Charter Communications’ negligence when attaching a cable to an Oregon Trail Electric Cooperative’s utility pole led to a broken pole and a subsequent power outage that affected 1,000 OTEC customers and caused over $8,600 in damage, alleged a Friday complaint (docket 23-cv-23236) in Oregon Circuit Court in Baker. OTEC and Charter entered a license agreement in August 2000, under which Charter can attach cables to OTEC’s poles under certain terms, including keeping them in “thorough repair.” On June 15, Charter failed to maintain a cable by allowing it to have less than 15 feet, 6 inches of clearance, and a truck and trailer hooked the cable, causing the pole to break, the complaint said. The height of the truck and trailer that snagged the cable was 13.2 feet tall, it said. The utility incurred costs of making repairs, replacing the pole and restoring electrical service, it said. OTEC claims breach of contract and negligence and seeks damages of $8,923, which includes interest.

Denco Construction caused more than $23,000 in damages to Crown Castle’s underground telecom cable in July 2019 when excavating with mechanized equipment in Cape Coral, Florida, alleged Crown Castle in a negligence complaint Friday (docket 362023CC003651A001CH) in 20th Judicial Circuit Court in Lee County, Florida. Crown Castle’s cable “constitutes movable property, for which Crown Castle has the right of peaceable, undisturbed possession,” said the complaint. Denco “interfered with said possession when it knowingly and intentionally excavated” without maintaining “due clearance” of the cable, it said. The complaint accuses Denco of failing to excavate “in a careful and prudent manner based on accepted engineering and construction practices” as required by Florida law. Denco didn’t respond to requests for comment Monday.

The U.S. District Court for Western Pennsylvania in Pittsburgh designated the dispute between Verizon and Cambria County, Pennsylvania, for placement in its alternative dispute resolution program, said a notice Thursday (docket 3:23-cv-00108). The county’s lawsuit alleges Verizon is leaving in disrepair many portions of the telephone facilities and conduit under its control along a funicular connecting the city of Johnstown to the borough of Westmont, in breach of its easement agreement (see 2306020001). Verizon contends that the county’s “true reason” for bringing its lawsuit is to extract rental payments from Verizon for its continued use of the easement (see 2306070030).

The city of Roswell, Georgia, posed two dozen questions to T-Mobile Thursday about the current process it uses to evaluate the need for a cell tower, and how that process differs from the one in place when the city rejected T-Mobile’s cell tower application in 2017. Thursday’s notice (docket 1:10-cv-01464) conformed to the first deadline on the schedule in the June 2 order signed by U.S. District Judge Amy Totenberg for Northern Georgia in Atlanta aimed toward continuation of a September 2018 evidentiary hearing on the parties’ motions for summary judgment. After releasing her March 17 opinion and order saying the FCC’s September 2018 small-cells declaratory ruling can’t be applied retroactively to Roswell’s 2017 denial of T-Mobile’s cell tower application (see 2303210036), Totenberg asked the parties to confer about the most efficient way to continue the nearly four-year-old evidentiary hearing. The schedule she adopted from their proposed order was the result. Among the other questions Roswell posed to T-Mobile: (1) What has the carrier done to “identify potential alternative cell sites” for the proposed tower since September 2018?; (2) What are the current standards that T-Mobile uses to define necessary capacity, throughput speed, signal strength, and signal quality, and how do they differ from the standards used when T-Mobile originally submitted its cell tower application in 2017?; (3) What's the average number of connected users that can currently be accommodated at each bandwidth frequency in the area of the proposed tower?; and (4) Did T-Mobile procure any new frequencies, bandwidth or access to towers or alternative structures located in Roswell as the result of the 2020 Sprint merger? Following T-Mobile’s written request for information from Roswell, also due Thursday, the parties have until July 14 to respond, said Totenberg’s order.

Plaintiff Olcan III Properties’ second amended complaint against defendant Global Tower has “sufficient detail” to survive Global Tower’s motion to dismiss, said Olcan’s memorandum of law Wednesday (docket 1:22-cv-02456) in U.S. District Court for Maryland in Baltimore. Olcan’s amended complaint alleges Global Tower’s use of an easement to access the tower on the rooftop of a building that Olcan owns caused Olcan “to incur repair costs and to lose rents and profits” (see 2211140050). It seeks $75,000 in damages for breach of contract, negligent misrepresentation and public nuisance. Global Tower’s motion to dismiss said Olcan “neglected its property for years, failing to conduct the routine upkeep and care required to maintain the building” (see 2302010046). Olcan “baldly asserts it has suffered harm, but does not specifically identify the harm or how Global Tower caused it,” said the motion. Olcan’s second amended complaint describes the damages to the building that Global Tower caused, said the memorandum in opposition. The installation, removal, maintenance and repair of Global Tower’s cell towers “caused damage to the roof and the apartment and commercial units as well as the infrastructure,” said the memorandum: “These actions are breaches of the agreements set forth herein.”

