Milwaukee’s Small-Cell Denials Violate Federal, State Law, Argues Verizon

Milwaukee agrees with Verizon that the crowds expected in the Deer District for the 2024 Republican National Convention in July “will cause significant wireless service gaps and serious public safety risks,” said Verizon’s reply brief Monday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in Milwaukee. The brief is in support of Verizon's motion for a preliminary injunction to force the city’s approval of permits for the installation of poles and small cells outside the Fiserv Forum (see 2312050022).

Milwaukee doesn’t dispute that Verizon’s proposed poles and small cells “would address those gaps and risks,” said the brief. The city also submits no evidence “to contest Verizon’s showing” that permits are necessary by Jan. 29, it said. Verizon has given that date as its last possible deadline for ordering the custom-made poles and other necessary equipment to be sure the poles and small cells are installed and operational ahead of the convention (see 2311270034).

Verizon previously established that the city’s denials of its permit applications “are unsupported by substantial evidence and contrary to state and federal law,” said the brief. On those points, the city “barely puts up a fight,” it said. Nor does the city, in any meaningful way, “rebut Verizon’s arguments on the equitable factors” supporting a preliminary injunction, it said: “This should be the beginning and the end of the matter.”

For most of its Dec. 26 response in opposition to the injunction (see 2312270003), the city “diverts attention” to a legal theory it first espoused in November, said the brief. Based on a lease between the city and the Wisconsin Center District, the theory goes, the city “actually has no permitting authority in the first instance,” it said. The city instead “abdicated its authority and transferred it to a private entity,” it said.

But the city’s argument “is wrong twice over,” said the brief. First, the language of the lease itself “accomplishes nothing” that the city claims, it said. Second, if the lease did “wrest permitting authority” from the city, then that arrangement “would itself run afoul of state and federal law,” it said. The court should grant “preliminary or final relief” by Jan. 29, it said.

Verizon is “clearly likely to succeed” in showing that the city’s denials violate federal and state law, and so the requested injunctive relief is warranted, said the brief. The city denied Verizon’s permit applications “for reasons unsupported by substantial evidence and contrary to law,” it said. The city’s main defense -- that it leased away its statutory obligation to review and approve small-cell permit applications -- “lacks any merit,” it said.

The city’s permit application denials “are based on errors of state law,” said the brief. The denials also constitute an “effective prohibition” of wireless services, in violation of the Telecommunications Act, it said.

Milwaukee “argues under the wrong standard,” said the brief. In 2003, the 7th U.S. Circuit Court of Appeals interpreted the TCA’s statutory effective prohibition language in VoiceStream Minneapolis v. St. Croix County. That case “supplies the standard” on which the city “builds its entire argument,” it said.

But the FCC’s 2018 “removing barriers” order adopted “a different interpretation” of effective prohibition under the TCA, said the brief. Because the FCC has congressional authority to interpret the TCA, “its later-in-time interpretation controls,” it said. The FCC’s order “explicitly rejected” the 7th Circuit’s “cramped reading of the statutory language,” it said.

The city doesn’t “develop any response” to Verizon’s argument “under the correct 2018 standard,” said the brief. Nor does it respond at all to Verizon’s argument about “an unlawful minimum-spacing requirement,” it said. Verizon’s effective-prohibition argument “thus emerges entirely unscathed,” it said.

Neither the city’s Nov. 10 letter, nor the reasoning within it, “can rescue the unlawful denials” of Verizon’s permit applications, said the brief. The letter marked the first time the city argued that the lease precluded it from granting permits, it said. But the letter came after the city’s Oct. 26 denials, and is therefore “not part of the municipal record” on which the city can rely, it said.

Not only is the theory the letter espouses untimely, but it’s “also wrong,” said the brief. Contrary to the city’s claim, the lease doesn’t purport to “bargain away” the city’s duties “or Verizon’s rights with respect to small cells,” it said. If it did, it would “contravene applicable law,” it said.