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.”

U.S. District Judge Mark Mastroianni for Massachusetts in Springfield denied Verizon’s motion for summary judgment against the town of Southwick, Massachusetts, on count I of its March 2021 complaint that the town’s denial of Verizon’s cell tower application wasn’t supported by substantial evidence in the written record, in violation of the Telecommunications Act (see 2306200040), said the judge’s electronic order Monday (docket 3:21-cv-10414). His order granted the town’s cross-motion for summary judgment against Verizon. The Southwick planning board’s denial was based on four general and “sometimes overlapping” categories -- aesthetic concerns, negative impact on property values, health and safety concerns and negative impact on recreational use of the property, said the order. If substantial evidence supports the board’s findings as to any one of those categories, its decision “must be affirmed under the substantial evidence standard,” it said. The court concludes, in light of the entire administrative record, that substantial evidence supports the board's findings regarding aesthetics, “rendering analysis of the other categories unnecessary,” said the order. The planning board denied Verizon’s application under two different sections of the town zoning bylaws governing aesthetics, “both of which must be satisfied,” it said. The board’s “discretionary judgment calls” about the aesthetics and visual impact of the proposed cell tower in relation to its unique residential location are supported by more than a scintilla of evidence, said the order. In particular, the planning board “considered objective evidence which supported its findings,” it said. The board “also considered the specific input from nearby residential property owners as to the visual impact on their homes and the neighborhood as a whole,” it said. Verizon hasn’t carried its burden of demonstrating that the planning board's decision isn’t supported by substantial evidence, said the order. The court will schedule an April 22 trial on Count II, which asserts an effective prohibition claim under the TCA, it said.

Appellant AT&T and Los Altos, California, seek an order dismissing AT&T’s appeal over the installation of small cells in the city’s rights-of-way, said their stipulated motion Friday (docket 22-16432) in the 9th U.S. Circuit Court of Appeals. “The parties have agreed that each side shall bear its own costs and fees on appeal,” said the motion. The appeal was docketed at the 9th Circuit in September 2022 but held in abeyance while the parties attempted several rounds of mediation. The dispute began in 2019 when AT&T applied to install 12 small cells on existing utility poles in the city’s rights-of-way. Los Altos responded to AT&T’s applications by changing its ordinances to prohibit such installations. AT&T then sued under Section 332 of the Telecommunications Act. Roughly 30 months after denying AT&T’s permit applications, and while the company's Section 332 claims were pending, Los Altos adopted new wireless regulations. At the city's urging, the district court then dismissed AT&T's claims as moot, leaving it to start over with new permit applications under the city's new wireless regulations. AT&T’s main issues on appeal included whether the district court erred in dismissing its claims as moot, including its claims that the city's 2019 permit denials weren’t supported by substantial evidence as the TCA required.

U.S. District Judge Terry Doughty for Western Louisiana in Monroe granted the Jan. 24 motion of plaintiff Travelers Casualty Co. to voluntarily dismiss its allegations of negligence per se against AT&T and its contractor Deviney Construction. Louisiana law doesn’t recognize an independent cause of action of negligence per se under Rule 41(a)(1)(A)(i), said Doughty’s signed order Tuesday (docket 1:24-cv-00022). The insurer seeks to recover nearly $530,000 for its client, Loboda Properties, for damage that AT&T and its contractor, Deviney Construction, allegedly caused to an underground electrical conduit near a commercial retail building that Loboda owns in Natchitoches, Louisiana (see 2401080004).

With Phase I discovery now complete in T-Mobile's cell tower dispute with the town of Oyster Bay, New York, the case's Phase II discovery schedule is in effect, while the parties continue holding settlement negotiations, said U.S. Magistrate Judge Anne Shields for Eastern New York in Central Islip in a text-only scheduling order Monday (docket 2:23-cv-05339). All Phase II fact discovery will be complete by July 3, and all discovery, including expert discovery, by Oct. 23, said the order. Any party seeking to make a dispositive motion shall initiate that process, consistent with the district judge's individual rules, by Nov. 25, it said. The judge instructed counsel to submit a joint letter by July 9 advising her as to the status of the case. T-Mobile alleges that Oyster Bay ran afoul of the Telecommunications Act by denying its application for a rear-yard variance to install a wireless telecom facility (see 2307140001). The town contends that T-Mobile’s claims violate the 10th Amendment “by commandeering local municipalities to issue zoning approvals and building permits,” despite local objections and compliance with state and local “substantive and procedural law” (see 2308090016).