PITTSBURGH – AT&T has sued both the City of Pittsburgh and the Commonwealth of Pennsylvania, claiming both entities violated the Telecommunications Act of 1996, in their limiting of the company’s ability to place “small cell” wireless facilities on telephone poles in the City’s rights-of-way.
New Cingular Wireless PCS, LLC (doing business as “AT&T Mobility”) of King of Prussia filed suit in the U.S. District Court for the Western District of Pennsylvania on April 6 versus the defendants.
“AT&T has been attempting to place ‘small cell’ wireless facilities (i.e., small antennas and related equipment) on poles in the City’s rights-of-way, to provide and improve wireless services in the City,” the suit states.
“Federal law limits the ability of municipalities to block installation of such facilities, based on nationwide goals of promoting the widespread availability of advanced, reliable wireless services. The City has violated this federal law, and AT&T seeks declaratory and injunctive relief.”
The suit says that under the Telecommunications Act of 1996, municipalities must act upon applications to place wireless facilities within a “reasonable period of time” and that local regulations may not “prohibit or have the effect of prohibiting the ability” of a carrier to provide telecommunications services.
Furthermore, local regulation of the placement of wireless facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services”.
“In its 2018 Small Cell Order, the FCC clarified that in regard to small cell facilities, a ‘reasonable period of time’ is 60 days to process applications requesting collocations on existing structures, and 90 days to process all other applications. Accordingly, if state or local governments do not act upon applications within those timeframes, then a ‘failure to act’ has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v) of the TCA,” per the suit.
“Pursuant to the City Code, a right-of-way use (ROW) agreement is required to construct, operate or continue to operate a telecommunications system within the City’s public rights-of-way. However, nothing in the City Code requires an applicant to have an executed right-of-way use agreement in hand as a condition precedent for filing the initial application for a telecommunications system within the public rights-of-way.”
The suit adds that the City’s recurring fee for telecommunications installations ($850 per facility) exceeds the FCC’s presumptively reasonable recurring fee ($270 per facility) by nearly 215 percent, in violation of federal law, and the two sides have been unable to resolve this dispute.
“On Dec. 8, 2020, AT&T finalized submission of two pole permit applications through the City’s web-based filing portal known as ‘OneStopPGH’ and paid the required filing fees to the City. Both applications involved the swap-out of existing decorative light poles owned by the City with replacement poles of substantially similar design, the collocation of antennas at the top of each pole, and installation of radio equipment to be housed in equipment shrouds attached to the side of the poles,” the suit says.
“The Small Cell Order shot clock for the applications is 90 days. The shot clock on the applications has not been tolled, and it expired on March 8, 2021, with the City taking no action on the applications. AT&T is informed and believes that the City’s failure to act appropriately on the applications is based on AT&T’s refusal to sign the City’s ROW Agreement which mandates payment to the City of the above-stated inappropriate and illegal fees.”
For counts of unreasonable delay, shot clock violation and effective prohibition, the plaintiff is seeking various reliefs:
• A declaration and judgment that the City has violated the TCA by failing to act within a reasonable period of time on AT&T’s applications;
• For a declaration and judgment that the City has violated the TCA by effectively prohibiting AT&T from improving and providing personal wireless services and telecommunications services;
• For an order in mandamus or an injunction mandating that the City grant forthwith AT&T’s applications and immediately issue all permits and all other authorizations necessary for the construction of the proposed facilities;
• For an order in mandamus or an injunction prohibiting the City from charging excessive, unreasonable and illegal fees in violation of federal law;
• For an award of AT&T’s costs of suit herein and;
• For such other and further relief as the Court may deem just and proper, including retaining jurisdiction over this matter to ensure compliance with any order that the Court may issue.
The plaintiff is represented by Christopher H. Schubert and Michael T. Shiring of Riley Riper Hollin & Colagreco in Exton, plus Raymond Bolaños of AT&T’s Legal Department, in San Francisco, Calif.
The defendants are represented by Michael E. Kennedy and Yvonne Schlosberg Hilton, of the City of Pittsburgh’s Law Department.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00443
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com