Ore. County Urges Denial of AT&T Motion for Summary Judgment Over Tower Rejection

AT&T’s June 1 motion for summary judgment against Lane County, Oregon, fails to demonstrate it’s entitled to relief as a matter of law for the county’s denial of its application to build a 150-foot-tall cell tower with accompanying communications electronics (see 2210260009), said the county’s memorandum in opposition to the motion Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene. The county filed a motion for summary judgment against AT&T the same day (see 2306020025).

AT&T claims the county’s denial “amounted to an effective prohibition” of wireless services in violation of the Telecommunications Act. Its motion for summary judgment asked the court to order the county to approve the application and all other authorizations necessary for the construction and operation of the proposed tower.

But AT&T hasn’t “met its burden” of establishing that the county’s denial “has the effect of prohibiting AT&T from providing personal wireless services” in violation of the statute, said the county’s opposition memorandum. AT&T also didn’t provide evidence of any personal wireless service that’s “even impacted by the denial, let alone effectively prohibited by it,” it said.

Nor has AT&T made a prima facie case its preferred tower site “is the least intrusive means of addressing any service gap,” said the memorandum. AT&T failed as a matter of law to make its case under the “significant gap/least intrusive means” test, it said. That’s “the sole and controlling legal standard” in the 9th Circuit for reviewing AT&T’s claims, it said.

As the county “made clear” in its own motion for summary judgment, AT&T’s claims “rest on an interpretation” of the TCA’s Section 332 that’s “inconsistent” with two decades of 9th Circuit precedent, said the memorandum. AT&T instead asserts a new “wishes to provide” or “wishes to improve” standard under which a provider need not show any material impact on its personal wireless services -- the “defined term” in the TCA, it said.

AT&T thinks it can simply assert “there is some service it wishes to provide or improve that necessitates the new tower,” said the memorandum. Though AT&T argues the long-standing significant gap test still applies in addition to its “wishes to provide” standard, AT&T can’t “support the notion that there are now two competing standards” from which it or the court may choose, it said. Under the “controlling” significant gap test, AT&T’s claims “fail as a matter of law,” it said. The court should deny AT&T’s motion for summary judgment and grant the county’s, it said.