U.S. Magistrate Judge Mustafa Kasubhai for Oregon in Eugene scheduled oral argument via videoconference Sept. 19 at 9 a.m. PDT on the June 1 motions for summary judgment filed by plaintiff AT&T and defendant Lane County, Oregon, said the judge’s text-only entry Tuesday (docket 6:22-cv-01635). AT&T wants the court to say Lane County’s denial of its application for a wireless telecommunications facility “amounted to an effective prohibition” in violation of the Telecommunications Act, said its motion for summary judgment. AT&T also asks the court to order the county to approve the application and “any and all other authorizations necessary” for construction and operation of the proposed facility, it said. But AT&T “is barred from seeking redress” from the Oregon District Court because it failed to file an appeal of the county’s application denial with the Oregon Land Use Board of Appeals, said the county's motion. Lane County also denies it effectively prohibited AT&T from providing personal wireless services or telecommunications services, as AT&T alleges, said the motion.
U.S. District Judge Stephen Bough for Western Missouri in St. Joseph granted the joint stipulation of dismissal without prejudice of AT&T’s claims that the city of St. Joseph’s rejection of AT&T’s application for a conditional use permit to build a 175-foot cell tower was unlawful (see 2306140010), said the judge’s text-only order Tuesday (docket 5:23-cv-06023). The parties will bear their own costs and attorneys’ fees, said the order.
Crown Castle’s statement during Jan. 7 oral argument before the 5th U.S. Circuit Court of Appeals that the design manual of the city of Pasadena, Texas, “overtly” discriminates against small-cell technology (see 2306070069) “is simply incorrect,” the city wrote the 5th Circuit in a letter Monday (docket 22-20454). Crown Castle sued Pasadena in September 2020, asserting the Telecommunications Act preempts the spacing requirement in the city’s manual because that manual significantly limits the locations where it may install small-cell nodes and node support poles in the public rights of way. Pasadena is appealing the district court finding that a “plain reading” of the manual shows the spacing requirement for small-node networks is “clearly more burdensome” than the requirements applicable to other users of the public ROWs. Many Texas cities “have adopted the design manual as promulgated," including regulating each city’s ROW, in a manner that’s “statutorily beyond” the FCC’s “exclusive jurisdiction,” said the city. All cell technology “is equally regulated under the design manual” and the prohibition on erecting new poles in the city’s ROW, “the issue in this case,” applies equally “regardless of the technology utilized,” said the city. Though Crown Castle admitted it’s not in the Pasadena case a small-cell provider, neither the state statute nor the design manual quoting Texas law “contain any language prohibiting any provider from erecting network poles to support small cell technology,” said the letter. That’s “provided” that such construction “complies with the design manual patterned on state law,” it said. It’s the “same obligation imposed on a traditional cellular provider,” it said.
Plaintiff Cellular Solutions asks the U.S. District Court for Connecticut in New Haven to deny Verizon’s motion to dismiss its complaint (see 2306120032) because the lawsuit alleges “sufficient facts to support all required elements” of its claims for breach of contract, breach of the implied covenant of good faith and fair dealing and unfair and deceptive acts and practices, said its opposition Friday (docket 3:23-cv-00659). Cellular Solutions is a real estate firm that services rooftop leases with wireless telecommunications carriers, and its complaint alleges Verizon owes landlord Maxwell Realty more than $64,000 in municipal taxes for the space it’s leasing for wireless telecom equipment on a property in Bridgeport. “When accepted as true, the allegations of the complaint are more than sufficient to clear the low hurdle required to survive a motion to dismiss,” said the opposition. The court “should draw reasonable factual inferences in favor of Cellular Solutions, not against it, as Verizon implicitly requests," it said.
“Disputed factors favor intervention as of right” of 255 Kootenai County, Idaho, residents in AT&T’s cell tower fight with the municipality, said the residents’ reply Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho in support of their motion to intervene. AT&T opposes the motion, and the county takes no position (see 2307170016). The intervenors “have protectable interests” that are distinct from those of the county and may not be “adequately advanced” by the municipality, said the residents. AT&T contends the residents “lack any protectable interest warranting intervention,” but that conclusion “is mistaken,” they said. The pre-litigation history of AT&T’s dispute with the county bolsters the intervenors’ argument that the municipality may not adequately represent or protect the residents’ interests, they said. The 9th Circuit has said the burden on proposed intervenors in showing inadequate representation of their interests by existing parties is “minimal,” and is satisfied if they can demonstrate that representation may be inadequate, they said. The best evidence supporting the claim the county won’t or can’t adequately represent and protect the residents’ interests is when the county voted against those interests, and in AT&T’s favor, “when first given the chance,” they said. Only after the residents filed “multiple requests for reconsideration” did the county “align itself with and protect the same interests” as the residents, they said.
