The 5th U.S. Circuit Appeals Court granted appellee Crown Castle’s motion to supplement the record in the Pasadena, Texas, appeal to reverse the lower court’s granting of summary judgment in Crown Castle’s favor in their long-running infrastructure dispute. U.S. Circuit Judge James Dennis signed the order Wednesday (docket 22-20454). Crown Castle argued successfully, with no Pasadena opposition, to supplement the case with four documents pertinent to the district court’s granting of Pasadena’s motion for a stay in the case pending the appeal’s outcome (see 2303090034). The documents are “material" to the city's representation in its reply brief that Crown Castle failed to oppose the stay motion and would give the 5th Circuit “a full picture of the proceedings,” said Crown Castle’s motion.

Plaintiff Wireless Contractors Association filed notice Wednesday (docket 16-2023-CA-000911-XXXX-MA) in the 4th Judicial Circuit Court in Duval County, Florida, of the voluntary dismissal of its claims against defendant New Age Telecom. Each party will bear its own attorneys' fees and costs, said the notice. WCA signed a Sept. 1 contract for New Age to furnish construction services for WCA’s projects on an as-needed basis for Dish Network installations in and around Jacksonville, said its Feb. 13 complaint (see 2302270002). It alleged New Age failed to satisfy all contractual conditions needed for it to be entitled to payment. New Age responded by filing four claims of lien against WCA totaling more than $84,000 in unpaid balances.

U.S. Magistrate Judge Marian Payson for Western New York in Rochester adjourned Tuesday’s scheduled settlement conference to March 30 at 1:30 p.m. EDT in the three related infrastructure complaints brought by Crown Castle (docket 6:20-cv-06866), Extenet (6:20-cv-07129) and Verizon (6:19-cv-06583) challenging the city of Rochester’s wireless deployment fees, said a text-only entry in each of the three dockets. A single consolidated bench trial of the three cases is to begin June 1 and 2 (see 2212200065). Common to the complaints are the allegations Rochester’s fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way used or occupied by telecommunications service providers, in violation of Section 253 of the Telecommunications Act.

Even accepting landowner Olcan III Properties’ new allegations, its amended complaint “remains devoid of merit and fails to state a claim against Global Tower,” said the American Tower subsidiary in a reply Wednesday (docket 1:22-cv-02456) in U.S. District Court for Maryland, in further support of its motion to dismiss (see 2212070040). Olcan alleges Global Tower’s use of an easement to access the tower on the rooftop of a building that Olcan owns caused it to incur repair costs and to lose rents and profits. Recognizing the “threadbare” allegations in its amended complaint, Olcan “attempts to retroactively bolster the claims and add new allegations” in its opposition to the motion to dismiss to make the amended complaint “legally sufficient to survive dismissal,” said Global Tower. It’s improper to further amend a complaint in document filed in response to a motion to dismiss, it said. “Even if the amendment were allowed, the new allegations are inadequate,” and the amended complaint “remains legally deficient,” and should be dismissed, in its entirety, with prejudice, it said.

AT&T opposes the Feb. 27 letter motion from Muttontown, New York, requesting a stay of discovery in AT&T’s cell tower lawsuit against the village, pending the outcome of Muttontown’s motion to dismiss AT&T’s complaint, the carrier told U.S. Magistrate Judge Lee Dunst for Eastern New York in a letter brief Monday (docket 2:22-cv-05524). AT&T alleges the village violated the Telecommunications Act when it denied its application to build a 165-foot-high cell tower to remedy a significant coverage gap, and Muttontown moved to dismiss the complaint for AT&T’s alleged failure to properly make “a legally justiciable claim” (see 2303130040). The motion for a stay should be denied because Muttontown and its component boards can’t meet their burden of making a strong showing that their motion to dismiss “will result in the dismissal of all claims against all parties,” AT&T told the judge. “As a result, a stay would merely delay inevitable discovery, and prejudice not only AT&T, but also the public, which over recent years has come to depend primarily on reliable wireless telecommunications,” it said. A stay also would prejudice first responders, “who are being denied reliable access to FirstNet,” it said: “The right of all these persons and entities to an expeditious resolution of AT&T’s TCA claims would be frustrated by grant of a stay.” The defendants have “no rational basis to argue that dismissal of the highly fact sensitive TCA substantial evidence and prohibition of services claims” against Muttontown’s zoning board of appeals “is plausible, let alone likely,” said AT&T. Their stay brief doesn’t even address these claims, “as clear precedent establishes that stays of discovery are inappropriate when a motion to dismiss turns on fact-intensive issues that are not amenable to resolution on motion,” it said.

There appear to be “genuine disputes of material fact” between Charter’s Spectrum Pacific West and the city of Yuma, Arizona, “that would preclude granting summary judgment to either party,” said an order signed Thursday (docket 2:20-cv-01204) by Senior U.S. District Judge Roslyn Silver for Arizona in Phoenix. The impasse prompted Silver to schedule a jury trial in the dispute for May 8, said the order. She didn’t preclude Spectrum or Yuma from filing a motion for summary judgment. But if a motion is filed and it’s found to lack a “good faith basis,” she’ll consider “imposing sanctions” on the offending parties. The parties are to confer in good faith and file a status report by March 23, “identifying whether either side will seek summary judgment,” said her order. Spectrum sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law (see 2303090024). Yuma’s counterclaims assert Spectrum’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Spectrum’s predecessor company, signed with the city over use of Spectrum’s fiber capacity. Spectrum’s argument that Yuma’s counterclaim for breach of contract is moot “appears unfounded in law and fact,” said the judge. Spectrum argues that when it voluntarily dismissed its claims against the city, that resolved the dispute presented in Yuma’s counterclaim because that counterclaim is effectively for “anticipatory” breach of contract, she said. “Spectrum appears to believe it never breached the contracts and, therefore, the counterclaim fails,” said her order. “But Spectrum’s understanding of the counterclaim is incorrect,” it said. Yuma’s counterclaim “is based on allegations that a breach of contract already occurred,” it said. The breach of contract counterclaim could only be moot if Spectrum had paid all the damages and provided all other relief the city seeks because of the alleged breach of contract, it said.

Extenet moved Thursday to amend or, in the alternative, file an erratum to the exhibit list included with its Feb. 24 pretrial submissions to add as an exhibit at trial the expert report of Patricia Kravtin in its case against the city of Rochester’s wireless deployment fees, said its unopposed motion (docket 6:20-cv-07129). Extenet designated Kravtin as its expert witness but inadvertently omitted her report from the exhibit list included with its pretrial submissions, it said. A single consolidated bench trial is scheduled to begin June 1 and 2 in the related infrastructure complaints brought against Rochester by Extenet, Crown Castle and Verizon (see 2212200065). Common to all three complaints are the allegations that Rochester’s wireless deployment fees significantly exceed a reasonable approximation of the city’s actual costs of maintaining the rights-of-way used or occupied by telecommunications service providers, in violation of Section 253 of the Telecommunications Act. An in-person mediation conference for all the parties in the three cases is set for Tuesday.

The 101st Judicial District Court in Dallas wants to schedule a bench trial in the two-week docket opening Sept. 19 on Extenet’s Dec. 16 complaint that blamed Horizon Underground employees for causing $34,454 in damages to an underground cable, said the court’s notice Wednesday (docket DC-22-17265). