A court report and recommendation (R&R) that Crown Castle should be granted summary judgment against Oyster Bay, New York, on its claims that the town unlawfully blocked its applications to install 23 small wireless facilities in public rights of way (see 2401220028) was “well-reasoned,” said Crown Castle’s response Friday (docket 2:21-cv-06305) in U.S. District Court for Eastern New York in Central Islip. Each of U.S. Magistrate Judge Wicks’ “overarching” determinations, “has clear support in the undisputed evidentiary record in this case,” it said. Each, on its own, warrants an award of summary judgment in Crown Castle’s favor, it said. The town’s written denial of the company’s applications isn’t supported by substantial evidence on record, in violation of Section 332 of the Telecommunications Act, it said. Its denial effectively prohibited provision of wireless services, also in violation of Section 332, Crown Castle said. Oyster Bay’s denial also materially inhibits the ability of telecommunications providers like Crown Castle to compete in a fair and balanced legal and regulatory environment, and therefore has the effect of prohibiting the provisions of telecommunications services, in violation of the TCA’s Section 253, the response said. The town’s objections to Wicks’ R&R “should be rejected as without merit,” said Crown Castle. “They completely ignore the undisputed material facts of this case, are based upon an incorrect standard of law,” and are contrary to well-established 2nd Circuit precedent, it said. The objections “are nothing more than a smokescreen” to hide the fact that the undisputed facts and unambiguous case law set forth in the R&R “conclusively demonstrate” that Wicks’ conclusions “are well-grounded and have clear support in the record and in the law,” it said. Crown Castle asks that the court adopt the R&R in its entirety and grant summary judgment in the company's favor on all counts, it said.
U.S. District Judge Mark Mastroianni for Massachusetts in Springfield granted the Feb. 5 joint motion of Verizon and Southwick, Massachusetts, to postpone the April 22 bench trial on count II of Verizon’s complaint that Southwick’s denial of AT&T’s cell tower application constituted an effective prohibition of wireless services under the Telecommunications Act, said the judge’s electronic order Thursday (docket 3:21-cv-10414). The judge previously granted summary judgment in Southwick’s favor on count I of Verizon’s complaint that the town’s denial wasn’t supported by substantial evidence in the written record (see 2402060050). In light of the parties' "representations" that they have entered into discussions about identifying and considering potential alternative locations for AT&T’s cell tower that weren’t available before Southwick denied the company’s application, the court “will continue the trial and temporarily stay this matter pending settlement negotiations,” said the judge’s order. The parties will file a joint status report by June 14, updating the court on the status of the parties' negotiations “and the likelihood that a trial will be necessary,” it said. The parties may request entry of a settlement order of dismissal “that provides a period of time during which either party may reopen the action if their settlement negotiations fail,” it said.
AT&T’s Dec. 18 complaint challenging the “unlawful denial” by Jennings, Louisiana, of AT&T’s application to build an 80-foot wireless telecommunications facility within the city’s jurisdiction (see 2312190003) fails to state a claim on which relief may be granted, said the city’s answer Monday (docket 2:23-cv-01769) in U.S. District Court for Western Louisiana in Lake Charles. All the city’s actions or inactions with respect to AT&T “were carried out in the good faith performance of official duties by elected or appointed officers and employees” of Jennings, and under “a good faith and reasonable belief that such actions were lawful and constitutional,” it said. The city is therefore “immune from the purported claims and causes of actions” set forth in AT&T’s complaint, it said. Jennings affirmatively pleads the statute of limitations to the extent that AT&T’s complaint wasn’t timely filed under the Telecommunications Act, it said. The city also denies violating any provisions of the TCA’s Section 332, it said. That’s because the statute “defers to state and local governments concerning placement, construction, and modification of personal wireless service facilities,” and because all the city’s actions “were consistent with the provisions of that statute,” Jennings said.
