Walla Walla, Washington, denies that the 65-foot faux pine tree cell tower that AT&T proposes to install is needed to close a service gap and provide wireless services, said the city’s answer Tuesday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland to AT&T’s Dec. 1 complaint (see 2312040002). All of AT&T’s claims, other than federal claims "cognizable" under Section 332 of the Telecommunications Act, are time-barred under Washington’s Land Use Petition Act because AT&T didn’t timely file a petition, said the city’s answer. AT&T also failed to satisfy the requirements of the Walla Walla municipal code, it said. The code’s provisions are imposed on “a competitively neutral basis,” and are consistent with Section 254 of the TCA, it said. The code is necessary “to preserve and advance universal service,” protect the public safety and welfare, ensure continued quality of telecommunications services “and safeguard the rights of consumers,” it said. The city urges the court to dismiss AT&T’s complaint with prejudice, and to declare that it didn’t violate any provision of the TCA’s Section 332, it said.

Milwaukee and its public works commissioner, Jerrel Kruschke, seek the dismissal with prejudice of Verizon’s Nov. 24 complaint to force the city to approve the installation of four small cells on newly constructed poles in the public rights of way in the city’s Deer District in time for next summer’s Republican National Convention (see 2311270034), said their answer Thursday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in Milwaukee. The pedestrian mall outside the Fiserv Forum, site of the July 15-18 convention, is leased to the Wisconsin Center District and subleased to Dear District LLC and "is not right-of-way" for the purposes of the FCC's enforcement of the Telecommunications Act, said the answer. Milwaukee and Kruschke “admit and affirmatively” allege that Verizon initially proposed collocating the small cells on existing poles that were not owned by the city, it said. The existing poles are owned by the Deer District LLC, and neither state nor federal law authorizes the city “to require a third party to allow Verizon to collocate on poles owned by the third party,” it said. The defendants also “affirmatively allege that Verizon has alternatives to the proposed small cell installations,” it said.

U.S. Magistrate Judge Lee Dunst for Eastern New York in Central Islip is recommending that U.S. District Judge Joanna Seybert grant the motion of Muttontown, New York, to dismiss all claims in AT&T’s September 2022 cell tower complaint for its failure to properly make a legally justiciable claim, said Dunst's report Monday (docket 2:22-cv-05524). Seybert referred the case Oct. 26 to Dunst for his recommendation (see 2310270055). AT&T alleges Muttontown unlawfully denied its application to build a 165-foot-high cell tower to remedy a significant coverage gap. The village contends that its planning board and its site and architectural review board had no subject-matter jurisdiction over AT&T’s tower application, so there’s no justiciable controversy between the company and those entities. It also argues that AT&T’s claims against those bodies must be dismissed under Article III. Dunst finds that AT&T’s shot clock violation claims under the Telecommunications Act are “are abstract and speculative,” said his report. It’s also long settled that Article III limits the subject matter of federal courts to justiciable cases or controversies, it said. AT&T’s allegations don’t demonstrate “any actual controversy” against the village or its various boards, it said. There’s no claim in AT&T’s complaint that, if taken as true, would demonstrate that any of these entities had jurisdiction to approve the proposed cell tower, it said. The defendants argue that the claims against Muttontown’s zoning board should be dismissed under Rule 12(b)(6) because AT&T doesn’t plausibly allege violations under the TCA or applicable state statutes, and the magistrate judge agrees, said the report. It’s difficult, for example, to see how the zoning board could have violated the TCA’s shot clock, it said. Much like the shot clock claim, AT&T provides only “cursory legal allegations” in support of its claim that Muttontown’s denial effectively prohibited AT&T from providing wireless services, said the report. To pursue a “valid” prohibition claim, a plaintiff must plausibly allege that defendants “rejected a proposal to remedy an existing gap in coverage by rejecting an application that was the least intrusive means of closing that gap,” it said. But AT&T’s complaint has no “factual allegations” that the proposed tower “was the least intrusive means of closing the service gap,” said the report. In fact, the complaint “provides only one cursory allegation on this point,” it said.

AT&T seeks equitable relief, declaratory judgment and expedited review challenging the “unlawful denial” by Jennings, Louisiana, of AT&T’s application to build an 80-foot wireless telecommunications facility within the city’s jurisdiction, said its complaint Monday (docket 2:23-cv-01769) in U.S. District Court for Western Louisiana in Lake Charles. AT&T has sought for “several years” to build a wireless facility in Jennings, located about 40 miles east of Lake Charles, said the complaint. But the city “has consistently frustrated these efforts” by refusing to issue the approvals and permits necessary to develop the facility, even though AT&T is entitled to develop the facility under the city’s ordinances, it said. The complaint names Phillip Arceneaux, in his official capacity as city inspector, as a co-defendant with Jennings. The complaint marks the second time the parties have been before the court as a result of the city’s violation of Section 332 of the Telecommunications Act, said the lawsuit. The court in the first lawsuit granted AT&T summary judgment on Sept. 22, finding that the city violated the TCA “by failing to resolve AT&T’s applications,” it said. The court ordered the city to “render a decision” on AT&T’s applications by Nov. 21, it said. Jennings complied with the order when it denied the applications on Nov. 14 and when it provided a written denial a week later, said the complaint. But in so doing, the city again violated the TCA, it said. The denial was unlawful under the TCA because it wasn’t supported by substantial evidence contained in a written record, it said. It also effectively prohibited AT&T from offering wireless services in the city, and it discriminated against AT&T, “relative to other providers of wireless service,” it said. As a result of the city’s “willful thwarting” of the congressional goal of rapidly developing telecommunications facilities, AT&T has “no choice but to again file suit” to require Jennings to permit the building of a new wireless facility, said the complaint. AT&T needs the facility to fill a “significant gap” in its wireless network coverage in and around the city, it said. AT&T “is entitled to an order” directing Jennings to grant its application, it said.

