Reject AT&T Protests That Tower Denial Was Not Timely: Monroe County

The U.S. District Court for Southern Illinois in East St. Louis should reject AT&T’s Nov. 18 second motion for summary judgment to vacate the Monroe County, Illinois, denial of AT&T’s application to build a 155-foot-tall cell tower because AT&T’s timeliness arguments aren't valid, said the municipality’s opposition Monday (docket 3:20-cv-01327).

After being “rebuffed” by the court in its first request for summary judgment, AT&T filed a second request for summary judgment on the theory that Monroe County’s boards of commissioners and zoning appeals “took too long in rendering their decision” on AT&T’s application, said the opposition. AT&T’s second motion for summary judgment “is as fatally flawed as its first motion and should be denied,” the municipality said.

AT&T alleged in its first amended complaint Oct. 14 that Monroe County’s denial of its cell tower application to remedy significant service deficiencies violated the Telecommunications Act’s preemptions against state and local actions that prohibit wireless services. The municipality also violated the statute’s requirement that state and local denials of wireless services be supported by substantial evidence contained in a written record, said AT&T's complaint. The carrier’s second motion for summary judgment alleged the county’s “protracted review” of its application violated the “timeliness requirements” of the Illinois Counties Code.

But the issue of the timeliness of the boards’ decision was “waived” by the conduct of AT&T itself, and should be rejected in weighing the carrier’s second request for summary judgment, said the county boards’ opposition. “That this is so is demonstrated by how late the Plaintiff seeks to even raise the issue of timeliness in this case,” it said. AT&T alleges for the first time in its motion for summary judgment that the county’s decision on its application wasn't timely, it said. This issue was certainly known to AT&T throughout these proceedings, which date back two years, it said.

The irony “should not be overlooked” that AT&T, which “does not want to be penalized for waiting so long to raise an issue, nonetheless seeks to penalize” the county boards “for failing to take action within the 75-day window set out in the referenced Illinois statutes,” said their opposition. “Even disregarding the inconsistency of that position,” AT&T has engaged in conduct that “demonstrates it never intended to rely on the 75-day time limit, and by its conduct has waived any right it may have had to insist on strict compliance,” it said. It would be “manifestly unjust to impose this strict deadline” on the county, it said.

AT&T’s pre-litigation conduct also demonstrates “conclusively that it never intended to rely on the 75-day limit it now seeks to impose” on the county, said the opposition. It’s clear from a review of the email communications between AT&T and the county that AT&T “acquiesced to the process extending well beyond the 75-day limit,” it said. If AT&T "intended to rely on the 75-day deadline it would not (and should not) have agreed to the hearing schedule that was ultimately used,” it said. “When a party engages in conduct that is inconsistent with strict compliance, that party may not later complain that strict compliance was not tendered.”