PITTSBURGH – A federal judge has administratively closed litigation from AT&T against the City of Pittsburgh and the Commonwealth of Pennsylvania, which asserted that the defendants violated the Telecommunications Act of 1996 by limiting the company’s ability to place 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 first filed suit in the U.S. District Court for the Western District of Pennsylvania on April 6, 2021 versus the City and the Commonwealth.
“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 stated.
“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 said that under the TCA, 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 added 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 said.
“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.”
The City filed a motion to dismiss the complaint on July 21, 2021, arguing that the application was not filed in good faith.
“AT&T files the instant action with unclean hands – its own application materials are unfiled and its replacement Telecommunications Pole Application Fees unpaid. Consequently, plaintiff’s action does not arise under a federal question because unfiled and unpaid applications do not invoke 47 U.S.C. Section 332(c)(7) or 47 U.S.C. Section 253. In the absence of due filing and payment requiring defendant to act, plaintiff has not been ‘adversely affected…[by] failure to act’ under 47 U.S.C. Section 332(c)(7)(B)(v),” the answer stated.
“Plaintiff has not suffered a concrete and particularized injury – its harms are hypothetical. Unpaid application fees cannot invoke 47 U.S.C. Section 253 or satisfy legal requirements of the City Code. ‘Under Article III, federal courts do not adjudicate hypothetical or abstract disputes…federal courts do not issue advisory opinions.’ Unfiled and unpaid applications for Small Wireless Facilities are not ripe for judicial resolution.”
However, U.S. District Court for the Western District of Pennsylvania Judge Christy Criswell Wiegand ordered that the City of Pittsburgh’s dismissal motion would be denied without prejudice, on Jan. 5.
Subsequent to Wiegand’s January ruling, the City of Pittsburgh and Commonwealth of Pennsylvania filed a renewed motion to dismiss on March 30, but Wiegand threw out the defendants’ renewed dismissal motion in a memorandum opinion issued on Aug. 15.
In an Aug. 29 answer to an amended version of the complaint, the defendants denied the substantive majority of the plaintiff’s allegations and added that unpaid and incomplete submitted applications should deem the plaintiff’s claims invalid.
“The court does not have subject-matter jurisdiction over the claims because plaintiff’s unpaid and incomplete applications to place, construct, and operate two new small wireless facilities and wireless support structures at 6401 Penn Avenue and 151 Bakery Square Boulevard, located in defendant’s public right-of-way, were not ‘duly-filed’ with defendant and, therefore, do not trigger the Telecommunications Act of 1996, 47 U.S.C. Sections 151, et seq.,” the answer’s defenses stated.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted because each of plaintiff’s four claims for relief requires the essential element of payment-in-full of the City’s uncontested, up-front application fees. However, plaintiff did not make payment-in-full of the City’s uncontested, up-front application fees: $500 for a new telecommunications antenna (i.e., collocation) or (2) $1,000 for non-recurring fees for a new pole (i.e., not a collocation). Even when accepting as true the amended complaint’s factual allegations, and viewing them in the light most favorable to the plaintiff, plaintiff’s amended complaint fails to satisfy the essential elements of fully paid, submitted, and ‘duly- filed’ requests for authorization to the City.”
The defendants further argued that the statute of limitations should bar the plaintiff’s relief.
“Plaintiff’s claims fail to satisfy the applicable statute of limitations. The TCA provides that ‘any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this sub-paragraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.’. The TCA statute of limitations has expired on plaintiff’s claims originating from its Oct. 5, 2021 submission date. Plaintiff’s submission on Oct. 5, 2020 triggered the Shot Clock. First, plaintiff pleads that, ‘on Oct. 5, 2020, AT&T through its authorized agent, Katelyn McKinley, submitted applications for two small cells through the OneStopPGH web portal,” the defenses continued.
“Second, AT&T considered Oct. 5, 2020 to be the date of submission; internal emails reveal, ‘NB+C submitted applications for the [Two New Poles and Small Wireless Antennae] on Oct. 5th, 2020;’ and, ‘NB+C submitted two applications on Oct. 5, 2020…As of today [March 25, 2021], 171 days have passed.’ Third, OneStopPGH registered Oct. 5, 2020 as the ‘Application Date.’ According to these calculations, tolling from the day after Oct. 5, 2020, the 90-day application review period ended on Jan. 3, 2021, and the 30-day TCA statute of limitations expired on Feb. 2, 2021. Plaintiff’s instant action on April 7, 2021, therefore, is untimely.”
UPDATE
A joint status report from the parties on Jan. 18 indicated that the parties are willing to work together in commissioning a new study by which the City’s cost-based right-of-way management fees could be established and applied prospectively.
Given the time involved with such a move, roughly six to nine months by the parties’ estimation, they requested the case be administratively closed until Sept. 15 or further order from the Court. Upon reading the status report, Wiegand agreed and deemed the case to be closed for the time being.
“The parties represent in their joint status report that those fees are based, in part, upon cost studies commissioned by the City. Following a mediation and further meetings to confer, the parties have agreed to a framework through which the City would commission a new cost study, which could resolve this case. The parties ask the Court to administratively close the case while this process proceeds. In light of the parties’ stipulation, it is hereby ordered that this case shall be administratively closed pending further order of this Court. It is further ordered that the parties shall provide the Court periodic updates on their progress via joint status reports. The first such report shall be due on or before March 19. The Court will set the next joint status report deadline upon receiving the joint status report on March 19,” Wiegand said.
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 Krysia Kubiak of the City of Pittsburgh’s Law Department and Daniel Cohen, Joel Winston and Michael Roberts of Cohen Law Group, all in Pittsburgh.
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