively bypass the local zoning process that Congress “expressly preserved” when it enacted Section 332, it said. The “material facts” in the case aren’t in dispute, it said. Under binding 9th Circuit precedent, the county “is entitled to judgment as a matter of law denying AT&T’s claims,” it said.