U.S. Magistrate Judge Steven Tiscione for Eastern New York in Central Islip convened a settlement conference Wednesday in AT&T’s cell tower dispute with the village of Oyster Bay Cove, New York, but the parties “were unable to reach a disposition at this time,” said a civil minute entry Thursday (docket 2:22-cv-07807). The judge previously denied the village’s motion to cancel the settlement conference on grounds that it would be futile for resolving the case (see 2306300021). The parties will continue with discovery and will advise the court “if a further settlement conference would be productive,” said the minute entry. AT&T’s Dec. 22 complaint alleges the village’s denial of its cell tower application violated the Telecommunications Act by prohibiting the carrier from providing wireless telecommunications services. AT&T further contends the village failed to act on its application before the statute's shot clock expired, and the denial wasn’t based on substantial evidence in a written record, as the TCA requires.

“Disputed factors favor intervention as of right” of 255 Kootenai County, Idaho, residents in AT&T’s cell tower fight with the municipality, said the residents’ reply Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho in support of their motion to intervene. AT&T opposes the motion, and the county takes no position (see 2307170016). The intervenors “have protectable interests” that are distinct from those of the county and may not be “adequately advanced” by the municipality, said the residents. AT&T contends the residents “lack any protectable interest warranting intervention,” but that conclusion “is mistaken,” they said. The pre-litigation history of AT&T’s dispute with the county bolsters the intervenors’ argument that the municipality may not adequately represent or protect the residents’ interests, they said. The 9th Circuit has said the burden on proposed intervenors in showing inadequate representation of their interests by existing parties is “minimal,” and is satisfied if they can demonstrate that representation may be inadequate, they said. The best evidence supporting the claim the county won’t or can’t adequately represent and protect the residents’ interests is when the county voted against those interests, and in AT&T’s favor, “when first given the chance,” they said. Only after the residents filed “multiple requests for reconsideration” did the county “align itself with and protect the same interests” as the residents, they said.

U.S. Magistrate Judge Anne Shields for Eastern New York in Central Islip scheduled an in-person initial case management conference Nov. 8 at 11:30 a.m. on T-Mobile’s infrastructure complaint against the town of Oyster Bay, New York, said her signed order Wednesday (docket 2:23-cv-05339). T-Mobile’s July 13 complaint alleged Oyster Bay’s denial of T-Mobile’s application for a rear yard variance necessary to install and operate a wireless telecom facility to remedy a significant gap in wireless services was “unreasonable and unsupportable” (see 2307140001). T-Mobile also alleged the town imposed “unreasonable, excessive, and prohibitive escrow charges and application fees.”

The motion of roughly 255 residents of Kootenai County, Idaho, to intervene in AT&T’s cell tower dispute with the county should be denied because the residents “have failed to establish two of the four factors required for intervention as a matter of right,” said AT&T’s opposition Friday (docket 2:23-cv-00124) in U.S. District Court for Idaho. The county is on record as having no objection to the residents’ motion in which they argue they can’t rely on the municipality to protect their interests (see 2307140006). But the residents “lack a significantly protectable interest relating to the property or transaction that is the subject of this action,” and they can’t establish that the county won’t “adequately represent” their interests, said AT&T. The residents also have failed to satisfy “the required elements of permissive intervention,” it said. They haven’t identified, let alone proved, a common question of law and fact between the movant’s claim or defense and the main action, it said.

Defendant AT&T raises a “novel defense” to justify its refusal “to simply pay its bills,” when it argues that none of plaintiff Core Communications’ toll-free access charges is “enforceable,” said Core’s memorandum Friday (docket 2:21-cv-02771) in U.S. District Court for Eastern Pennsylvania in Philadelphia in opposition to AT&T’s June 30 motion for summary judgment (see 2307030004). Core is seeking to recover $11.4 million in unpaid access services charges from AT&T, which refuses to pay, claiming nearly 100% of the calls that CoreTel affiliates in Delaware, New Jersey, Virginia and West Virginia connected were fraudulent (see 2212280001). AT&T began withholding payment from Core related to toll-free traffic, initially remitting only partial payment, said Core’s opposition. By 2020, AT&T “began withholding substantially all payments” that Core and its affiliates claimed to be owed for their participation in the toll-free telecommunication services “call path,” it said. It’s undisputed that the “entirety” of the traffic that Core routed to AT&T was passed along in IP formats, it said. But AT&T is now suggesting that “this circumstance alone” renders all traffic routed by Core “uncompensable,” it said, “and that is just not the case.”

Defendant Kootenai County, Idaho, “has no objection” to the motion of about 255 residents to intervene in the county’s cell tower fight with AT&T, said the county’s response Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho. The residents argued they can’t rely on the county to protect their interests in AT&T’s dispute with the municipality over the cell tower (see 2306300047). AT&T’s March 29 complaint seeks declaratory and injunctive relief based on the county’s denial of its application for a conditional use permit to build the 150-foot lattice tower in the northwest corner of the state near the Washington border (see 2303300046).

