Plaintiffs Tarpon Towers and Verizon Wireless requested expedited review under the Telecommunications Act of their complaint against the town of Saugerties, New York, and for declaratory and injunctive relief for the immediate issuance of all approvals and permits necessary for construction of a cell tower Verizon applied for in May 2019, said Thursday's amended and supplemental complaint (docket 1:22-cv-107) in U.S. District Court for Northern New York in Albany. The Thursday action involves the town’s “unlawful failure and refusal to act” on an application for a cellular tower proposed for a fire department property within the timeframe established under the Telecommunications Act. Saugerties’ refusal to act on the application violates the TCA by “failing to render a decision within a reasonable period of time” after it was filed with the town, preventing Verizon from providing service where known service gaps and network deficiencies “indisputably exist,” it alleged. The action also involves the town’s denial of plaintiffs' application to install and operate a cell phone tower on an alternative site on Industrial Drive “in an approved zoning district at a location specifically recommended” by the Saugerties Zoning Board of Appeals, it said. The Industrial Drive application was denied on “unfounded claims” that a tower there would be “more than a minimal intrusion to the community," said the document.
The 10th U.S. Circuit Court of Appeals should revisit the “material prohibition standard” under Section 253 of the Telecommunications Act “in light of the cost-based test adopted by the FCC” in order 18-133, said wireless ISP NMSurf in its opening brief Tuesday (docket 22-2131). NMSurf (formerly CNSP) is appealing the U.S. District Court for New Mexico order upholding a local telecom law requiring a revenue-based fee in Santa Fe (see 2211230073). Though the FCC adopted the order for small-cell wireless, “it has broad reasoning and application with policies that go beyond small cell,” said NMSurf. Santa Fe’s ordinance fee was “not adopted based on cost incurred” by the city but rather is “an old-style revenue producer of the sort that predates the TCA,” it said. Additionally, Santa Fe’s 2% fee “was arbitrarily adopted, without sufficient connection to use” of the public rights-of-way by service providers, it said. NMSurf asked the court to apply the FCC cost test to the 2% fee and “find preemption under Section 253.”
The “unsuccessful mediation” of the dispute between T-Mobile and three Bronx building landlords over the carrier’s access to rooftop wireless antennas (see 2212080004) sparked U.S. Magistrate Judge James Cott for Southern New York to schedule a Jan. 24 telephone conference to set a discovery schedule in the case, said his text-only order Friday (docket 1:22-cv-08369). The landlords who own the rooftop space that T-Mobile leases rebuffed the carrier's demand that they sign the New York Fire Department paperwork required for the company to access those rooftops and upgrade its wireless antenna facilities (see 2210270004).
Contractor JM Power was excavating with mechanized equipment in January 2019 in Royal Palm Beach, Florida, when it damaged Crown Castle’s underground telecom cable, in violation of Florida law, alleged Crown Castle in a Jan. 10 negligence complaint (docket 50-2023-CC000383XXXXMB) in Palm Beach County Circuit Court. JM’s conduct caused Crown Castle to incur nearly $34,000 in “actual damages,” it said. JM failed to excavate “in a careful and prudent manner based on accepted engineering and construction practices,” it said. It also failed to properly train and supervise its employees “and ensure they complied with all applicable statutes,” it said. The complaint seeks recovery of the monetary damages, plus interest. JM didn’t comment.
The 5th U.S. Circuit Court of Appeals granted Crown Castle’s motion for access to confidential documents in the Pasadena, Texas, appeal to reverse a district court’s granting of summary judgment in Crown Castle’s favor (see 2301050031), said an order signed Wednesday by U.S. Circuit Judge Edith Brown Clement. Crown Castle said it needs the documents to prepare the responding brief that’s due Jan. 23. The district court said Crown Castle was right to assert that Section 253 of the Telecommunications Act preempted Pasadena’s design manual, which the company said impossibly required the small-cell nodes to be buried underground or spaced in a limiting way. Pasadena’s opening brief in the appeal said Crown Castle lacks standing to assert a Section 253 claim because it’s not a telecommunications service provider in the meaning of the statute.
