Verizon Says Disputed Small Cells ‘Operational' for July's GOP Convention

The district court properly held that federal law preempted Milwaukee’s denials of Verizon’s small-cell applications to bolster wireless coverage in the public pedestrian mall outside Fiserve Forum in time for the 2024 Republican National Convention, Verizon’s opening appellee brief said Friday (docket 24-1212) in the 7th U.S. Circuit Court of Appeals. Milwaukee’s Deer District, an intervenor-defendant in Verizon’s small-cells dispute with the city, is appealing the U.S. District Court for Eastern Wisconsin’s Jan. 29 decision and order requiring that the city issue Verizon its requested permits (see 2402120027). The district court held that substantial evidence didn’t support the city’s two timely raised reasons for the denials, said Verizon’s brief. Milwaukee’s untimely raised reason -- that the city had given up its permitting authority in a lease -- “was time-barred and meritless,” said the brief. Deer District doesn’t challenge the district court’s application of federal law, “which is a sufficient basis to affirm,” it said. Deer District, like the city, can’t defend the permit denials based on the city’s lease, which wasn’t a reason included in the city’s timely issued denial, it said. The challenges of Deer District to the district court’s interpretation of the city’s lease “also fail on the merits,” Verizon’s brief argues. The public pedestrian mall was a right of way (ROW) before the city leased it to the Wisconsin Center District, which subleased it to Deer District, it said. The lease didn’t alter the status of the pedestrian mall as a ROW, it said. The pedestrian mall is also a ROW under Wisconsin’s small-cell statute, which defines the term to include property that’s similar to a sidewalk, said Verizon’s brief. The public mall is designed for pedestrian use, “just like a sidewalk -- it is simply a very large sidewalk,” it said. The small-cell statute didn’t alter Deer District’s property rights, “and no question exists to certify to the Wisconsin Supreme Court,” it said. As the district court found, the city’s timely reasons for denying Verizon’s permit applications were “a mere pretext,” Verizon’s brief said. The city’s real reason was a desire to assist Deer District’s effort to force Verizon to pay more than $10 million to Deer District for an inferior solution to Verizon’s network coverage needs, it said. Following the district court’s ruling, the city issued the permits, and Verizon “has installed its small cell facilities, which are now operational,” said Verizon’s brief. Nothing that Deer District raises on appeal “provides any basis to declare Verizon’s permits invalid,” it said. This 7th Circuit “should affirm,” it said.