The Jefferson County, West Virginia, planning commission's denial of Vertical Bridge's application to build a 100-foot monopole cell tower violates the Telecommunications Act, alleged Vertical Bridge's complaint Thursday (docket 3:23-cv-00171) in U.S. District Court for Northern West Virginia in Martinsburg. The county’s “improper and arbitrary" denial of Vertical Bridge’s application wasn't based on substantial evidence in the written record, as the TCA requires, and “amounts to an effective prohibition of enhanced cellular service,” also in direct violation of the statute, said the complaint. Vertical Bridge complied with all applicable federal, state and local requirements for communications towers, after a wireless carrier engaged Vertical Bridge to locate, construct and operate a cell tower in Jefferson County to “resolve a gap in coverage” around Shannondale and to “improve its overall network,” the complaint said. Vertical Bridge evaluated six sites and decided the Lakeside Dr. property was the “ideal location” for building the proposed tower, which complies with county code, it said. Vertical Bridge submitted an application for the tower concept to the planning commission April 26. On May 5, Vertical Bridge’s application was deemed compliant by planning staff provided an FCC license was submitted; the company then submitted the FCC license, and a staff report indicated the application was complete based on information about criteria in the subdivision regulations and zoning ordinance. At a public hearing June 13, members of the public voiced various objections to approval of the “minor site plan,” the complaint said. Despite having no discretion to deny the application because it complied with the county code, the planning commission did, in fact, deny the application. Vertical Bridge requests that the court issue an order declaring the denial of its application isn’t supported by “substantial evidence” in the written record, in violation of the Telecommunications Act, plus an order declaring Vertical Bridge’s right to approval of its application. It also seeks an order reserving jurisdiction to the court to resolve any issues between the parties regarding further permit issues.

Verizon and Rankin County, Mississippi, reached a compromise over the municipality’s denial of Verizon’s application to build and operate a 200-foot-tall monopole cell tower to fill a significant gap in wireless coverage and capacity in the area, said their joint motion for an order and final judgment Wednesday (docket 3:23-cv-00381) in U.S. District Court for Southern Mississippi in Jackson. The judgment, if approved by the court, “will fully dispose of all claims in this case,” said the motion. The county agreed to “expeditiously issue” Verizon a conditional use permit, plus any approvals necessary, authorizing construction of the tower, and is barring from imposing any penalties against Verizon that would impede progress on the tower, it said. “The parties have considered their positions in this litigation and, to avoid any further expense and risk associated with this case, stipulate to the entry of Judgment and resolution of this case,” it said. Each side will bear its own attorneys’ fees and court costs, it said.

There’s “no dispute” about what legal standard the court should apply to AT&T’s claim that authorities in Lane County, Oregon, unlawfully prohibited the provision of wireless services when they denied AT&T’s application to build a new cell tower, said AT&T’s reply memorandum Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene in support of its motion for summary judgment against the municipality. Lane County also moved for summary judgment against AT&T (see 2307070016). AT&T’s motion asks the court to rule that AT&T has a significant service coverage gap, and that the proposed cell tower “is the least intrusive means for closing that gap,” it said. AT&T proved the existence of a gap, it said. It also submitted evidence of its “exhaustive search for an alternative location and shown how there are no other locations available or feasible that will close that gap,” it said. AT&T proved this “via evidence provided at the administrative level and evidence submitted in support of its motion,” it said. The county “submitted zero evidence in response,” said AT&T. It instead “offered factual misrepresentations regarding the administrative record and distracting and unconvincing legal arguments,” it said.

Lane County, Oregon, in its June 1 motion for summary judgment (see 2306020025), established that it’s “entitled to judgment as a matter of law” on AT&T’s claims the county violated Section 332 of the Telecommunications Act when it denied AT&T’s application to build a new wireless tower, said the county’s reply Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene in support of its motion. AT&T’s application didn’t describe any personal wireless services it would be effectively prohibited from providing without a new tower, it said. Nor did AT&T provide “the basic information necessary” for the county to determine whether the proposed tower “was the least intrusive means to fill any alleged gap in coverage for personal wireless services,” it said. That’s the “sole and controlling test” for determining a Section 332 violation, it said. AT&T then failed to follow Oregon’s land use process, which requires an appeal to the Land Use Board of Appeals as the final step in a land use application, it said. AT&T now asks the court to consider new evidence never provided to the county in the application process, it said. That would effectively bypass the local zoning process that Congress “expressly preserved” when it enacted Section 332, it said. The “material facts” in the case aren’t in dispute, it said. Under binding 9th Circuit precedent, the county “is entitled to judgment as a matter of law denying AT&T’s claims,” it said.