U.S. Magistrate Judge Steven Tiscione for Eastern New York in Central Islip convened a settlement conference Wednesday in AT&T’s cell tower dispute with the village of Oyster Bay Cove, New York, but the parties “were unable to reach a disposition at this time,” said a civil minute entry Thursday (docket 2:22-cv-07807). The judge previously denied the village’s motion to cancel the settlement conference on grounds that it would be futile for resolving the case (see 2306300021). The parties will continue with discovery and will advise the court “if a further settlement conference would be productive,” said the minute entry. AT&T’s Dec. 22 complaint alleges the village’s denial of its cell tower application violated the Telecommunications Act by prohibiting the carrier from providing wireless telecommunications services. AT&T further contends the village failed to act on its application before the statute's shot clock expired, and the denial wasn’t based on substantial evidence in a written record, as the TCA requires.
U.S. Magistrate Judge Anne Shields for Eastern New York in Central Islip scheduled an in-person initial case management conference Nov. 8 at 11:30 a.m. on T-Mobile’s infrastructure complaint against the town of Oyster Bay, New York, said her signed order Wednesday (docket 2:23-cv-05339). T-Mobile’s July 13 complaint alleged Oyster Bay’s denial of T-Mobile’s application for a rear yard variance necessary to install and operate a wireless telecom facility to remedy a significant gap in wireless services was “unreasonable and unsupportable” (see 2307140001). T-Mobile also alleged the town imposed “unreasonable, excessive, and prohibitive escrow charges and application fees.”
Defendant AT&T raises a “novel defense” to justify its refusal “to simply pay its bills,” when it argues that none of plaintiff Core Communications’ toll-free access charges is “enforceable,” said Core’s memorandum Friday (docket 2:21-cv-02771) in U.S. District Court for Eastern Pennsylvania in Philadelphia in opposition to AT&T’s June 30 motion for summary judgment (see 2307030004). Core is seeking to recover $11.4 million in unpaid access services charges from AT&T, which refuses to pay, claiming nearly 100% of the calls that CoreTel affiliates in Delaware, New Jersey, Virginia and West Virginia connected were fraudulent (see 2212280001). AT&T began withholding payment from Core related to toll-free traffic, initially remitting only partial payment, said Core’s opposition. By 2020, AT&T “began withholding substantially all payments” that Core and its affiliates claimed to be owed for their participation in the toll-free telecommunication services “call path,” it said. It’s undisputed that the “entirety” of the traffic that Core routed to AT&T was passed along in IP formats, it said. But AT&T is now suggesting that “this circumstance alone” renders all traffic routed by Core “uncompensable,” it said, “and that is just not the case.”
The motion of roughly 255 residents of Kootenai County, Idaho, to intervene in AT&T’s cell tower dispute with the county should be denied because the residents “have failed to establish two of the four factors required for intervention as a matter of right,” said AT&T’s opposition Friday (docket 2:23-cv-00124) in U.S. District Court for Idaho. The county is on record as having no objection to the residents’ motion in which they argue they can’t rely on the municipality to protect their interests (see 2307140006). But the residents “lack a significantly protectable interest relating to the property or transaction that is the subject of this action,” and they can’t establish that the county won’t “adequately represent” their interests, said AT&T. The residents also have failed to satisfy “the required elements of permissive intervention,” it said. They haven’t identified, let alone proved, a common question of law and fact between the movant’s claim or defense and the main action, it said.
The Jefferson County, West Virginia, planning commission's denial of Vertical Bridge's application to build a 100-foot monopole cell tower violates the Telecommunications Act, alleged Vertical Bridge's complaint Thursday (docket 3:23-cv-00171) in U.S. District Court for Northern West Virginia in Martinsburg. The county’s “improper and arbitrary" denial of Vertical Bridge’s application wasn't based on substantial evidence in the written record, as the TCA requires, and “amounts to an effective prohibition of enhanced cellular service,” also in direct violation of the statute, said the complaint. Vertical Bridge complied with all applicable federal, state and local requirements for communications towers, after a wireless carrier engaged Vertical Bridge to locate, construct and operate a cell tower in Jefferson County to “resolve a gap in coverage” around Shannondale and to “improve its overall network,” the complaint said. Vertical Bridge evaluated six sites and decided the Lakeside Dr. property was the “ideal location” for building the proposed tower, which complies with county code, it said. Vertical Bridge submitted an application for the tower concept to the planning commission April 26. On May 5, Vertical Bridge’s application was deemed compliant by planning staff provided an FCC license was submitted; the company then submitted the FCC license, and a staff report indicated the application was complete based on information about criteria in the subdivision regulations and zoning ordinance. At a public hearing June 13, members of the public voiced various objections to approval of the “minor site plan,” the complaint said. Despite having no discretion to deny the application because it complied with the county code, the planning commission did, in fact, deny the application. Vertical Bridge requests that the court issue an order declaring the denial of its application isn’t supported by “substantial evidence” in the written record, in violation of the Telecommunications Act, plus an order declaring Vertical Bridge’s right to approval of its application. It also seeks an order reserving jurisdiction to the court to resolve any issues between the parties regarding further permit issues.