Cambria County, Pennsylvania, wrongly alleges in its complaint that many portions of the telephone facilities and conduit in an easement under Verizon’s control along the Inclined Plane funicular connecting the city of Johnstown to the borough of Westmont are in disrepair (see 2306020001), said Verizon’s memorandum Tuesday (docket 3:23-cv-00108) in U.S. District Court for Western Pennsylvania in Pittsburgh in support of its motion to dismiss. Verizon “is committed to maintaining its facilities along the Inclined Plane and has and will continue to make such repairs as are necessary,” it said. But the county’s “true reason” for bringing its lawsuit is to force Verizon to pay a fair-market rent for its continued use of the easement “for which it has already bargained and provided sufficient consideration, and which remains valid and binding,” it said. All of the county’s “asserted causes of action fail as a matter of law,” it said. Plaintiffs allege in Count I that Verizon breached the subject easement agreement by failing to “maintain” its facilities within the easement. The easement agreement “conveys to Verizon the right -- and not the obligation -- to maintain its facilities,” it said. “Nowhere does the agreement say that Verizon has a duty to make the repairs which could be breached or that an alleged failure negates Verizon’s easement rights as defined in the agreement,” it said. The county “improperly and inexplicably” seeks an award of damages for the nonexistent breach and for the court to rewrite the agreement and order additional payments from Verizon “not originally bargained for and not in any way associated with the purported breach,” it said. The county not only failed to state a claim for breach of contract, but also seeks a form of relief “that fails as a matter of law,” it said.

Contrary to the assertions of the city of Pasadena, Texas, in its May 31 Rule 28(j) letter to the 5th U.S. Circuit Appeals Court on the implications of the Supreme Court’s recent grant of cert in Loper Bright Enterprises et al v. Raimondo et al (see 2305010038), Chevron deference “is not at issue in this case because the district court did not ground its decision on Chevron,” said Crown Castle’s reply letter to the 5th Circuit Friday (docket 22-20454). Pasadena seeks the reversal of the district court’s Aug. 2 decision granting Crown Castle summary judgment (see 2212090044). The lower court agreed with Crown Castle that the city violated Section 253 of the Telecommunications Act by impossibly requiring small-cell nodes to be buried underground and spaced in a limiting way. It also agreed the TCA preempts the city's authority to enforce its design manual containing those requirements. Based on the Hobbs Act, the district court said it lacked authority to “second-guess” the FCC’s small cell order “in this particular proceeding,” Crown Castle told the 5th Circuit. Under the Hobbs Act, FCC orders “may only be challenged via a petition for review to the appropriate court of appeals,” it said. “In a proceeding where an FCC order is directly on review, the Chevron analysis could be implicated,” it said. “But as the district court noted, this is not such a proceeding,” it said. Pasadena doesn’t challenge that reasoning, and indeed concedes it can’t use Loper Bright as a “collateral proceeding to attack the FCC’s order,” said Crown Castle. The FCC’s small cell order was appealed under the Hobbs Act “and was affirmed in relevant part” in the 9th Circuit’s 2020 decision in City of Portland v. United States, it said. Several Texas cities participated in that case, but Pasadena chose not to, it said. Pasadena can’t “collaterally attack the order in this subsequent proceeding,” it said. Loper Bright “is thus a red herring” since the district court’s decision in this case doesn’t “implicate” Chevron, it said.

Many portions of the telephone facilities and conduit under Verizon’s control along a funicular in Cambria County, Pennsylvania, “remain in disrepair,” alleged the county in an October 10 complaint in state court that Verizon removed Tuesday to U.S. District Court for Western Pennsylvania in Pittsburgh (docket 3:23-cv-00108). The funicular, called the Inclined Plane, travels along the "steep slope" of Yoder Hill, connecting the city of Johnstown to the borough of Westmont, it said. Verizon failed to maintain its communications facilities by allowing for the subpar conditions “to manifest and remain,” it said. Until those conditions are repaired, Verizon will remain in breach of its lease agreement with the county, it said. The county will continue to suffer lost revenue for any extended period of time the funicular is shut down, it said. Under federal guidelines, “where federal funding is used in the procurement of communications facilities, land used for such facilities must be compensated for at fair market value,” it said. Despite the county’s attempts to renegotiate the right of way agreement Verizon inherited from GTE “to provide for rent from Verizon at fair market value to comply with such guidelines,” Verizon hasn’t actively participated in such negotiations, “and continues to pay no rent for its use of the right of way,” it said.

The 9th U.S. Circuit Court of Appeals scheduled a dial-in telephone mediation conference in Verizon’s dispute with the city of Carmel-by-the-Sea, California, for June 12 at 2: 30 p.m. PDT, said its order Thursday (docket 22-16153). Verizon seeks reversal of the district court’s grant of summary judgment in the city’s favor on grounds that the municipality unlawfully denied its application for a conditional use permit to install a wireless facility to remedy a worsening coverage gap. Verizon asserts the district court improperly said the Telecommunications Act imposes no obligation on the city to issue a written notification of its denial.

U.S. District Judge Stephen Bough for Western Missouri denied the two separate motions of the city of St. Joseph to dismiss AT&T’s cell tower complaint for lack of jurisdiction and for failure to state a claim, said his signed order Tuesday (docket 5:21-cv-06114). The court said “it has jurisdiction over this case” and AT&T’s claims “are adequately stated.” AT&T alleges the city’s denial of an application to build a 175-foot cell tower to promote continuous wireless coverage in the municipality wasn’t supported by substantial evidence contained in a written record, and effectively prohibits the provision of personal wireless services in the vicinity of the proposed tower.