Judge Orders Milwaukee to Issue Verizon Its Small-Cells Permits for GOP Convention

U.S. District Judge Brett Ludwig for Eastern Wisconsin in Milwaukee entered judgment for Verizon and against Milwaukee, ordering the city to issue Verizon its requested permits within seven days so it can begin ordering small cells and custom-designed poles for installation in time for July’s Republican National Convention at the Fiserv Forum, said the judge’s signed decision and order Monday (docket 2:23-cv-01581).

The judge “endeavored to provide a prompt decision given Verizon’s stated timing needs,” said the order. He acted on the last date that Verizon had said it needed court approval of the small-cells applications to be able to begin procuring the equipment needed for the installations in the public pedestrian mall outside the arena.

The credible evidence confirms that the city’s professed reasons for denying Verizon’s permit applications “were not supported by substantial evidence and were, in fact, a mere pretense,” said the decision and order. The judge finds that the city’s actual reason for denying the permits was to assist its sublessee, the Deer District, a private entity that prefers Verizon to use an alternate system distributed antenna system (DAS), which the Deer District and a “coventurer” are developing, it said.

Testimony confirms that if the permits are denied, Verizon “will have little choice but to pay a heavy sum,” including an initial payment of $10 million, to use the Deer District’s DAS, said the decision and order. The city’s “professed justifications” for denying the permits were “pretextual,” not supported by substantial evidence and in violation of both the Telecommunications Act and Wisconsin state law, it said.

The TCA’s substantial evidence standard, while “deferential,” doesn’t mean that municipal authorities “have carte blanche to deny permit applications or that their decisions will be affirmed so long as they cobble together a justification to support the denial,” said the decision and order. Substantial evidence “demands that the municipality provide a decision along with a supporting record sufficient to allow a reviewing court to identify the reason or reasons why the locality denied the application,” it said.

The 7th U.S. Circuit Court of Appeals “has analyzed the substantial evidence standard in the TCA context on three different occasions,” said the decision and order. It agreed once that a municipality’s decision “failed to satisfy the standard” and twice agreed that a locality “had done enough,” it said.

Milwaukee’s Oct. 26 denial of Verizon’s permit applications “is not supported by substantial evidence,” said the decision and order. The court is “cognizant of the deference” it must give the city’s decision, “even if inartfully drafted,” it said. Courts recognize that municipal workers aren’t trained “in the basics of legal writing,” and so a decision denying permits need not be elaborate or even sophisticated, it said. But the decision must describe the reasons for the denial and contain a sufficient explanation of those reasons to allow a reviewing court to evaluate the evidence in the record that supports those reasons, it said.

The city’s denial of Verizon’s permit applications “flunks this relatively minimal test,” said the decision and order. The justifications themselves are “meager,” and offer “no reasoning” and cite no evidence, it said. The city’s supporting record “is also sparse,” it said. The city’s effort to support its decision is “far below any of the records” discussed by the 7th Circuit, it said.

More “significant” is the lack of any written analysis connecting the city’s conclusions to evidence in the record, said the decision and order. Milwaukee didn’t give Verizon “even a basic explanation for the denials that was tied to anything in the record,” it said. That failure makes any judicial review “virtually impossible,” it said.

The two justifications the city gave for denying Verizon’s applications “are hard to square with the record,” said the decision and order. Its first reason, that the Verizon poles would be too close to existing poles, “makes little sense,” considering that the city previously granted Verizon’s permit applications for installations around the corner from the pedestrian mall, where the pole was just 1 foot farther away than the requested pole placement in the pedestrian mall, it said. The city’s second reason, denying the applications for the poor aesthetics of the poles, “is even worse,” it said.

The record confirms “one final critical failing” in Milwaukee’s Oct. 26 denials, said the decision and order. The justifications offered weren’t the real reasons city officials decided to deny Verizon’s applications, it said. The credible evidence confirms that the city denied the applications to assist the Deer District in gaining Verizon as a customer for the DAS project it was developing, it said.