T-Mobile has several “overarching objections” to the May 7 report in which Ben Levitan, the new RF expert hired by Roswell, Georgia, concluded it would be “overkill” for T-Mobile to build a 108-foot cell tower to remedy a significant wireless coverage gap (see 2405080002), said Levitan’s memorandum Monday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia. It said T-Mobile is unaware “of the source of the cell phone coverage maps” Levitan used in his report and analysis. “This is odd, because these maps are the simulation maps created by T-Mobile themselves and used in their application to show their gap in 4G cell service in Roswell, and the simulation of the improvement that their proposed cell tower will bring,” said the memorandum. These maps have been “the key” to T-Mobile’s argument for the new cell tower since the dispute began in 2010, it said. Contrary to T-Mobile's argument that the report fails to cite the source of these maps, the proper citations are in the report, but even without a citation, the maps “should have been easily recognizable to T-Mobile,” it said. Levitan’s report found that T-Mobile’s concerns about a lack of cellphone service to a specific 0.9-square-mile area of Roswell, and the inability for residents in that area to have 911 service, are “unfounded,” said the memorandum. Levitan also found that 5G service is "ubiquitous throughout Roswell," it said: “As new generations of the cell phone networks are designed, they fully incorporate the functionality of previous generations, and as such, any 3G, 4G or LTE phone operating in a 5G network will work fine. This backward compatibility means that there is no need to update the 4G coverage in the gap area as it is fully covered by 5G.” T-Mobile’s lawsuit against Roswell for the city's denial of its cell tower application turned 14 years old on Monday.
T-Mobile’s new 108-foot cell tower proposed for Roswell, Georgia, likely won’t remedy the significant gap T-Mobile has in LTE service in the area, and so there’s “no technical justification” for the tower, said the preliminary engineering report Tuesday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia of Ben Levitan, the city’s new expert witness (see 2404230002). The court approved Levitan as the city’s substitute expert witness March 25 after its previous expert resigned unexpectedly March 2, citing stress from the assignment (see 2403110001). Levitan found that T-Mobile’s 4G/LTE service in Roswell would improve by only 2% if T-Mobile’s tower application is approved, leaving more than 52% of the area with no 4G/LTE service at all, said his report: “It is my opinion that this tower is unnecessary to solve the claimed problems T-Mobile is trying to fix." T-Mobile’s concerns about a lack of cellphone service to the specified 0.9-square-mile-area and the inability of residents in the area to have 911 service “are unfounded,” it said. If, however, T-Mobile's claims “are taken at face value” and the company wants to increase the number of people who can use T-Mobile’s service in the Roswell area, “there are numerous industry standard engineering options which will repair the gap with no additional equipment and spare T-Mobile the cost of a new 110-foot monopole cell tower,” it said. One option is small cells, said the report. The carrier “currently boasts 43,800 such cells providing coverage and capacity improvement to small pockets of weak service throughout the country,” it said. “As such, this discussion could lead to the city and T-Mobile agreeing on a solution that would likely be more favorable to T-Mobile in achieving their goals," and also satisfy the concerns of Roswell residents, it said. The proposed 110-foot facility is clearly "overkill" for fixing the claimed service gap, and it’s “cost-prohibitive to solve the problems claimed,” it said. T-Mobile’s responsive expert witness report is due June 19.
Verizon and Lavallette, New Jersey, agree that an in-person settlement conference “may facilitate resolution” of their small-cells dispute, said their joint status report Wednesday (docket 3:23-cv-23072) in U.S. District Court for New Jersey in Trenton. Verizon sued Lavallette and its council in December to challenge their “unreasonable and unsupported denial” of Verizon’s application for permit approval for the installation of five small cells within the borough’s public rights of way (see 2312140038). Verizon and Lavallette further agree that the in-person settlement conference should require the attendance of the parties, specifically the borough’s mayor and a Verizon representative “with full settlement authority," said the status report. The parties further agree that if a tentative agreement is reached at the settlement conference it will be subject to review and approval by the borough’s governing body, it said. The parties agree that an in-person settlement conference in the beginning or middle of August is feasible, it said.
