Milwaukee Can’t OK Verizon Small Cells for Land It Doesn’t Control, Says Opposition

The U.S. District Court for Eastern Wisconsin in Milwaukee should deny Verizon’s motion for “the extraordinary remedy” of an immediate injunction ordering the city to permit Verizon to install three poles to host small wireless facilities on leased property, said the city’s opposition brief Tuesday (docket 2:23-cv-01581). Deer District LLC (see 2312050022), an entity affiliated with the Milwaukee Bucks, controls the property.

Verizon contends it needs the small cells to handle the surge in wireless traffic accompanying the Republican National Convention, July 15-18 at the district’s Fiserv Forum, home of the NBA's Bucks. That dense packing of people and wireless usage, in the absence of the planned network upgrades, will likely cause dropped and blocked calls, diminished call quality, messaging failures and slow data, it said.

Milwaukee and Verizon have cooperated on Verizon’s deployment of small cells since 2016, said the city’s opposition brief. During that time, the city has approved the installation of 216 Verizon small cell poles and 359 other small-cell poles installed by other providers, it said. Milwaukee has approved Verizon’s deployments in the rights-of-way that the city controls, it said.

But here, Verizon is trying to force Milwaukee to allow Verizon to install poles on property that the city doesn’t control, “except for limited circumstances,” said the brief. It’s Milwaukee’s understanding that the Deer District, through the control it exercises under its lease agreement, has developed a distributed antenna system to host the placement of small cells “in and around” the public plaza next to the Fiserv Forum, it said.

The DAS “provides an alternative to third-party small cell pole installations,” such as Verizon’s, said the brief. The city understands that at least one of Verizon’s competitors is using the DAS to meet its coverage needs in the area around the public plaza, it said.

The court’s consideration of Verizon’s motion for a preliminary injunction should be deferred until Verizon joins Deer District LLC, an indispensable party under Rule 19(a) of the Federal Rules of Civil Procedure, said the brief. It’s Deer District LLC’s position that the city doesn’t have the authority to issue small-cell permits for lands it doesn’t control, it said.