There’s “no dispute” that AT&T has a “significant service coverage gap” in Walla Walla, Washington, said AT&T’s reply Thursday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland. AT&T's April 25 motion seeks summary judgment for the city’s denial of its application for a conditional use permit to build a 65-foot cell tower (see 2404260004). The only issues for the court to decide about AT&T’s effective prohibition claim under the Telecommunications Act are whether the carrier submitted a complete tower application, and whether the city met its burden to identify an available, feasible and less intrusive alternative to the proposed tower, said the reply. The defendant didn’t offer any available alternatives during the administrative process, “as contemplated by federal case law,” said AT&T. Despite this, the city has pointed to four “purported alternatives” to the tower through its briefing on the parties’ cross-motions for summary judgment, it said. But none of those “alleged” alternatives is “both available and feasible,” it said. Because there’s no dispute about AT&T’s coverage gap, and because the city can’t identify an available and feasible alternative to the tower, the city has effectively prohibited the plaintiff from providing wireless services in violation of the TCA, it said. The “appropriate remedy” is for the court to order the city to grant AT&T’s requested permit, it said.

The 9th U.S. Court of Appeals granted AT&T’s unopposed May 21 motion to stay the current briefing schedule in its appeal against Lane County, Oregon, to enable the parties to engage in further settlement talks (see 2405220001), said a clerk’s order Tuesday (docket 24-855). The previously established briefing schedule is vacated, and the appellate proceedings are stayed until Aug. 26, or until further order of the court, said the order. If no motion for further relief is filed before Aug. 26, the briefing schedule will be reset in a future order, it said. AT&T’s appeal contends that a U.S. magistrate judge, in granting summary judgment for Lane County, 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 (see 2402220046).

If the settlement process that AT&T and Lane County, Oregon, agreed to results in a “certain outcome,” AT&T would voluntarily dismiss its appeal, said in-house AT&T attorney Raymond Bolanos in a declaration Thursday (docket 24-855) in the 9th U.S. Circuit Appeals Court. His declaration was in support of AT&T’s unopposed motion to stay the current briefing schedule in its appeal against Lane County “to allow for the parties to engage in further settlement efforts” (see 2405220001). Under the parties’ agreed-upon procedure "for potentially resolving the appeal and avoiding the drafting and filing of appellate briefs," if the settlement process doesn’t result in a resolution of the case, the parties “would move to resume the appellate briefing schedule,” said Bolanos’ declaration. AT&T’s appeal contends that a U.S. magistrate judge, in granting summary judgment for Lane County, 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 (see 2402220046).

Oyster Bay Cove, New York, resident David Savetz will seek, through a forthcoming motion, to intervene to defend the village’s denial of AT&T's tower application (see 2212230054), his attorney, Andrew Campanelli, wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip Wednesday (docket 2:22-cv-07807). Savetz's home would be “adversely affected” by the carrier’s construction of the 85-foot tower “on the property immediately adjacent to his,” said Campanelli. “In addition to the adverse aesthetic and economic impacts, Savetz’s property would be well within the fall zone of the tower, would require the use of a drain located on his property, and would violate numerous provisions” of the village’s zoning code, wrote the attorney. District courts “have broad discretion in determining whether a motion to intervene is timely filed,” said the letter. Though AT&T filed its complaint against the village in December 2022, Savetz didn’t “have notice until recently that this action was pending,” the letter said. There would be no prejudice to the existing parties from Savetz’s intervention, it said. By contrast, Savetz will suffer "severe prejudice" if his motion is denied, it said. AT&T’s proposed tower “would create dramatic adverse aesthetic and economic impacts, would put his property at risk in the event of a structural failure, and would require AT&T to use a drain that is situated, at least in part, on Savetz’s property,” it said. Rule 24(a) requires an applicant for intervention “to possess an interest relating to the property or transaction that is the subject of the litigation,” said the letter. Savetz “clearly has a legally protectable property interest relating to the subject matter of this litigation,” it said. He has an individual property interest in protecting the village's denial of AT&T’s application, it said. He has demonstrated that AT&T’s proposed tower “would significantly decrease his property value, inflict substantial adverse visual impacts upon his home, and put his property in danger of being in the tower’s fall zone,” it said. Savetz was “actively involved at the proceedings” before the village and opposed AT&T’s tower on the record, it said. He also detailed his “particularized concerns,” and submitted supporting evidence, “which will be submitted with the proposed motion,” it said. If AT&T is permitted to install its proposed tower, Savetz “will suffer very real and substantial adverse impacts to his home and property rights -- all without having been afforded any opportunity to protect against the threat of this installation,” it said. None of the existing parties “will adequately represent Savetz’s individual interests,” said the letter. Oyster Bay Cove can’t place the interests of one homeowner over the residents of the entire village, it said. If the village, acting in the best interest of the entire community, were to resolve this case through a court-ordered settlement agreement, AT&T “might be permitted to install its tower, inflicting severe adverse impacts on Savetz,” it said: “Absent permission to intervene in this action, Savetz would be prohibited from challenging, or participating in, any court-ordered settlement agreement granting AT&T permission to build its tower.”