The 9th U.S. Circuit Court of Appeals denied AT&T’s March 5 motion for reversal of the district court’s decision finding summary judgment in favor of Lane County, Oregon (see 2402190001), said Circuit Judges Mark Bennett, Ryan Nelson and Eric Miller in an order Friday (docket 24-855). The denial is without prejudice to AT&T’s raising the arguments in its opening brief, which is due May 24, said the order. Lane County’s answering brief is due June 24, and AT&T’s optional reply brief is due within 21 days after service of the answering brief, said the order. The carrier contends that the district court wrongly found it was obligated to appeal the county’s denial of its cell tower application to the Oregon Land Use Board of Appeal. The district court ruled that AT&T failed to exhaust its administrative remedies and granted summary judgment for Lane County “without having to reach the merits of either party’s summary judgment arguments” about the county’s decision in denying the cell tower.
Kootenai County, Idaho, seeks summary judgment against AT&T on the grounds that “there are no genuine issues of material fact” that exist to preclude it, and because the county “is entitled to summary judgment as a matter of law,” said its motion Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho. AT&T, in a year-old complaint, seeks declaratory and injunctive relief based on the county’s denial of its June 2022 application for a conditional use permit to build, operate and maintain a wireless telecommunication facility in the state's northwest corner, near the Washington border (see 2303300046). An “actual and justiciable controversy” exists in this case because the carrier seeks a reversal of the county’s denial of its application for a proposed wireless telecommunications facility, while the county “is vigorously defending that decision,” said the Kootenai’s memorandum in support of its motion. The defendant’s decision to deny AT&T’s application “was based on substantial evidence in the record,” as was required under the Telecommunications Act, it said. The county received 136 public comments regarding the application, it said. Most of the people who commented lived near the facility site, “and most of the comments were opposed to the proposal,” it said. Some comments “included extensive presentations and other materials in support of their position,” it said. Numerous people also testified, mostly in opposition, to the proposal at the four public hearings, it said. Kootenai’s denial doesn’t “effectively prohibit” AT&T from providing telecommunications services locally, said the memorandum. Both the carrier and the county have “specifically requested expedited review” of the county’s denial decision, it said. Consideration of evidence submitted outside the record made during the proceedings before the county “would be inconsistent with the expedited review that both parties have requested,” it said.
AT&T seeks summary judgment against Walla Walla, Wahington, for the city’s denial of its application for a conditional use permit to build a 65-foot cell tower (see 2312040002), said its motion Thursday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland. AT&T seeks the tower to provide and improve wireless services in a specific area of the city, said the motion. Federal law “limits local governments from preventing installation of wireless facilities, based on the nationwide goal of promoting availability of reliable wireless service,” it said. Walla Walla violated federal law by denying AT&T’s application, it said. Because the evidence submitted in support of this motion establishes there are no disputed issues of material fact, the carrier “is entitled to summary judgment as a matter of law,” the motion said. It asks that the court order the city to approve the application and “any and all other authorizations necessary” for construction and operation of the proposed tower. AT&T’s wireless network “has experienced significant service problems” in the Walla Walla area for years, said its motion. By 2022, the carrier had solved its coverage gap in downtown Walla Walla, after the city approved an application to collocate AT&T facilities on an existing tower, it said. "That AT&T site has now been built and is on air," it said. But the significant service coverage gap in the the city's eastern residential portion -- the subject of the litigation -- “remains to this day,” it said. Placing a new wireless facility in this location is difficult due to Walla Wall’s zoning regulations “and the area’s residential makeup,” it said.
STC Two and Global Signal didn't adequately explain how recovery of rent they paid during defendant Thomas Branham’s breach of contract of a tower lease agreement would place them “in as good a position as it would have been in but for the breach,” said U.S. District Judge James Graham’s signed opinion and order (docket 2:23-cv-00764) granting in part and denying in part their motion for summary judgment Thursday in U.S. District Court for Southern Ohio in Columbus. The plaintiffs' Feb. 24, 2023, fraud complaint (see 2302280015) alleged Branham “willfully breached” a lease with STC for a 2,500-square-foot section of his property that employees of Global Signal, STC’s attorney-in-fact for the cellsite, had been accessing for over 20 years when he installed a padlock on the gate at the entrance to the cellsite and refused to remove it. STC and Global Signal sought damages of over $75,000 plus interest, attorneys’ fees and costs and a declaration that Branham is prohibited from interfering with plaintiffs’ and their customers’ maintenance and operation of the cellsite. Graham denied counts one and two, that Branham is liable for breach of contract because, although the defendant doesn’t dispute the claim, he argued that plaintiffs didn’t establish “actual loss.” Count two, seeking declaratory relief, is moot, the judge said. Graham granted plaintiffs’ motion in count three for a permanent injunction against Branham, determining that plaintiffs’ injury suffered -- no unfettered access to the leased premises and potential for future harm -- “is irreparable, and cannot be adequately remedied with monetary damages.” Permanently enjoining Branham from interfering with plaintiffs’ access also serves the public interest “by ensuring reliable wireless communications services,” the order said. Branham is permanently enjoined from blocking or otherwise interfering with plaintiffs’ access easement over the property to the cellsite 24/7 and from maintaining a padlock on the gate at the entrance of the property without providing plaintiffs a key, the order said. The court granted summary judgment to STC Two and Global Signal in an award of attorneys’ fees pursuant to the terms of the lease. A hearing will be set to determine the reasonableness and amount of attorney fees to be awarded, it said.
