Contrary to the assertions of the city of Pasadena, Texas, in its May 31 Rule 28(j) letter to the 5th U.S. Circuit Appeals Court on the implications of the Supreme Court’s recent grant of cert in Loper Bright Enterprises et al v. Raimondo et al (see 2305010038), Chevron deference “is not at issue in this case because the district court did not ground its decision on Chevron,” said Crown Castle’s reply letter to the 5th Circuit Friday (docket 22-20454). Pasadena seeks the reversal of the district court’s Aug. 2 decision granting Crown Castle summary judgment (see 2212090044). The lower court agreed with Crown Castle that the city violated Section 253 of the Telecommunications Act by impossibly requiring small-cell nodes to be buried underground and spaced in a limiting way. It also agreed the TCA preempts the city's authority to enforce its design manual containing those requirements. Based on the Hobbs Act, the district court said it lacked authority to “second-guess” the FCC’s small cell order “in this particular proceeding,” Crown Castle told the 5th Circuit. Under the Hobbs Act, FCC orders “may only be challenged via a petition for review to the appropriate court of appeals,” it said. “In a proceeding where an FCC order is directly on review, the Chevron analysis could be implicated,” it said. “But as the district court noted, this is not such a proceeding,” it said. Pasadena doesn’t challenge that reasoning, and indeed concedes it can’t use Loper Bright as a “collateral proceeding to attack the FCC’s order,” said Crown Castle. The FCC’s small cell order was appealed under the Hobbs Act “and was affirmed in relevant part” in the 9th Circuit’s 2020 decision in City of Portland v. United States, it said. Several Texas cities participated in that case, but Pasadena chose not to, it said. Pasadena can’t “collaterally attack the order in this subsequent proceeding,” it said. Loper Bright “is thus a red herring” since the district court’s decision in this case doesn’t “implicate” Chevron, it said.
Many portions of the telephone facilities and conduit under Verizon’s control along a funicular in Cambria County, Pennsylvania, “remain in disrepair,” alleged the county in an October 10 complaint in state court that Verizon removed Tuesday to U.S. District Court for Western Pennsylvania in Pittsburgh (docket 3:23-cv-00108). The funicular, called the Inclined Plane, travels along the "steep slope" of Yoder Hill, connecting the city of Johnstown to the borough of Westmont, it said. Verizon failed to maintain its communications facilities by allowing for the subpar conditions “to manifest and remain,” it said. Until those conditions are repaired, Verizon will remain in breach of its lease agreement with the county, it said. The county will continue to suffer lost revenue for any extended period of time the funicular is shut down, it said. Under federal guidelines, “where federal funding is used in the procurement of communications facilities, land used for such facilities must be compensated for at fair market value,” it said. Despite the county’s attempts to renegotiate the right of way agreement Verizon inherited from GTE “to provide for rent from Verizon at fair market value to comply with such guidelines,” Verizon hasn’t actively participated in such negotiations, “and continues to pay no rent for its use of the right of way,” it said.
The 9th U.S. Circuit Court of Appeals scheduled a dial-in telephone mediation conference in Verizon’s dispute with the city of Carmel-by-the-Sea, California, for June 12 at 2: 30 p.m. PDT, said its order Thursday (docket 22-16153). Verizon seeks reversal of the district court’s grant of summary judgment in the city’s favor on grounds that the municipality unlawfully denied its application for a conditional use permit to install a wireless facility to remedy a worsening coverage gap. Verizon asserts the district court improperly said the Telecommunications Act imposes no obligation on the city to issue a written notification of its denial.
U.S. District Judge Stephen Bough for Western Missouri denied the two separate motions of the city of St. Joseph to dismiss AT&T’s cell tower complaint for lack of jurisdiction and for failure to state a claim, said his signed order Tuesday (docket 5:21-cv-06114). The court said “it has jurisdiction over this case” and AT&T’s claims “are adequately stated.” AT&T alleges the city’s denial of an application to build a 175-foot cell tower to promote continuous wireless coverage in the municipality wasn’t supported by substantial evidence contained in a written record, and effectively prohibits the provision of personal wireless services in the vicinity of the proposed tower.
SpeedConnect, provider of wireless internet services to small towns and rural communities in Arizona, Idaho, Illinois, Iowa, Michigan, Montana and South Dakota, owes American Tower and 13 of its subsidiaries more than $2.89 million in unpaid rent and license fees under 60 license agreements that enabled SpeedConnect to install and operate telecommunications equipment on multiple cell towers owned and operated by American Tower, alleged a breach of contract complaint Thursday (docket 1:23-cv-01336) in U.S. District Court for Colorado in Denver. SpeedConnect “retained all of the benefits conferred” by the license agreements without compensating American Tower “for the value of those benefits,” it said. The suit seeks the recovery of the unpaid fees, plus 18% interest per annum and attorneys’ costs.
