Milwaukee District’s Appeal Seeks to Reverse Small-Cells Permit Awarded to Verizon

The district court erred as a matter of law when it decided that right of way as used in the Wisconsin statutes encompassed any property subject to an easement for public use, such that Verizon could, without Deer District’s consent, lawfully install small cells and utility poles in the pedestrian mall that Milwaukee leased to the Wisconsin Center District and was subleased to Deer District, said Deer District’s opening brief in its 7th U.S. Circuit Appeals Court appeal.

Deer District, an intervenor-defendant in Verizon’s small-cells dispute with Milwaukee, is seeking to reverse the district court’s Jan. 29 order requiring the city to issue the carrier its requested permits (see 2402120027). Verizon sought the permits to enable it to install the small cells and custom-designed poles it says it needs to remedy wireless coverage gaps in time for July’s Republican National Convention at the Fiserv Forum (see 2401300044).

The case “is about property rights,” specifically the right of a lessee to exercise its rights to its property under a lease and the right of a municipality to convey such rights to private parties, said Deer District’s brief. Under a directive from the Wisconsin legislature, the city leased the pedestrian mall and plaza adjacent to the Fiserv Forum to Deer District, “converting it into privately held property,” it said.

The appeal arises from Verizon’s attempts to access the plaza, said the brief. Verizon contends, and the district court held, that the plaza is a right of way under Wisconsin law, and therefore, the carrier “must be permitted” to access the plaza to install three large utility poles and “wireless service devices,” it said.

But Deer District contends that the district court incorrectly interpreted the statute’s definition of right of way and “ignored controlling provisions in the lease,” said the brief. The district court also misapplied case law “to take away Deer District’s rights to control improvements in and commercial use” of the plaza, and to strip municipalities “of any ability to convey public property,” it said. Deer District brings the appeal “because its rights under the lease and Wisconsin law have been violated,” it said.

The district court’s ruling “has serious implications for municipalities” across Wisconsin, said the brief. According to the district court, “any publicly accessible property is fair game for installation of small cells, and no government body may convey any such property because to do so violates the police powers doctrine,” it said.

When enacting its small-cell statute to specify the locations where and procedure by which small-cell deployment may take place, the Wisconsin legislature surely didn’t envision “it would open all publicly accessible property for utility development or that it would severely restrict, if not entirely eliminate, a municipality’s authority to convey property,” said the brief. The district court’s ruling must be reversed, it said.

The district court’s “superficial treatment” of the definition of right of way can’t stand, said the brief. The district court misapplied the definition’s “plain language,” it said. It also interpreted the statute to conflict with “another, more specific statute” that grants Deer District control of the plaza, it said. It also treated the definition “as merely adopting common law despite clear indication to the contrary,” and it “generally ignored applicable canons of construction,” it said.

The definition, properly construed, “applies only to a select set of rights-of-way” -- highways, sidewalks, utility easements and other similar property -- not all publicly accessible property, as the district court wrongly concluded, said the brief. In applying its “erroneous construction” of the statutory definition, the district Court read out of the lease provisions granting Deer District the right and obligation to control commercial development of the plaza, it said.

Those lease provisions should have otherwise prohibited Verizon from installing small cells in the plaza, said the brief. The lease “expressly reserves” to Deer District the right to control commercial use of the plaza and the right to improve the plaza, it said. The district court “ignored or contorted these provisions” to conclude that the city, not Deer District, held the right to permit improvements in the plaza, it said. No “reasonable reading” of the lease “allows for such a result,” it said.

While ample bases exist to reverse the district court’s decision, should the 7th Circuit “find itself uncertain” as to the definition of right of way, it should allow the Wisconsin Supreme Court to weigh in, said the brief: “This question ticks all the boxes for certification.”

The case involves “an as-of-yet unaddressed issue of Wisconsin law,” and it has significant implications for Wisconsinites, said the brief. This case “will determine which publicly accessible spaces will be subject to development by wireless providers,” it said. If the Wisconsin statute means what the district court interpreted it to mean, Deer District “has suffered an unconstitutional taking of its property” under black-letter U.S. Supreme Court precedent, it said.