AT&T Failed to ‘Exhaust’ Local Remedies to Build Cell Tower: Lane County

Lane County, Oregon, “denies every allegation” in AT&T’s Oct. 25 complaint that it violated the Telecommunications Act by refusing AT&T’s application to build a 150-foot-tall cell tower to improve local wireless services (see 2210260009), said the municipality in its answer Wednesday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene. U.S. Magistrate Judge Mustafa Kasubhai set a Rule 16 telephone conference in the case for Dec. 13 at 10 a.m. PST, said a text-only scheduling order Thursday.

AT&T is seeking “redress” from the court before “being affected by a final action by the local government,” said Lane County. It has failed to “exhaust” its “administrative remedies” under local, Oregon and federal law, it said. AT&T wants to build the tower on a 40-by-40-foot fenced lease area on a five-acre parcel of land but did not properly appeal the denial of its application to the Oregon Land Use Board of Appeals, the county said.

The board “has exclusive jurisdiction to review any land use decision of a local government,” said the county. A land use decision “includes a final decision or determination made by a local government that concerns the adoption, amendment or application of a land use regulation,” it said. The board will review the land use decision involving rejection of AT&T’s tower application and will “prepare a final order affirming, reversing or remanding the land use decision,” it said.

AT&T is “barred” from seeking relief from the court because of its failure to appeal the denial to the Oregon board, said the county. The county denied AT&T’s application after a public hearing, an open record period, and a comment and response period, said AT&T’s complaint. The municipality found the facility would be within 1,200 feet of at least 11 dwellings, and not all those property owners consented to the “encroachment,” as is required under local law, it said.

The county rejected AT&T’s argument that enforcement of the 1,200-foot setback “constituted an unlawful effective prohibition of service under federal law,” said its complaint. AT&T sought reconsideration but again was denied approval, it said.

Meanwhile, an “early neutral evaluation” session Wednesday between AT&T and Pittsburgh officials failed to resolve their dispute over AT&T’s attempts to place small cell wireless facilities on poles in the city’s rights of way, said a report (docket 2:21-cv-00443) to the U.S. District Court for Western Pennsylvania. AT&T sued Pittsburgh in April 2021 to prevent the city from charging what it alleged were unlawfully high recurring fees to build the facilities.