There appear to be “genuine disputes of material fact” between Charter’s Spectrum Pacific West and the city of Yuma, Arizona, “that would preclude granting summary judgment to either party,” said an order signed Thursday (docket 2:20-cv-01204) by Senior U.S. District Judge Roslyn Silver for Arizona in Phoenix. The impasse prompted Silver to schedule a jury trial in the dispute for May 8, said the order. She didn’t preclude Spectrum or Yuma from filing a motion for summary judgment. But if a motion is filed and it’s found to lack a “good faith basis,” she’ll consider “imposing sanctions” on the offending parties. The parties are to confer in good faith and file a status report by March 23, “identifying whether either side will seek summary judgment,” said her order. Spectrum sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law (see 2303090024). Yuma’s counterclaims assert Spectrum’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Spectrum’s predecessor company, signed with the city over use of Spectrum’s fiber capacity. Spectrum’s argument that Yuma’s counterclaim for breach of contract is moot “appears unfounded in law and fact,” said the judge. Spectrum argues that when it voluntarily dismissed its claims against the city, that resolved the dispute presented in Yuma’s counterclaim because that counterclaim is effectively for “anticipatory” breach of contract, she said. “Spectrum appears to believe it never breached the contracts and, therefore, the counterclaim fails,” said her order. “But Spectrum’s understanding of the counterclaim is incorrect,” it said. Yuma’s counterclaim “is based on allegations that a breach of contract already occurred,” it said. The breach of contract counterclaim could only be moot if Spectrum had paid all the damages and provided all other relief the city seeks because of the alleged breach of contract, it said.
The city of Yuma, Arizona, has spent nearly $204,000 to date in outside attorney’s fees defending against Charter’s Spectrum Pacific West lawsuit, said the city in a “renewed” joint status report Wednesday (docket 2:20-cv-01204) in U.S. District Court for Arizona in Phoenix. The court ordered the parties to file the renewed report after they said they couldn’t agree on the “substance and content” of their original joint status report (see 2303060038). Spectrum sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law. Yuma’s counterclaims assert Spectrum’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Spectrum’s predecessor company, signed with the city over use of Spectrum’s fiber capacity. The taxpayer dollars that Yuma spent on lawyers “more properly should have been spent on a new ambulance or police equipment” or maintaining the city’s fiber network for the next eight years, said the city in its portion of the renewed status report. The city has incurred more than $300,000 in actual damages “resulting directly from Spectrum’s improper actions,” it said. Yuma can’t and shouldn’t “place the burden of paying for such damages” on its taxpayers, it said. Spectrum was left “no choice but to initiate this litigation” after the city “refused to adopt any process for it to apply to obtain a uniform license,” countered the company in the joint status report. Yuma insisted the Arizona law “requiring it to adopt such processes and grant such licenses was unlawful,” it said. “Its contrary position now is flatly contradicted by the record evidence.” The city’s assertion that it was somehow forced into this litigation is “mistaken,” said Spectrum. The lawsuit “resulted directly from its own refusal to abide Arizona law,” it said. Yuma’s current litigation position “rings particularly hollow” now that the city seeks to keep the litigation going through a motion for summary judgment “after the core issue in dispute has been resolved,” it said. “That effort is misguided, and its strategy to do so through dispositive motions practice is procedurally improper, based on unfair and improper discovery practice,” it said.
The 101st Judicial District Court in Dallas wants to schedule a bench trial in the two-week docket opening Sept. 19 on Extenet’s Dec. 16 complaint that blamed Horizon Underground employees for causing $34,454 in damages to an underground cable, said the court’s notice Wednesday (docket DC-22-17265). Horizon said the contractor Extenet hired in March 2021, U.S. Infrastructure, was the real culprit because it improperly located and marked Extenet’s underground utility cable and facilities under a 48-hour “dig notice” (see 2302200003).
Appellee Crown Castle seeks to supplement the record in the 5th U.S. Circuit Appeals Court appeal of the city of Pasadena, Texas, with four documents pertinent to the district court’s granting of Pasadena’s motion for a stay in the case pending the appeal’s outcome, said its motion Wednesday (docket 22-20454). Pasadena didn’t oppose the motion, it said. Though Crown Castle’s opposition to the city’s stay motion, and the district court’s relevant rulings, didn’t make it into the initial appellate record, “these documents are material” to the city’s representation in its reply brief that Crown Castle failed to oppose the stay motion, the company said. In light of the city’s reply brief, filed Monday (see 2303070044), it’s “appropriate to include these items in the record” to give the 5th Circuit “a full picture of the proceedings,” Crown Castle said. Pasadena wants the 5th Circuit to reverse the lower court’s granting of summary judgment in Crown Castle’s favor on grounds that a "plain reading" of the city’s design manual shows the spacing requirement for small node networks is "clearly more burdensome" than the requirements applicable to other users of the public rights of way (see 2212010001).
Charter’s Spectrum Pacific West subsidiary and the city of Yuma, Arizona, couldn’t agree on the “substance and content” of their joint status report, said their filing Friday (docket 2:20-cv-01204) in U.S. District Court for Arizona in Phoenix. Charter sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law. Yuma’s counterclaims assert Charter’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Charter's predecessor company, signed with the city over use of Charter’s fiber capacity. Yuma intends to file a motion for summary judgment on its counterclaim against Charter for breach of contract, “but before filing the summary judgment motion, would also agree to mediation of its claimed damages,” said their joint filing. Charter argues the city “failed to provide an overview of the basis for the proposed motion,” it said. Yuma’s proposed dispositive motion “would be fruitless,” because the city “already agreed with Charter to file a joint stipulation of dismissal of Charter’s claims,” rendering Yuma’s counterclaims moot, it said. “Charter objects to any dispositive motion briefing.” In light of the joint stipulation for dismissal, Charter “objects to all mediation,” it said. Yuma believes the case would be suitable for a settlement conference with a magistrate judge, said the city.
