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.

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.

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.

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.

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.

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).

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).