Contrary to the AT&T’s Jan. 18 objections to a magistrate judge’s Dec. 19 report recommending dismissal of AT&T’s cell tower complaint against Muttontown, New York, and its various boards (see 2401220003), the report “accurately states the applicable law and applies it to the undisputed facts at bar,” said the village’s reply Friday (docket 2:22-cv-05524) in U.S. District Court for Eastern New York in Central Islip. Based on the well-established doctrines of justiciable controversy and ripeness, the report correctly recommends dismissal of AT&T’s action under Rule 12(b)(1) of the Federal Rules of Civil Procedure, said the Muttontown’s reply. The report also correctly determined that AT&T’s complaint failed to properly plead plausible “shot clock” violation, prohibition and substantial evidence claims against the village in its July 2022 denial of AT&T’s variance application, it said. Contrary to the company's “repeated obfuscations,” it can’t deny that, under its consent, the shot clock expired in August 2022, said the reply. The village’s denial decision was adopted before the expiration of the shot clock, it said. The complaint and the documentary evidence annexed to it “irrefutably demonstrate” that the shot clock wasn’t violated, it said. As the magistrate judge’s report correctly noted, AT&T’s complaint “contains no allegation” of the filing of an application with the village itself, said the reply. The 2nd U.S. Circuit Court of Appeals has made clear that a municipal board “is without authority to approve a project where the applicable municipal ordinance conditions such approval on the approval of another board,” it said.
Oyster Bay Cove, New York, its zoning board of appeals (ZBA) and planning board are opposing AT&T’s Feb. 15 request for the court to schedule a pre-motion conference to set a briefing schedule for AT&T’s anticipated motion for summary judgment (see 2402160028). AT&T’s December 2022 complaint alleges the village and its boards subjected AT&T to an “unreasonably protracted” application process to approve an 85-foot monopine cell tower, ultimately failing to act on the application before the last-extended expiration of the Telecommunication Act’s shot clock (see 2212230054). AT&T contends it needs the tower to remedy a service gap that's “significant in terms of size, number of persons affected, and degree of service deficiencies.” But while AT&T submits there’s “undisputed expert testimony” that there’s a gap in coverage, despite repeated requests by ZBA members for evidence, neither AT&T nor its experts were able to “demonstrate a significant gap,” counsel for the village wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip in a letter Thursday (docket 2:22-cv-07807). The ZBA found that AT&T failed to present “credible evidence of the true signal strength” in the village, it said. AT&T contends that the village’s denial of the cell tower application was based on “unsupportable lay opinions” that before and after service maps looked the same, it said. But the ZBA members specifically asked AT&T’s expert to opine on what they were reviewing in the service maps, and that expert “was unable to articulate a response supported by credible evidence,” said the letter. AT&T argued in its Feb. 15 request for a pre-motion conference that the proposed monopine tower is “minimally intrusive” and that the ZBA’s “preferred option” of a distributed antenna system (DAS) wasn’t “feasible,” the letter said. But AT&T’s expert subsequently told the ZBA that AT&T hadn’t conducted a design study to determine the feasibility of a DAS, it said. AT&T “now takes the opposite view” of its expert to support its argument that the ZBA’s denial of the cell tower violated Section 332 of the Telecommunications Act, it said. Oyster Bay Cove acknowledges the need for the court to determine whether it violated the “relevant terms” of the TCA, said the letter. But it submits that a pre-motion conference isn’t required and that the parties should meet and confer on a briefing schedule to be approved by the court, it said.
A U.S. magistrate judge, in granting summary judgment for Lane County, Oregon, wrongly found that AT&T was obligated to appeal the county’s denial of its cell tower application to the Oregon Land Use Board of Appeal (LUBA), said AT&T’s mediation questionnaire Wednesday (docket 24-855) in its 9th U.S. Circuit Appeals Court appeal to get the summary judgment order overturned (see 2402190001). The judge thus ruled that the carrier had failed to exhaust its administrative remedies and granted summary judgment for Lane County “without having to reach the merits of either party’s summary judgment arguments” about the county’s decision in denying the cell tower, said the questionnaire. AT&T will argue on appeal that the judge’s decision “misunderstands LUBA’s relationship to local government bodies in Oregon” and ignores the “plain language” of the Telecommunications Act, it said. The decision also ignores the law regarding what constitutes a final action under the TCA “for purposes of an appellant’s right to proceed to federal court, based on the denial of a wireless siting permit application,” it said.