Property owner Academy Medical’s lease agreement with T-Mobile uses “plain and unambiguous language” to say what a lessee may do and what a sublessee may do, said Academy’s latest volley Thursday (docket 1:22-cv-00910) in U.S. District Court for New Mexico in its bitter cell tower fight with T-Mobile and Crown Castle (see 2302160034). T-Mobile asserts it was within its rights to sublet rooftop tower space to Crown Castle and in turn to Dish Network, but Academy maintains it was unlawful for T-Mobile to do so without the property owner’s written consent. No part of the lease permits Crown Castle to demand that Academy “consent to a permit so that an entity unrelated” to either T-Mobile or Academy, namely Dish, can perform improvements on the leased site, said Academy’s Thursday filing. Crown Castle treats Dish as though it’s a sublessee of T-Mobile, but Dish is Crown Castle’s sublessee, it said. Academy said Crown Castle “has no legal or contractual right” to ask Academy “to do an affirmative act for any party.” T-Mobile has no “contractual relationship” with Dish for the leased site, nor does Academy have one with Crown Castle or Dish.
Whatever injuries plaintiffs Verizon and Tarpon Towers may have sustained in their cell tower dispute with the town of Saugerties, New York, were caused by their own negligence or “culpable conduct,” or by someone over whom Saugerties "had no control," said the town’s answer Thursday (docket 1:22-cv-107) in U.S. District Court for Northern New York in Albany. The Verizon-Tarpon amended and supplemental complaint Jan. 19 requested expedited review under the Telecommunications Act of their challenge against Saugerties, and for declaratory and injunctive relief for the immediate issuance of all approvals and permits necessary for construction of a cell tower that Verizon applied for in May 2019 (see 2301190046). Saugerties officers at all times “were government officials performing discretionary functions in their capacity,” said the town. “Their conduct did not violate clearly established statutory or constitutional rights of which a reasonable man would or should have known, and that by reason thereof they have qualified immunity from liability in this action.”
Crown Castle “joins and adopts the legal reasoning” of motions by co-plaintiffs Extenet and Verizon to bar introduction at trial of Rochester’s “cost spreadsheet” and to preclude the city’s telecom director, Louie Tobias, who created the spreadsheet, “from offering expert opinion testimony,” said its memorandum of law Monday (docket 6:20-cv-06866) in U.S. District Court for Western New York. Common to the three complaints brought by Crown Castle, Extenet (6:20-cv-07129) and Verizon (6:19-cv-06583) are the allegations that Rochester’s wireless deployment fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way (ROW) used or occupied by telecom service providers, in violation of Section 253 of the Telecommunications Act (see 2302270007). A single bench trial on the three consolidated cases is scheduled to open June 1. The spreadsheet is “inadmissible” at trial because it doesn’t qualify for “the public records exception to hearsay,” and it was prepared “in anticipation of litigation,” said Crown Castle. Several other factors make the spreadsheet “inherently unreliable and untrustworthy,” it said. Any opinion testimony the city plans to induce from Tobias about the reasonableness of Rochester’s costs or fees also is inadmissible because he “has not been designated as, nor is he qualified to testify as, an expert witness,” it said. The court has determined the city bears the burden of proof at trial “to demonstrate that its fees are a reasonable approximation of its costs” to manage the public ROW, said Crown Castle. The spreadsheet and Tobias’ testimony figure prominently in Rochester’s efforts to meet its burden, the memorandum said.
The Wireless Contractors Association (WCA) seeks a summons requiring defendant subcontractor New Age Telecom to show cause within 20 days why its four claims of lien against the plaintiff totaling more than $84,000 in unpaid balances shouldn’t be vacated, said WCA's Feb. 13 complaint (docket 16-2023-CA-000911-XXXX-MA) in the 4th Judicial Circuit Court in Duval County, Florida. WCA signed a Sept. 1 contract for New Age to furnish “certain construction services” on WCA’s projects on an “as-needed basis,” it said. In each of four WCA projects, which appear from attached purchase orders to be for Dish Network installations in and around Jacksonville, New Age “failed to satisfy all contractual conditions precedent in order to be entitled to payment,” it said. New Age files the claims of lien “notwithstanding its material breach of the parties’ agreement and failure to complete its scope of work,” it said. New Age “abandoned” each of the four projects, and WCA was forced to hire another subcontractor to complete New Age’s “scope of work,” it said. The claims of lien are “invalid and unenforceable,” it said. If New Age doesn't respond to the show cause summons, WCA seeks an order vacating and canceling the liens of record and awarding WCA costs and attorney’s fees, plus any relief the court “deems proper,” it said. WCA's website says it specializes in tower services, small-cell distribution, 5G upgrades and site "acquisition and integration." New Age's website says it's a specialist in "structured cabling," among other communications and security services.
T-Mobile agreed with three Bronx landlords to the voluntary dismissal with prejudice of their rooftop antenna dispute, said their stipulation Friday (docket 1:22-cv-08369) in U.S. District Court for Southern New York. Each party will bear its own attorneys’ fees, costs and expenses, it said. T-Mobile said it tried unsuccessfully for months to get the buildings from which it leases rooftop space to sign the New York Fire Department paperwork required for the carrier to access those rooftops and upgrade its wireless antenna facilities (see 2210270004). The landlords said they rebuffed the requests for fear T-Mobile was trying to use the FDNY paperwork request as a ploy to grab more rooftop space.