Verizon Sues to Force Milwaukee to OK Small Cells in Time for GOP Convention

Milwaukee and its public works commissioner, Jerrel Kruschke, unlawfully denied Verizon’s applications for permits to install small cells on newly constructed poles in the city’s Deer District, alleged Verizon’s complaint Friday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in Milwaukee.

The small-cell installations are generally needed to remedy existing coverage gaps in the Deer District, Milwaukee’s sports, dining and entertainment destination, said the complaint. But they're “especially” needed to prepare for the 2024 Republican National Convention, July 15-18 at the district’s Fiserv Forum, home of the NBA's Milwaukee Bucks and the NCAA's Marquette Golden Eagles, said the complaint.

The denials violate the Telecommunications Act because they weren’t based on “substantial evidence” in the record, and they constitute “effective prohibition” of personal wireless service, said the complaint. The denials also violate Wisconsin law because they were arbitrary, unreasonable, contrary to law and “unsupported by substantial evidence,” it said.

The GOP convention is expected to draw more than 50,000 people, including 4,500 law enforcement personnel, said the complaint. The expected influx of convention attendees and emergency service personnel “is likely to cause a significant strain on Verizon’s existing network without the proposed small cell installations,” it said.

As a “reference point,” when the Milwaukee Bucks competed in the 2021 NBA Championship series, Verizon’s network wasn’t “dense enough” in the area outside Fiserv Forum to “adequately support” the large number of devices accessing the Verizon network when fans gathered there for large watch parties, said the complaint. Even law enforcement and first responders with “priority access” experienced connectivity issues during the event, it said. Other devices without priority access “experienced text messaging delays and failures, and experienced reliability issues when placing voice calls,” it said.

The GOP convention “will create increased demand for wireless service in this area, which will also cause excess network traffic on the neighboring sites that provide coverage in the surrounding area,” said the complaint. These “significant service gaps” can be remedied by the installation of small cells in “precise locations,” it said.

For the past year, Verizon “has worked to identify locations that could accommodate small cells to prevent the identified service gap in Verizon’s wireless network” during the GOP convention, said the complaint. Verizon determined that four small cells are needed “to adequately address the network need,” it said.

Verizon initially proposed collocating the small cells on existing poles, but the city told Verizon that collocation wouldn’t be available and that any such permit applications would be denied, said the complaint. “Verizon then determined it had no choice but to construct new poles,” it said. It picked four locations based on “network need and engineering requirements,” and avoiding conflict with “existing underground utilities,” it said.

To make certain the poles and small cells are installed and operational ahead of the convention, Verizon must order the poles and other necessary equipment by Jan. 29, said the complaint. But because the poles are custom-made and can be used only for their specific Deer District locations, Verizon can’t order them until it has the required permits confirming that the city has approved them, it said. If the permits aren’t issued by Jan. 29, it’s “highly unlikely” the poles can be ordered, manufactured, delivered and installed in time “to serve their primary purpose,” it said.

The city had a 90-day shot clock that expired Nov. 1 under the TCA and Wisconsin law to approve or deny Verizon’s applications, supported by written evidence, said the complaint. The city approved one of the four applications in October, but denied the other three, it said. The denials are likely to result in service gaps in Verizon’s wireless network “at times of peak usage” during the convention “and other significant events in and around the Fiserv Forum and the Deer District," it said.

In its denials, the city cited no evidence showing how the proposed poles are too close to existing poles or how they would obstruct or hinder traffic, said the complaint. “No such evidence exists in the record,” it said.

Milwaukee likewise cited no evidence showing how the proposed poles are unsightly, out of character with other poles in the area or “otherwise aesthetically displeasing,” said the complaint. The poles “will match the existing poles in the Deer District,” it said. Such unexplained, unsupported aesthetic concerns don’t constitute “substantial evidence,” as the TCA and state law require, it said.

The city’s objections to the poles on aesthetic grounds “also are insufficient to support the denials,” said the complaint. Federal law limits how a local government “can regulate aesthetics,” it said. Under FCC rules, any municipal aesthetic requirements must be reasonable, objective and published in advance, it said.

Milwaukee hadn’t adopted in advance aesthetic requirements governing the deployment of small cells, much less rules that are objective and reasonable, said the complaint. The city’s choice to nevertheless deny the permit applications based on aesthetics constitutes an “effective prohibition” as a matter of law under the TCA and Wisconsin state law, it said.