The seven Belmar, New Jersey, residents who seek to intervene in Verizon’s complaint to force Monmouth County’s approval of its application to install nine small cells in the public rights of way (see 2309280027) have been sidelined by the other parties in the case, their attorney, Anthony D’Artiglio of Ansell Grimm, wrote U.S. Magistrate Judge Brendan Day in a letter Wednesday (docket 3:23-cv-18091). When the parties last appeared before the judge Dec. 11, he suggested that the parties include provisions in their discovery plan that would account for the intervenors’ participation should their motion to intervene be granted, said the letter. But the parties filed their proposed joint discovery plan Feb. 7 with no input or participation from the residents, it said. The discovery plan makes no provision to provide the intervenors with any exchanged discovery if the motion is granted, nor does it provide any framework for the intervenors “to timely pursue discovery,” said the letter. In light of the parties’ decision to exclude the intervenors from the discovery plan, they “reserve the right to propound their own demands” after the motion is granted, it said. Notwithstanding that the parties excluded the intervenors from preparation of the discovery plan, the intervenors, with the court’s permission, intend to participate in the upcoming Feb. 21 status conference, said the letter. The intervenors plan to address their participation in discovery in the event the motion is granted “to ensure there is not any unreasonable delay and their rights are protected,” it said.
U.S. District Judge Rebecca Pallmeyer for Northern Illinois in Chicago granted summary judgment for Geneva, Illinois, over Verizon, finding that substantial evidence supported the city’s denial of Verizon’s applications to build a cell tower on a Geneva parcel of land called the Oscar Swan, said her signed memorandum opinion and order Wednesday (docket 1:22-cv-04151). There remain “material factual disputes” concerning whether the city’s denials materially inhibited Verizon from providing telecommunications services, in violation of the Telecommunications Act, as Verizon alleged. She thus denied both parties’ motions for summary judgment on the material inhibition claims.
A bench trial is scheduled to begin April 22 at 9 a.m. on Count II of Verizon’s complaint that the Southwick, Massachusetts, denial of its cell tower application constituted an effective prohibition of wireless services under the Telecommunications Act, said a trial procedural order (docket 3:21-cv-10414). A joint pretrial memorandum is due April 2 that will include the probable length of the trial, a concise summary of evidence that will be offered by each party and a statement identifying any evidentiary issues that, if raised during the trial, would likely delay the trial by 15 minutes or longer, said the order, signed Tuesday by U.S. District Judge Mark Mastroianni for Massachusetts in Springfield. A pretrial conference is set for April 5, it said. The final exhibit and witness lists from each party are due April 15, it said. The judge granted summary judgment Feb. 5 in Southwick’s favor on Count I of Verizon’s March 2021 complaint that the town’s denial of Verizon’s cell tower application wasn’t supported by substantial evidence in the written record (see 2402060050).
U.S. District Judge Jon Phipps McCalla for Western Tennessee in Memphis set a Rule 16(b) telephone scheduling conference for March 4 at 9:30 a.m. CST in the case brought by landowner James Gragg against Crown Castle, said a clerk’s hearing notice Tuesday (docket 2:24-cv-02087). Gragg leased four acres of his farmland in Rosemark, Tennessee, to Crown Castle to build a cell tower, but he alleges that with the lease’s April 2022 expiration, Crown Castle “now refuses to surrender the premises and remove its structures” (see 2402090061).
U.S. Magistrate Judge Douglas Arpert for New Jersey in Trenton wants all counsel for Verizon and Lavallette, New Jersey, to confer on a joint discovery plan, and to deliver him that plan at least seven days before the previously set Feb. 26 initial scheduling conference, said his signed order Sunday (docket 3:23-cv-23072). The discovery plan should include a description of all discovery conducted by the parties to date and a summary of all discovery problems encountered, including the efforts made to remedy those problems, said the order. Arpert also wants the parties’ estimate of the time needed to complete discovery, plus a statement regarding whether expert testimony will be necessary, it said. Verizon sued Lavallette and its borough council Dec. 13 to challenge their “unreasonable and unsupported denial” of Verizon’s application for permit approval for the installation of five small cells within the public right of way (see 2312140038). It alleges the small cells are needed to remedy a significant coverage gap, and that the borough's denial materially inhibited the provision of personal wireless and telecommunications services, in violation of Section 704 of the Communications Act. Lavallette and its council contend that Verizon’s claims are barred because the defendants “are in compliance with all constitutional, statutory, and regulatory requirements and obligations” (see 2402120020). They further contend that Verizon has failed to demonstrate that the denial of its application will materially inhibit telecommunications services and personal wireless services.