A Verizon employee pierced a water line at a home in Middletown, Delaware, while installing service at a customer’s home, alleges a May 17 negligence complaint (docket N23C-05-166) in Delaware Superior Court in New Castle. The June 2021 installation was performed in a “negligent and careless manner,” said the complaint brought by insurer United Services Automobile Association and homeowner Myan Colatat. The lawsuit alleges Verizon failed to properly train and vet its employees for installation work, track their work “to know who was present and performing the work” and perform the installation without causing damage. Plaintiffs seek damages of $19,184 that were paid by the insurer.
Maryland property owner Olcan III’s revised claims in a dispute over a rooftop cell tower against American Tower continue to lack important details on the breach of contract claims, American Tower said in a Wednesday filing in response to an amended complaint. "Reading the allegations in a light most favorable to Plaintiff, the Second Amended Complaint alleges that Global Tower’s use of the easement has damaged Plaintiff’s Property, as previously alleged in the Amended Complaint. Such skeletal and conclusory allegations are insufficient to state a claim for breach of contract," said American Tower. Because the complaint is still lacking, U.S. District Judge Richard Bennett for Maryland in Baltimore should dismiss the complaint with prejudice, it said. Bennett previously dismissed the breach of contract claim but said Olcan could update the complaint (see 2304250026). Olcan’s first amended complaint alleged Global Tower’s careless use of an easement to access its cell tower on the rooftop of a building in Baltimore that Olcan owns caused Olcan to incur repair costs and to lose rent and profits (see 2211140050).
The parties in a Columbus, Ohio, cellsite dispute are close to reaching a settlement, said an order (docket 2:23-cv-00764) Tuesday from U.S. District Judge James Graham for Southern Ohio in Columbus staying all deadlines in the case. The stay includes defendant Thomas Branham’s deadline to respond to plaintiffs STC Two and Global Signal’s pending motion to dismiss (see 2305180032). Branham, who owns the property where STC Two has a cell tower, installed a padlock at the entrance of the tower site, in breach of his lease to STC Two, and refused to remove it. Branham continued to obstruct the Global Signal company’s access to the cellsite “in blatant violation” of the lease, which entitles its employees to access “24 hours per day, 7 days per week,” the complaint said. Branham said STC Two's tower, enclosed by metal fencing, wasn’t placed within the boundaries of the easement Branham granted, so STC Two employees and customers had to cut across Branham’s land to gain access.
U.S. District Judge Joanna Seybert for Eastern New York in Central Islip should “disregard” AT&T’s May 12 supplemental authority letter asserting a decision in its case in Western District of Missouri supports AT&T’s rationale for denying the motion of the village of Muttontown, New York, to dismiss AT&T’s cell tower complaint (see 2305150037), the village wrote the judge in a letter Monday (docket 2:22-cv-05524). The ruling in Western Missouri isn’t “pertinent to the subject case” because the decision is from a district court located in a different circuit, and is predicated upon 8th Circuit precedent, not the “controlling” 2nd Circuit precedent, said Muttontown. The subject matter in AT&T’s complaint against Muttontown also is fully briefed and AT&T failed to seek approval to file the letter under Seybert’s individual rules and practices, said the village. The facts of AT&T’s case in Western Missouri also “are clearly distinguishable from those at bar, which are not in dispute and would be applied to the case law standards” set by the U.S. Supreme Court and the 2nd Circuit, it said. AT&T alleges in both lawsuits the municipalities’ denials of AT&T applications to build new cell towers failed to comply with the statute’s requirements that the denials be supported by substantial evidence in a written record. AT&T also alleges in both complaints the denials are an unlawful prohibition of the statute’s provisions for personal wireless services.
Verizon removed to U.S. District Court for Connecticut in New Haven a breach of contract complaint filed April 18 in Connecticut Superior Court by Cellular Solutions, a real estate firm that provides services to landlords that have rooftop leases with wireless telecommunications carriers, including Verizon. The Friday 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. Verizon’s lease obligated the carrier to reimburse Maxwell for the unpaid taxes within 15 days of being invoiced, yet Verizon has refused to pay since 2020, said the complaint. Cellular Solutions “has full assignment from Maxwell Realty” of all claims arising from the Verizon lease, including its refusal “to pay its tax reimbursement obligations,” it said. Verizon didn’t comment Monday.