AT&T Tests Illinois Small-Cells Shot Clock
At a federal court’s prompting, AT&T invoked the deemed-granted provision of the Illinois small-cells law in a wireless infrastructure dispute with Monroe County. The U.S. District Court in East St. Louis, Illinois, last month declined to give AT&T summary judgment on other state law and Telecom Act violations alleged against Monroe County (case 3:20-CV-1327-NJR). But the court asked AT&T to amend its complaint to raise a shot-clock issue the carrier had raised too late in the process.
Across the U.S., the wireless industry continues to litigate against some localities while settling with others over denied small-cell applications (see 2210070046). The Illinois small-cells law says an application is deemed granted if the county fails to act on it within 75 days, AT&T said Friday in its amended complaint in the Monroe County case. The first hearing on AT&T's application happened Nov. 4, 2019, which was 206 days after AT&T's April 12, 2019, application, said the carrier. The county didn’t decide the application that day or at a second hearing on Aug. 3, 2020, which was 478 days after the application was filed, the carrier said.
"Because the county board failed to act on AT&T’s application within 75 days after submission, AT&T’s application should have been deemed approved by Defendants,” the telco said. "AT&T is entitled to relief approving AT&T’s application and ordering the Zoning Board to approve other permits required to install, operate, and maintain the Facility.” AT&T seeks an order declaring that the county's "actions and/or inaction violates the timing requirements set forth in 55 ILCS 5/5-12001.1,” it said.
Monroe County argued its zoning ordinance blocked AT&T from installing a tower since the carrier would have a storage facility on the site. The county's law says that no public office or principal repair or storage facilities may be maintained in connection with the site.
"Substantial evidence supported the denial,” Judge Nancy Rosenstengel wrote in a Sept. 30 decision. The county board “explained its rationale with sufficient specificity regarding how and why it concluded the way it did -- primarily, violation of a local ordinance,” she said. The court won’t "perform an in-depth analysis" of the zoning authority's interpretation of the local law, said Rosenstengel. “Under a reasonableness standard, Defendants provide ample support for their interpretation, and their construction of the Ordinance does not run afoul of the typical canons of statutory construction.” AT&T's reading of state law “would completely eliminate any power or discretion a county has in approving or denying location of cell towers or facilities that meet these size and general structural requirements," which is an "absurd result,” the judge added.
"AT&T's [initial] complaint did not allege specific facts supporting improper timing,” said Rosenstengel. However, the judge signaled that she would consider the shot-clock argument if properly raised. “While the introduction of a new factual or legal theory at such a late stage of the case may create delay or expense, here, the new theory should not require additional discovery and would not cause Defendants undue burden to defend.”
Small-cell litigation is “very active,” said Telecom Law Firm’s Michael Johnston on a NATOA webinar Monday. “District courts and different circuits are taking different approaches. … There aren't any big cases out there that are broadly applicable to all jurisdictions." New York state has the most published cases, but there remains uncertainty in that jurisdiction about what standards apply, said Johnston: The local government attorney sees less litigation in states that enacted small-cells laws since “they’re pretty straightforward.”