Oyster Bay, New York, objects to a magistrate judge’s report and recommendation (R&R) that Crown Castle be granted summary judgment in its applications to install 23 small cells in the public rights of way (see 2401220028), said the town’s objection Friday (docket 6:22-cv-01635) in U.S. District Court for Eastern New York in Central Islip. Oyster Bay asks that the court reject and modify portions of the R&R and grant it summary judgment on those portions, said its objection. The R&R failed to acknowledge the town zoning board’s “permissible discretion,” it said. In light of the board’s discretion in zoning matters, the denial of Crown Castle’s application for 23 small cells wasn’t a prohibition of personal wireless services, in violation of the Telecommunications Act, as the R&R concluded, said the town’s objection. The 23 small cells were to be installed in various locations encompassing a five-square-mile portion of Oyster Bay, it said. If the issue pertains to only a five-square-mile area in a municipality that encompasses 169.5 square miles, it’s unclear how the R&R could determine that Oyster Bay prohibited personal wireless services anyplace outside that five-square mile area included in the Crown Castle application, it said. Oyster Bay submits that this “is a factual question that defeats summary judgment,” it said.
AT&T is appealing a magistrate judge’s Oct. 25 decision granting summary judgment for Lane County, Oregon, and dismissing AT&T’s complaint to reverse the county’s denial of its application to build a 150-foot-tall cell tower (see 2310260038), said its notice of appeal Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene. U.S. Magistrate Judge Mustafa Kasubhai denied AT&T’s motion for reconsideration Jan. 25 (see 2401260009). In granting summary judgment for the county, the judge held that AT&T failed to exhaust its remedies under Oregon’s administrative land use process. AT&T’s motion for reconsideration “raises no new arguments and fails to demonstrate any mistake” in the court’s reasoning or other reason that justifies relief under Rule 60(b)(1) or (6), said the Kasubhai’s denial order. The 9th U.S. Circuit Appeal Court docketed AT&T’s appeal as case number 24-855. AT&T's mediation questionnaire in the appeal is due Wednesday, and May 10 is AT&T's deadline for its opening brief, said the 9th Circuit's time schedule order Friday. The county's answering brief is due June 10, said the order.
The opening brief of Milwaukee’s Deer District is due March 27 in its appeal to reverse a district court’s Jan. 29 decision ordering the city to issue Verizon’s requested permits to install small cells and utility polls in the pedestrian mall outside the Fiserv Forum in time for July’s Republican National Convention (see 2402120027), said a 7th U.S. Circuit Appeals Court briefing order Friday (docket 24-1212). Verizon’s answering brief is due April 26, said the order. The Deer District’s optional reply brief is due May 17, 59 days before the convention’s opening day. The Deer District was an intervenor-defendant in Verizon’s small-cells dispute with Milwaukee in the district court. Both Milwaukee and the Deer District contend that the city has no authority to approve the installation of small cells and poles on land adjacent to the Fiserv Forum that it doesn’t control. Milwaukee’s long-term lease with the state-authorized Wisconsin Center District (WCD), owner of the Fiserv Forum, “is the functional equivalent of vacated right-of-way with a reversionary interest,” said the city. The lease created a private property right in favor of WCD, which subleases that right to the Deer District, an entity controlled by the NBA’s Milwaukee Bucks, whose home games are at the Fiserv Forum.
AT&T seeks the scheduling of a pre-motion conference for its anticipated motion for summary judgment against Oyster Bay Cove, New York, counsel Andrew Joseph of Faegre Drinker wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip Thursday (docket 2:22-cv-07807). AT&T’s December 2022 complaint alleges the village and its planning and zoning appeals boards subjected the carrier to an “unreasonably protracted” application process to approve an 85-foot cell tower, ultimately failing to act on the application before the last-extended expiration of the Telecommunication Act’s shot clock (see 2212230054). AT&T contends it needs the tower to remedy a service gap that's “significant in terms of size, number of persons affected, and degree of service deficiencies.” The company can’t provide “reliable” service in the area that the proposed tower would serve, Joseph told the judge. “This affects not only the public at large, but public safety agencies unable to access the FirstNet first responder broadband system operated by AT&T,” he said. The company’s motion for summary judgment will show that denial of the application resulted in a prohibition of services, in violation of the TCA, he said. There’s undisputed expert testimony that AT&T can’t provide reliable in-vehicle service for a mile-long stretch in the affected area, he said. There’s also undisputed evidence that the proposed tower is the least intrusive means to remedy the service gap, “as it will be located within a grove of trees of similar height to the monopine,” he said. AT&T will also show that the denial of the application violated the TCA’s Section 332, as the denial wasn't not supported by substantial evidence under New York State law, he said. The denial decision “is facially invalid as it applied the federal prohibition of services test rather than New York’s public utility standard,” he said. The parties have completed all fact and expert discovery, and the matter is ready for summary judgment briefing, Joseph told the judge.