T-Mobile and the city of Roswell, Georgia, are asking U.S. District Judge Amy Totenberg for Northern Georgia in Atlanta to set May 6 as the deadline for the city to serve the report of its new “proffered expert,” Ben Levitan, in the city’s cell tower fight against T-Mobile, said the parties’ proposed content scheduling order Monday (docket 1:10-cv-01464). T-Mobile’s responsive expert witness report would be due June 19, and discovery would be complete by July 12, said the proposed order. Totenberg approved Levitan as the city’s substitute expert witness March 25 after its previous expert resigned unexpectedly March 2, citing stress from the assignment (see 2403110001).
Plaintiff homeowners Gary Blum and Lucia Billiot struck an agreement with AT&T, Lumen and Verizon to permit the defendants to conduct “certain usual, routine, or ordinary-course-of-business maintenance” on the telecom cables that are the subject of their litigation, including lead-covered cables, said their joint stipulated motion Friday (docket 6:23-cv-01748) in U.S. District Court for Western Louisiana in Lafayette. The complaint is believed to be one of the first class actions brought by homeowners against the telecom industry for legacy lead-laden cables that reduced their property values (see 2312140001). Blum and Billiot allege that the defendants have left behind an extensive network of lead-covered cables and other associated lead equipment stretching across Louisiana. They further allege that the cables are an unlawful intrusion on private property and are causing all plaintiffs and putative class members “property damage and a risk to human health." The parties acknowledge that the defendants must be able to conduct usual, routine maintenance of their telecom infrastructure and associated equipment, “potentially including any lead-containing infrastructure, during the pendency of this litigation,” said their stipulated motion. If the defendants were to be unable to conduct that routine maintenance, “telecommunications services to the public may be interrupted,” it said. The maintenance activities “shall proceed in the ordinary course without any new or additional documentation or other measures beyond what would typically take place for such activities in the ordinary course,” it said. The defendants will be permitted to conduct business-as-usual activities on any of their telecommunications infrastructure and associated equipment, “including lead-containing telecommunications equipment," on all property in Louisiana, except for the named plaintiffs’ property, without notice to those plaintiffs or members of the putative class, said the motion. Actions taken in the course of conducting such activities “shall proceed in the ordinary course without any new or additional documentation or other measures” required of the defendants, beyond what would typically take place in the defendants’ usual business process, it said.
U.S. District Judge Christy Criswell Wiegand for Western Pennsylvania in Pittsburgh dismissed with prejudice AT&T’s three-yearlong small-cells infrastructure complaint against Pittsburgh, said her text-only docket entry Wednesday (docket 2:21-cv-00443). The dismissal was based on the parties’ joint stipulation Monday where the city said it had completed work on a “cost model” to determine fee schedules for installing small cells in the public rights of way. AT&T advised Pittsburgh April 9 that the city’s proposed updated fees would resolve the litigation, assuming the city council ultimately adopts those updated fees, said the stipulation. Pittsburgh advised the carrier that it expects formal council approval of the updated fee schedule but not before June, it said. Rather than further extend the court’s “ultimate disposition of this matter,” and anticipating that council will “act favorably” to adopt the updated fee schedule, the parties stipulated and agreed to dismissal of the action, it said. AT&T sued Pittsburgh in April 2021 after attempting to place small cells on poles in the city’s rights of way, allegedly to provide and improve wireless services. The Telecommunications Act limits the ability of municipalities to block installation of such facilities, and AT&T alleged that the city violated the TCA by blocking the installations.