Ore. County Seeks Summary Judgment Against AT&T’s Cell Tower Complaint
Lane County in western Oregon seeks summary judgment against AT&T’s Oct. 25 complaint alleging the county violated the Telecommunications Act by denying its application to build a 150-foot-tall cell tower with accompanying communications electronics (see 2210260009), said the county’s memorandum of law in support of its motion Thursday (docket 6:22-cv-01635) in U.S. District Court for Oregon in Eugene. The parties “made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so,” it said.
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AT&T is barred from “seeking redress” from the Eugene court because it failed to file an appeal with the Oregon Land Use Board of Appeals, said the county’s memorandum. Contrary to AT&T’s assertions, Lane County hasn’t “effectively prohibited” AT&T from providing personal wireless services or telecommunications services under the TCA, it said. The county requests oral argument on its motion, it said.
AT&T’s proposed cell tower is “inconsistent” with the county code, said the memorandum. AT&T also hasn’t established a “significant gap in coverage” or that its proposed tower “is the least intrusive means to close any gap,” it said.
Rather than make this showing as required under longstanding 9th Circuit precedent, AT&T asks this court to apply a different standard written by the FCC to address a different type of facility -- “backpack-sized small wireless facilities placed on poles within the public rights of way,” said the memorandum. AT&T’s position contradicts that 9th Circuit precedent, plus that of five other circuits, it said. AT&T “would essentially preclude local governments from ever denying applications to construct new wireless towers, a right unquestionably preserved” by the TCA, it said.
But the court “need not reach this issue” because there's no final action on which AT&T can invoke the judicial review process in the TCA, said the memorandum. AT&T “failed to follow the two-step administrative review process required in the state of Oregon,” it said. Local land use decisions, such as the decision challenged by AT&T, must be administratively reviewed by the Oregon Land Use Board of Appeals before this court can undertake judicial review. The TCA doesn’t preempt Oregon’s “statewide land use planning system,” it said. AT&T can’t “bypass” the state’s process by seeking redress from this court “without completing the two-step administrative review process,” it said.
There’s “conflicting evidence in the record” about whether a significant gap in wireless coverage exists, said the memorandum. Lane County authorities didn’t make a final determination on the issue “because AT&T failed to carry its burden on the least intrusive means standard,” it said. If the court decides the significant gap question should be addressed, “AT&T has failed to meet its burden of establishing a gap, let alone a significant gap,” it said. Lane County thus “is entitled to summary judgment on this issue,” it said. In the alternative, Lane County asks the court to remand the issue to county officials for a determination, it said.