AT&T seeks the entry of an order from the 9th U.S. Circuit Appeals Court that stays the current briefing schedule in its appeal against Lane County, Oregon, “to allow for the parties to engage in further settlement efforts,” said its unopposed motion Tuesday (docket 24-855). Those settlement talks have been “fruitful to date,” said the motion. Under the existing briefing schedule, AT&T’s opening appellant brief in the appeal is due Friday, and Lane County’s answering brief, June 24. AT&T’s appeal contends that a U.S. magistrate judge, in granting summary judgment for Lane County, 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 (see 2402220046).

The district court properly held that federal law preempted Milwaukee’s denials of Verizon’s small-cell applications to bolster wireless coverage in the public pedestrian mall outside Fiserve Forum in time for the 2024 Republican National Convention, Verizon’s opening appellee brief said Friday (docket 24-1212) in the 7th U.S. Circuit Court of Appeals. Milwaukee’s Deer District, an intervenor-defendant in Verizon’s small-cells dispute with the city, is appealing the U.S. District Court for Eastern Wisconsin’s Jan. 29 decision and order requiring that the city issue Verizon its requested permits (see 2402120027). The district court held that substantial evidence didn’t support the city’s two timely raised reasons for the denials, said Verizon’s brief. Milwaukee’s untimely raised reason -- that the city had given up its permitting authority in a lease -- “was time-barred and meritless,” said the brief. Deer District doesn’t challenge the district court’s application of federal law, “which is a sufficient basis to affirm,” it said. Deer District, like the city, can’t defend the permit denials based on the city’s lease, which wasn’t a reason included in the city’s timely issued denial, it said. The challenges of Deer District to the district court’s interpretation of the city’s lease “also fail on the merits,” Verizon’s brief argues. The public pedestrian mall was a right of way (ROW) before the city leased it to the Wisconsin Center District, which subleased it to Deer District, it said. The lease didn’t alter the status of the pedestrian mall as a ROW, it said. The pedestrian mall is also a ROW under Wisconsin’s small-cell statute, which defines the term to include property that’s similar to a sidewalk, said Verizon’s brief. The public mall is designed for pedestrian use, “just like a sidewalk -- it is simply a very large sidewalk,” it said. The small-cell statute didn’t alter Deer District’s property rights, “and no question exists to certify to the Wisconsin Supreme Court,” it said. As the district court found, the city’s timely reasons for denying Verizon’s permit applications were “a mere pretext,” Verizon’s brief said. The city’s real reason was a desire to assist Deer District’s effort to force Verizon to pay more than $10 million to Deer District for an inferior solution to Verizon’s network coverage needs, it said. Following the district court’s ruling, the city issued the permits, and Verizon “has installed its small cell facilities, which are now operational,” said Verizon’s brief. Nothing that Deer District raises on appeal “provides any basis to declare Verizon’s permits invalid,” it said. This 7th Circuit “should affirm,” it said.