U.S. Magistrate Judge Daniel Stewart for Northern New York in Albany signed an order Wednesday (docket 1:22-cv-00107) granting the Aug. 8 unopposed motion of plaintiffs Verizon and Tarpon Towers II for leave to file their amended wireless infrastructure complaint against the town of Saugerties, New York (see 2301100029). The amended complaint is due Jan. 18, said the order. Verizon and Tarpon sued Saugerties in early February, alleging the town dragged its feet or unlawfully denied their two applications to build and install wireless facilities in the municipality, in violation of the Telecommunications Act. The court delayed acting on the motion to amend as it awaited the results of settlement talks, but those discussions haven't yielded a resolution. Verizon and Tarpon had asked the court to establish a “date certain” for the town to file its record of proceedings, suggesting Jan. 31 as that deadline. Saugerties doesn't oppose the date certain, but thinks the Jan. 31 deadline “is overly optimistic given the volume of the records,” the town’s outside counsel wrote U.S. District Judge Mae D'Agostino in a letter Wednesday, asking for 60 days instead. Stewart's order didn't impose a deadline on the town.
An arbitration proceeding pending before an international tribunal of the American Arbitration Association involves “some of the same entities” that are parties to the breach of contract complaint by Terra Towers, TBS Management and DT Holdings against American Tower International (ATI), said ATI in an amended notice of removal. It was filed Tuesday (docket 1:23-cv-20009) in U.S. District Court for Southern Florida in Miami. ATI removed to the federal court on Jan. 3 the Dec. 12 complaint in the 11th Judicial Circuit in Miami in which the plaintiffs alleged ATI “improperly withdrew” from an $800 million Latin American and Central American telecommunications tower development agreement called Project Codu (see 2301030035). The “facts and circumstances” of the dispute that's in arbitration are “inextricably intertwined” with those in the plaintiffs’ state court action, “and the tribunal’s award and findings will address Project Codu,” said ATI’s amended notice. Its previous notice made no mention of the arbitration proceeding.
The 17th Judicial Circuit Court for Broward County, Florida, granted Crown Castle’s motion for default against defendant R&Y Underground for failing to answer its Nov. 29 negligence complaint, said a clerk’s entry Tuesday (docket CACE-22-017496). Crown Castle alleged R&Y caused more than $71,000 in “actual damages” when excavating with mechanized equipment at an intersection in Miramar by failing to use “accepted engineering and construction practices” (see 2212070004).
Plaintiffs Verizon and Tarpon Towers II want the U.S. District Court for Northern New York in Albany to rule on their Aug. 8 motion to amend their wireless infrastructure complaint against the town of Saugerties, New York, they wrote U.S. Magistrate Judge Mae D'Agostino in a letter Monday (docket 1:22-cv-00107). Verizon and Tarpon sued Saugerties in early February, alleging the town dragged its feet or unlawfully denied their two applications to build and install wireless facilities in the municipality, in violation of the Telecommunications Act. The court delayed acting on the motion to amend as it awaits the results of settlement talks between the parties. But Saugerties hasn't responded to the plaintiffs’ Sept. 28 settlement offer since their Dec. 9 status conference, Verizon and Tarpon told the judge. They asked her to establish a “date certain” for the town to file its record of proceedings, suggesting Jan. 31 as that deadline. The complaint was initially filed nearly a year ago, and the statute “requires expedited review,” the companies said, pressing their case for an urgent deadline. Saugerties officials didn’t respond to queries Tuesday seeking comment.
The city of Rochester conferred with plaintiffs Verizon, Crown Castle and Extenet, and the parties agree another attempt to resolve their dispute through mediation “makes sense in advance of trial,” Rochester counsel Patrick Beath wrote U.S. Magistrate Judge Marian Payson for Western New York Friday. They agree Payson should be mediator, given her “familiarity with the issues and the parties,” said Beath’s letter (docket 6:20-cv-07129). All can be available for a joint mediation in February, he said. Each of the three cases was “separately mediated” during discovery, but none was resolved, he said. A bench trial consolidating the three cases is scheduled to begin June 1 (see 2212200065). Common to all three complaints 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 used or occupied by telecommunications service providers, in violation of Section 253 of the Telecommunications Act.