Real estate owner 1411 Division Street filed suit Tuesday to "recover" for T-Mobile’s “unlawful, forcible entry” onto its commercial property in Baltimore to service its telecom equipment, according to a trespass complaint (docket 1:22-cv-02690) in the U.S. District Court for Northern Maryland. The owner has been in the process of developing the property for affordable housing, it said. T-Mobile has a lease agreement with a third party, which itself has an easement agreement with the owner, that permits T-Mobile access to the telecom equipment on the property, it said. “But this easement agreement -- and necessarily, any lease with T-Mobile -- does not permit T-Mobile to occupy the property with trucks, workers, and a crane,” it said. “Nor does it permit T-Mobile to forcibly enter the property for the purpose of this unlawful occupation,” it said. “Yet that is exactly what T-Mobile did,” causing the owner “significant harm” by preventing it from fully developing its property, it said. The owner seeks unspecified money damages, plus a declaratory judgment that T-Mobile is not permitted to place its cranes, workers or vehicles on the property. T-Mobile didn’t comment Wednesday.
The 9th Circuit U.S. Court of Appeals scheduled a Nov. 21 dial-in telephone assessment conference in AT&T’s appeal of a district court's Aug. 22 dismissal of its lawsuit against Los Altos, California, for rejecting its application to install small-cell wireless facilities under a 2019 local law (see 2210070046), said an order Monday (docket 22-16432). Under a revised briefing schedule, AT&T’s opening brief is now due Dec. 12, and Los Altos’ answering brief is due Jan. 23. AT&T’s optional reply brief is due within 21 days from the service date of the answer brief.
Muttontown, New York, resident Russell McRory filed a motion to intervene Monday in AT&T’s Sept. 15 complaint in U.S. District Court for Eastern New York in Central Islip alleging that the town’s failure to approve AT&T’s October 2021 application to build a “stealth” cell tower at the Village Hall “obstructed AT&T’s ability” to remedy a service gap in the community, in violation of the 1996 Telecom Act (see 2210090001). McRory’s home “abuts the premises where the proposed cell tower would be located,” and residents like him “are not aligned” with the village board, which supports the cell tower, against the objections of the local Zoning Board of Appeals (ZBA), said his motion (docket 2:22-cv-05524). “This is not the typical cell tower case,” said the motion. “This is not the usual case where a wireless service provider has entered into a lease with a third-party property owner to construct a cell tower, the service provider makes an zoning application to the municipality, and the municipality and the residents rise as one to oppose the cell tower.” The Muttontown case “is more like Game of Thrones,” it said. Residents have “risen up” against the village board’s support for the cell tower, accusing it of concealing from public scrutiny, “and stonewalling the residents’ efforts to obtain information and to be heard in public hearings,” said the motion. The ZBA “denied the variances necessary to construct the cell tower and is therefore at odds” with the village board, it said. “The proposed tower would be right in the middle of a residential neighborhood,” it said. “At 165-feet high, the proposed tower would soar far above the natural tree line, which averages only 80-feet. In fact, it would be the tallest cell tower in the region, exceeding the heights of all other area towers, including those along the Long Island Railroad tracks and the Long Island Expressway.” The proposed cell tower “would have a severe and negative aesthetic impact on nearby residences and would severely and negatively impact property values of those residences,” it said. Muttontown faces an Oct. 26 deadline to answer the AT&T complaint.
U.S. Magistrate Judge James Wicks in Central Islip, New York, on Saturday granted a one-week deadline extension until Friday for Oyster Bay, New York, to complete discovery in its legal fight with Crown Castle. Most of the documents responsive to Crown Castle’s discovery requests “are not readily available and must be searched for and located” by town employees, said Oyster Bay in its unopposed motion for an extension (docket 2:21-cv-06305). Crown Castle sued the town in November, alleging the municipality and its officials obstructed its 23 applications for special permit approval to install 23 small wireless facilities within the public rights of way (ROW). Among Crown Castle’s allegations were that the town “imposed unreasonable, excessive, and prohibitive escrow charges and application fees,” and that it required a ROW use agreement with Crown Castle but refused to execute one.
A federal court upheld a local telecom law requiring a revenue-based fee in Santa Fe, New Mexico. The U.S. District Court in Albuquerque granted summary judgment to the city in a Sept. 28 order on a case involving a challenge by local internet provider CNSP (case 1:17cv355). The company challenged Santa Fe's laws regulating broadband infrastructure in the right of way (ROW). CNSP said that by requiring a revenue-based fee of 2% of all gross charges, Santa Fe's law requires too much compensation for using the ROW, violating the 1996 Telecom Act’s Section 253. Also, CNSP said Santa Fe's contract with another ISP, Cyber Mesa, violated Section 253 by giving that company an unfair competitive advantage. Santa Fe's ROW law, including the 2% fee, doesn’t “materially inhibit the provision of broadband internet service,” ruled Judge Kenneth Gonzales. The ISP said the FCC's 2018 small-cells order banned revenue-based fees, requiring them instead to be cost-based, but the judge noted that the agency’s order was about 5G wireless infrastructure, which wasn’t involved in the CNSP case. Also, the court is bound by 10th Circuit precedent, not FCC opinion, Gonzales said. “The Court, despite the norm for deference to agencies found in” the Chevron doctrine, isn’t “persuaded that an administrative ‘Declaratory Ruling’ expressing a preference on a split in caselaw [sic] controls the courts." The 10th Circuit hasn’t “adopted a view antagonistic to revenue-based fees for wireline infrastructure,” the judge said. CNSP didn’t show the fee actually prohibited its business, said Gonzales: The company added customers during the case and plans to expand. On the contested contract, Gonzales said significant disputed facts precluded summary judgment for CNSP. "Even if the Court resolved all disputed facts in CNSP's favor, Santa Fe raises sufficient dispositive legal issues related to essential elements of CNSP's claims that the Court concludes summary judgment in the City's favor is appropriate,” he said. “CNSP has raised insufficient facts to show that an improper and preemptable competitive advantage has been bestowed upon Cyber Mesa or that an absolute prohibition or exclusion currently restricts CNSP -- even if the Cyber Mesa contract is indeed still operative and all disputes are resolved in CNSP's favor."
ExteNet withdrew its wireless infrastructure appeal at the 2nd U.S. Circuit Court of Appeals. The 5G infrastructure company had challenged a district court’s July 29 ruling that granted summary judgment to Flower Hill, a village on New York’s Long Island (case 22-1764). The court on Friday certified that parties withdrew the case Thursday. The lower court agreed with Flower Hill that it could deny an application for 5G infrastructure where 4G coverage already existed. ExteNet declined to comment and Flower Hill attorneys didn’t comment.
Illinois' Cable and Video Competition Law (CVCL) doesn't give East St. Louis a right of action to seek video service provider franchise fees from streaming services, U.S. Magistrate Judge Mark Beatty of East St. Louis ruled Sept. 22, dismissing a putative class action complaint brought by the city. In the docket 3:21-CV-561 order Friday granting the streaming service defendants' motions to dismiss (see 2203290039), Beatty said CVCL explicitly says the state attorney general can institute a lawsuit for CVCL violations, but it doesn't say that local government units can do likewise. That the AG's office hasn't pursued a suit "does not somehow mean the statutory enforcement framework is an inadequate remedy," said the order. There was no oral argument, with Beatty in the order calling it "not necessary." The city didn't comment.