Milwaukee’s Deer District, an intervenor-defendant in Verizon’s small-cells dispute with the city, is appealing to the 7th U.S. District Court of Appeals a district judge’s Jan. 29 decision and order requiring the city to issue Verizon its requested permits, said the district’s notice of appeal Friday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in Milwaukee. Verizon is seeking the permits to enable it to install the small cells and custom-designed poles it needs to remedy coverage gaps in time for July’s Republican National Convention at the Fiserv Forum (see 2401300044). U.S. District Judge Brett Ludwig for Eastern Wisconsin in Milwaukee found that the city’s professed reasons for denying Verizon’s permit applications “were not supported by substantial evidence and were, in fact, a mere pretense.” He said the city’s actual reason for denying the permits was to assist its sublessee, the Deer District, a private entity that prefers that Verizon use an alternative fee-based distributed antenna system it’s developing to remedy wireless coverage gaps in the pedestrian mall outside the Fiserv Forum. The 7th Circuit docketed the appeal Monday as case 24-1212. Milwaukee isn't a party to the appeal.
Lavallette, New Jersey, and members of its borough council reserve the right to move for dismissal of Verizon’s Dec. 13 Communications Act complaint at or before the time of trial, and are demanding a jury trial, said their answer Friday (docket 3:23-cv-23072) in U.S. District Court for New Jersey in Trenton. Verizon sued Lavallette and its council members to challenge their "unreasonable and unsupported denial" of the carrier’s application for permit approval to install five small cells in the borough's public right of way (see 2312140038). Verizon alleges Lavallette denied the application without substantial evidence contained in the written record. It further alleges that the borough’s "unreasonable and prohibitive" application and code requirements materially inhibit or limit Verizon's ability to provide personal wireless and telecommunications services to the public. But Lavallette and its council contend the company’s claims are barred because the defendants “are in compliance with all constitutional, statutory, and regulatory requirements and obligations,” said their answer. They also contend that their denial of Verizon’s application was “timely,” as was their notice of that denial, said their answer. Verizon has failed to demonstrate that the denial of its application, “as to each and every of the proposed locations, will materially inhibit telecommunications services and personal wireless services,” it said. The denial was reasonable “and supported by credible evidence,” it said. The individual defendants “engaged in good faith performance of their duties at all times relevant” to the subject of the complaint and therefore “are entitled to immunity from liability” under state and federal laws, it said.
James Gragg leased four acres of his farmland in Rosemark, Tennessee, to Crown Castle to build a cell tower, but with the lease’s April 2022 expiration, the company “now refuses to surrender the premises and remove its structures,” alleged Gragg’s Jan. 5 complaint in Tennessee Circuit Court in Shelby County, removed Thursday (docket 2:24-cv-02087) to U.S. District Court for Western Tennessee in Memphis. Gragg seeks possession of his property, the restoration of his land and compensatory damages, said his complaint. Crown Castle “has ignored the notice to vacate” and has continued to use and profit from the premises without a “valid lease,” thereby depriving Gragg of his “real property,” it said. His complaint alleges unlawful detainer, ejectment and mesne profits. Crown Castle “specifically reserves its rights to assert any defense,” said its notice of removal.
Elkhart, Indiana's denial of Verizon’s application to build a wireless facility to remedy a deficiency in its cellular network that causes dropped calls (see 2310170016) “is supported by substantial evidence in the record and free from legal error,” and so it doesn’t violate Section 332 of the Telecommunications Act, Indiana law or the city’s zoning ordinance, said the city’s answer Tuesday (docket 3:23-cv-00913) in U.S. District Court for Northern Indiana in South Bend. Verizon failed to establish that the proposed facility wouldn’t adversely affect the neighboring properties and the character of the neighborhood, said the answer. It also failed to establish that the proposed facility would “fill an existing significant gap in service and that, even if there exists a significant gap in service, that the proposed wireless communications facility is the least intrusive means,” it said. The case should be remanded to the city’s board of zoning appeals, so it can provide a written decision that explains its denial of Verizon’s use variance petition under Section 332, it said.
Barbara and Everett Knudson, the bed-and-breakfast owners who seek to intervene on the side of Walla Walla, Washington, in the city’s cell tower dispute with AT&T (see 2401170024), “meet the standard for intervention as of right,” said their reply Tuesday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland in support of intervention. The city supports their intervention, but AT&T opposes it (see 2402010001). The Knudsons’ B&B sits just 500 feet from the site of AT&T’s proposed 65-foot tower. AT&T doesn’t contest that the Knudsons’ motion is timely or that the Knudsons “are situated such that the disposition of this action may impair or impede their ability to protect their interests,” said their reply. AT&T is wrong when it asserts that the Knudsons’ interests aren’t protectable by the court and that their interests are “adequately represented” by the city, it said. The Knudsons also meet the standard for permissive intervention, said their reply. The Knudsons won’t raise new claims, and their motion is timely, it said. “That leaves only the question of whether there is common question of law and fact between the movant’s claim or defense and the main action,” it said: “There is.”