T-Mobile has several “overarching objections” to the May 7 report in which Ben Levitan, the new RF expert hired by Roswell, Georgia, concluded it would be “overkill” for T-Mobile to build a 108-foot cell tower to remedy a significant wireless coverage gap (see 2405080002), said Levitan’s memorandum Monday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia. It said T-Mobile is unaware “of the source of the cell phone coverage maps” Levitan used in his report and analysis. “This is odd, because these maps are the simulation maps created by T-Mobile themselves and used in their application to show their gap in 4G cell service in Roswell, and the simulation of the improvement that their proposed cell tower will bring,” said the memorandum. These maps have been “the key” to T-Mobile’s argument for the new cell tower since the dispute began in 2010, it said. Contrary to T-Mobile's argument that the report fails to cite the source of these maps, the proper citations are in the report, but even without a citation, the maps “should have been easily recognizable to T-Mobile,” it said. Levitan’s report found that T-Mobile’s concerns about a lack of cellphone service to a specific 0.9-square-mile area of Roswell, and the inability for residents in that area to have 911 service, are “unfounded,” said the memorandum. Levitan also found that 5G service is "ubiquitous throughout Roswell," it said: “As new generations of the cell phone networks are designed, they fully incorporate the functionality of previous generations, and as such, any 3G, 4G or LTE phone operating in a 5G network will work fine. This backward compatibility means that there is no need to update the 4G coverage in the gap area as it is fully covered by 5G.” T-Mobile’s lawsuit against Roswell for the city's denial of its cell tower application turned 14 years old on Monday.

T-Mobile’s new 108-foot cell tower proposed for Roswell, Georgia, likely won’t remedy the significant gap T-Mobile has in LTE service in the area, and so there’s “no technical justification” for the tower, said the preliminary engineering report Tuesday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia of Ben Levitan, the city’s new expert witness (see 2404230002). The court approved Levitan as the city’s substitute expert witness March 25 after its previous expert resigned unexpectedly March 2, citing stress from the assignment (see 2403110001). Levitan found that T-Mobile’s 4G/LTE service in Roswell would improve by only 2% if T-Mobile’s tower application is approved, leaving more than 52% of the area with no 4G/LTE service at all, said his report: “It is my opinion that this tower is unnecessary to solve the claimed problems T-Mobile is trying to fix." T-Mobile’s concerns about a lack of cellphone service to the specified 0.9-square-mile-area and the inability of residents in the area to have 911 service “are unfounded,” it said. If, however, T-Mobile's claims “are taken at face value” and the company wants to increase the number of people who can use T-Mobile’s service in the Roswell area, “there are numerous industry standard engineering options which will repair the gap with no additional equipment and spare T-Mobile the cost of a new 110-foot monopole cell tower,” it said. One option is small cells, said the report. The carrier “currently boasts 43,800 such cells providing coverage and capacity improvement to small pockets of weak service throughout the country,” it said. “As such, this discussion could lead to the city and T-Mobile agreeing on a solution that would likely be more favorable to T-Mobile in achieving their goals," and also satisfy the concerns of Roswell residents, it said. The proposed 110-foot facility is clearly "overkill" for fixing the claimed service gap, and it’s “cost-prohibitive to solve the problems claimed,” it said. T-Mobile’s responsive expert witness report is due June 19.

Verizon and Lavallette, New Jersey, agree that an in-person settlement conference “may facilitate resolution” of their small-cells dispute, said their joint status report Wednesday (docket 3:23-cv-23072) in U.S. District Court for New Jersey in Trenton. Verizon sued Lavallette and its council in December to challenge their “unreasonable and unsupported denial” of Verizon’s application for permit approval for the installation of five small cells within the borough’s public rights of way (see 2312140038). Verizon and Lavallette further agree that the in-person settlement conference should require the attendance of the parties, specifically the borough’s mayor and a Verizon representative “with full settlement authority," said the status report. The parties further agree that if a tentative agreement is reached at the settlement conference it will be subject to review and approval by the borough’s governing body, it said. The parties agree that an in-person settlement conference in the beginning or middle of August is feasible, it said.

The 9th U.S. Circuit Court of Appeals denied AT&T’s March 5 motion for reversal of the district court’s decision finding summary judgment in favor of Lane County, Oregon (see 2402190001), said Circuit Judges Mark Bennett, Ryan Nelson and Eric Miller in an order Friday (docket 24-855). The denial is without prejudice to AT&T’s raising the arguments in its opening brief, which is due May 24, said the order. Lane County’s answering brief is due June 24, and AT&T’s optional reply brief is due within 21 days after service of the answering brief, said the order. The carrier contends that the district court wrongly found it was obligated to appeal the county’s denial of its cell tower application to the Oregon Land Use Board of Appeal. The district court ruled that AT&T 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.