Wireless Infrastructure Litigation Persists After 2018 FCC Order

Multiple infrastructure lawsuits by wireless companies against local governments rose to federal appeals courts in recent months. Meanwhile, across the U.S., industry continues to litigate against some localities in district courts while settling with others. Local governments had warned that the FCC’s 2018 small-cells order, preempting aspects of local reviews, would cause more litigation, “and I think it did,” said former NATOA General Counsel Nancy Werner.

AT&T last month sought review by the 9th U.S. Circuit Court of Appeals of a district court’s Aug. 22 dismissal of the carrier’s lawsuit against Los Altos, California (case 22-16432). The city rejected AT&T and Verizon applications to install small-cell wireless facilities under a 2019 local law. The district court ruled in August that the carriers’ subsequent lawsuit was moot because the city replaced the 2019 law this year. AT&T's opening brief is due Nov. 22, with Los Altos' answer due Dec. 22. Also at the 9th Circuit is an appeal (case 22-16153) by Verizon of a lower court granting summary judgment to Carmel-by-the-Sea, California, in a dispute about a denied wireless facility application. Verizon's brief is due Nov. 2 and the city must answer by Dec. 2.

Pasadena, Texas, must file a brief at the 5th Circuit by Oct. 26 in its appeal in Crown Castle v. Pasadena (case 22-20454). The U.S. District Court in Houston on Aug. 2 agreed with the wireless infrastructure company that the city violated 1996 Telecom Act Section 253(a) by impossibly requiring a distributed antenna system (DAS) to be buried underground and spaced in a limiting way. The court disagreed that those are allowed aesthetic requirements. The district court on Sept. 26 stayed its injunction pending appeal; Crown Castle sought reconsideration and opposed the stay in Oct. 3 filings.

ExteNet last week took back a challenge in the 2nd U.S. Circuit Court of Appeals (see 2210110011). The 5G infrastructure company had challenged a district court’s July 29 ruling that granted summary judgment to Flower Hill, a village on New York’s Long Island (case 22-1764). The lower court agreed with Flower Hill that it could deny an application for 5G infrastructure where 4G coverage already existed.

Many ongoing local disputes over deployment delays -- despite the 9th Circuit affirming the FCC’s 2018 small-cells order -- might show a need for Congress to take more actions to streamline deployment and provide greater clarity on what’s preempted, said Free State Foundation President Randolph May. The court in Flower Hill took a “cramped” reading of what's preempted, he said. Even the settled case Crown Castle v. Hempstead took an “awful long time to get to a resolution,” noted the former FCC assistant general counsel: A high volume of lengthy litigation probably isn’t “the outcome that the FCC envisioned in adopting the [2018] order.”

“You’re always going to have litigation following a change of rules because people are trying to figure out what the rules are,” Best Best’s Gerard Lederer said. “One of the real problems is that the commission’s order [went] too far and communities are willing to risk litigation … if they can’t get what they need.” For the most part, however, localities and industry are working things out, stressed the local government attorney. “There are tens of thousands of permits that are being issued every day for small-cells deployments,” while “a handful … have resulted in litigation.”

“The small-cell issue was way overhyped by industry,” said Werner in an interview at NATOA’s August conference, before she joined the Bradley law firm as partner. There was a big 5G push that “just kind of died out,” she said. However, NATOA remains concerned about the FCC’s 2018 small cells order requiring cost-based fees, she said. “There are definitely cities still dealing with a lot of small-cell applications and trying to struggle through those processes with the restrictions that the FCC has put in place.” Fees are “ripe for litigation” because it’s so tough “to reach agreement on what the costs really are in a particular community,” said Werner.

Court Fights, Settlements

AT&T sought summary judgment in a Friday motion in its suit against Corinth, New York. The defendant has to file a cross-motion for summary judgment by Nov. 14 at U.S. District Court in Albany (case 1:21-cv-149). Motions are due Feb. 16 in a Verizon complaint against Southwick, Massachusetts, at U.S. District Court in Springfield.

“There is a large and undisputed gap in reliable wireless services in and around [Corinth] that threatens public safety and requires immediate resolution,” AT&T said in Friday’s motion. Although the town and its RF engineer see the gap and admit “there are no viable alternative locations suited to address this deficiency,” they denied the carrier’s application to install a wireless facility in violation of the Telecom Act, AT&T said.

Verizon, ExteNet and Crown Castle challenges to small-cell fees in Rochester, New York, are going to trial after the U.S. District Court in Rochester on Aug. 22 denied summary judgment motions by each industry plaintiff and the city (cases 6:19-cv-06583, 6:20-cv-06866 and 6:20-CV-07129). Whether the city’s fees reasonably approximate the city’s costs is a factual question that can’t be instantly resolved, said Chief Judge Elizabeth Wolford. The U.S. District Court in Baltimore on Dec. 7 last year declined to dismiss Crown Castle’s complaint against Ocean City, Maryland (case 1:21-cv-018120).

Other ongoing wireless infrastructure cases include AT&T v. Pittsburgh at U.S. District Court in Pittsburgh on whether the city effectively prohibited small cells by charging $850 annually for each facility in the right of way (ROW) even though the FCC set a $270 cap in its 2018 small-cells order (case 2:21-cv-00443). Dispositive motions are due April 24, with a hearing on them to be held June 14, in AT&T v. Heath at U.S. District Court in Springfield, Massachusetts (case 3:21-cv-30106). The U.S. District Court in Central Islip, New York, scheduled summary judgment motions for Oct. 31 in Crown Castle v. Oyster Bay (case 2:21-cv-6305).

Industry and local governments settled other cases in recent months. Verizon on Sept. 26 voluntarily dismissed a complaint against Fresno at the federal district court in that California city (case 1:22-cv-00807). In August, Crown Castle settled its 2017 lawsuit against Hempstead, New York, at the U.S. District Court for Eastern New York (case 2:17-cv-03148). In January, Verizon and Hudson, New York, reached a settlement at the U.S. District Court in Binghamton (case 1:2021-cv-00774).

Settlement terms are due Thursday in Crown Castle v. Riverhead at the district court in Central Islip (docket 2:21-cv-00789). Verizon told a judge July 29 that it was exploring a settlement with Saugerties, New York, in case 1:22-cv-00107 at U.S. District Court in Albany. Another federal court ordered Verizon and Valdosta, Georgia, to say by Dec. 15 whether they had resolved remaining issues in case 7:2020-cv-00050 after the court on Dec. 6 partly granted the city’s motion for summary judgment.

Results that fail to go industry’s way may complicate its deployments elsewhere, said Lederer. For example, the Flower Hill decision was “an interesting shot across the bow as to what the FCC’s order really stands for,” coverage or capacity, he said. Five-year legal fights like Hempstead, or the Rochester case going to trial, don’t “bode well” for an industry seeking to quickly deploy facilities, noted the attorney. “Nobody’s getting a permit while the litigation is ongoing.”