Milwaukee's Deer District: Verizon’s Small-Cells Permit for GOP Convention Invalid,

Verizon would have the 7th U.S. Circuit Appeals Court “create new law, significantly expanding the reach" of the Telecommunications Act to install small cells on privately leased property outside Milwaukee’s Fiserv Forum in time for the July 15-18 Republican National Convention, said Milwaukee’s Deer District, an intervenor-defendant in Verizon’s small-cells dispute with the city, in a reply brief Friday (docket 24-1212).

Deer District, which controls the pedestrian plaza outside the arena where Verizon asked to install small cells and specially designed utility poles to serve the GOP convention’s wireless needs, seeks to reverse a district judge’s Jan. 29 decision and order requiring the city to issue Verizon its requested permits (see 2402120027). The district’s appeal appears aimed at preserving its future property rights as it seeks to have Verizon’s small-cells permit ruled as invalid. The small cells that Verizon installed under that permit are already “operational,” Verizon said May 17 (see 2405200052).

Under Verizon’s theory of the law, the TCA “trumps property rights held by private entities,” said the district’s reply brief. Verizon asks this of the 7th Circuit “without providing any support for its position,” it said. The 7th Circuit “should reject Verizon’s transparent attempt to sidestep the merits of this appeal with which Verizon engages only partially,” it said. The state-controlled Wisconsin Center District (WCD) leases the land encompassing the pedestrian plaza from the city, and the WCD subleases that land to the Deer District.

Verizon assumes the pedestrian mall is a right of way and that the definition of ROW in the Wisconsin statutes “means nothing more than an area open to the public,” said the district’s reply brief. The 7th Circuit “must not fall for Verizon’s attempts to assume away the issues in this appeal by adopting an overly simplistic view of them,” it said.

Wisconsin law authorizes small-cell installations in certain, but not all, common law ROWs, said the reply brief. The plaza outside the arena “is a common law right-of-way,” it said. But under the terms of the lease, it’s not a ROW as defined by state law, it said. For the reasons articulated in the district’s opening brief, the 7th Circuit should reverse the district court and find that Verizon’s permits are invalid as issued in violation of Wisconsin law, it said.

Verizon makes a number of arguments in support of the district court’s decision, said the reply brief. It argues that the district’s 7th Circuit appeal is precluded by the district court’s finding that the city violated the TCA, it said. According to Verizon, that violation can erase the district’s rights under the lease, it said. But Verizon is wrong, it said. The city’s TCA violations “have no impact” on the district’s “private property rights,” it said.

Verizon also argues that the district court properly interpreted the lease, and that the district didn’t, and that the district has no right to control commercial activity or improvement of the pedestrian plaza, said the reply brief. But the district court’s interpretation ignores lease terms that “clearly convey” the district’s control of the plaza, it said.

Verizon also argues that the plaza fits the definition of ROW in state law because it’s similar to a sidewalk in that pedestrians use the plaza, said the reply brief. But pedestrians use many other places that can't “reasonably be deemed a right-of-way for purposes of small cell installation,” it said. Verizon also ignores “glaring differences” between the plaza and a sidewalk, and that the district holds “a leasehold interest” in the plaza, it said.