Verizon filed suit against Lavallette, New Jersey, and its council to challenge their “unreasonable and unsupported denial” of the carrier's application for permit approval for the installation of five small wireless facilities within the borough’s public right of way, said its complaint Wednesday (docket 3:23-cv-23072) in U.S. District Court for New Jersey in Trenton. The proposed SWFs are necessary to remedy a significant gap in reliable wireless service, and are the least intrusive means to remedy that gap, said the complaint. The denial materially inhibited the provision of personal wireless and telecommunications services, in violation of Section 704 of the Communications Act, it said. The borough denied the application without substantial evidence contained in the written record, and unreasonably delayed the application, it said. Lavallette also illegally based the denial on the federally preempted issue of environmental effects of RF emissions, it said. The borough also imposed “unreasonable and prohibitive” application and code requirements, including unreasonable, excessive and prohibitive escrow charges and application fees, that materially inhibit or limit Verizon’s ability to provide personal wireless and telecommunications services to the public. The borough’s conduct warrants injunctive relief mandating that it issue all required approvals for the construction of the SWFs under the Communications Act, the complaint said.

U.S. Magistrate Judge Matthew Skahill for New Jersey in Camden will convene a telephone status conference Feb. 16 at 10:30 a.m. in Verizon’s infrastructure lawsuit against Ocean City, New Jersey, said Skahill’s signed scheduling order Friday (docket 1:23-cv-04370). Verizon seeks expedited review of its allegations against Ocean City, New Jersey, for the city’s “unreasonable and unsupportable” denial of Verizon’s application for “minor site plan approval” to build and install a personal wireless services facility (see 2308140028).

Lake County, Montana, denies it violated the Telecommunications Act when it rejected Vertical Bridge’s applications to build a cell tower to remedy a gap in wireless coverage near the Finley Point area of Polson (see 2308170002), said the county’s answer Monday (docket 9:23-cv-00091) in U.S. District Court for Montana in Missoula. Vertical Bridge failed to show that the proposed tower was the least intrusive means of remedying the gap in coverage, or that it would remedy that gap, it said. Discovery in the case hasn’t begun, and the county is uncertain “what affirmative defenses may apply if this case goes to trial,” it said. Discovery, trial preparation and the facts of the case “may make some of the affirmative defenses applicable,” which is why they are being raised now “to avoid being waived,” it said.

AT&T is asking U.S. Magistrate Judge Mustafa Kasubhai for Oregon to reconsider and reverse his Oct. 25 opinion and order granting summary judgment for Lane County, Oregon (see 2310260038), and that he approve AT&T’s application that the county denied to build a 150-foot cell tower on a five-acre parcel of land near Oregon’s Pacific Coast, said AT&T’s motion Friday (docket 6:22-cv-01635). In dismissing AT&T’s case, the judge held that AT&T failed to exhaust its remedies under Oregon’s administrative land use process. Despite Lane County's final action to deny the tower application, Kasubhai ruled that AT&T was required to take yet another administrative step, and appeal that local decision to Oregon’s land use board of appeals before AT&T could present a federal claim under the Telecommunications Act. But the judge’s decision “was incorrect and should be reconsidered and reversed,” said AT&T’s motion. The “plain language” of the TCA, plus a “clear reading” of Oregon statutory law, “all dictate that Lane County’s decision was the required final action for a TCA claim,” it said. AT&T’s claims “are ripe for adjudication,” it said.

Interrogatories and the first requests for production of documents are due Dec. 15 in discovery in T-Mobile’s cell tower fight against the village of Chestnut Ridge, New York, according to a case discovery plan and scheduling order signed Tuesday (docket 7:23-cv-05852) by U.S. District Judge Cathy Seibel for Southern New York in White Plains. T-Mobile alleges that Chestnut Ridge violated Section 704 of the Communications Act through its “unreasonable and unsupportable denials” of T-Mobile’s applications to build a 105-foot monopole cell tower (see 2307110008). All fact discovery in the case is to be completed by May 3, and all expert discovery is to be done by Aug. 19, said the scheduling order. T-Mobile's counsel, with Chestnut Ridge’s consent, proposed the scheduling order to the judge in a letter Tuesday. “The parties are amenable to exploring a settlement of this litigation, whether now or upon the completion of discovery,” said the letter. They agreed to the proposed schedule “ito provide the parties with sufficient time to try to reach such a settlement at various stages of discovery,” it said.

All Phase I discovery in T-Mobile’s cell tower fight against Oyster Bay, New York, will be complete by Jan. 12, and an in-person status conference is scheduled for Jan. 29 at 11 a.m. EST in the Central Islip courthouse, said a text-only scheduling order Wednesday from U.S. Magistrate Judge Anne Shields for Eastern New York. T-Mobile sued Oyster Bay July 13 for Telecommunications Act violations for the town’s “unreasonable and unsupportable 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 in the area (see 2307140001). The town is challenging T-Mobile’s lawsuit on constitutional grounds (see 2308090016). It argues 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.”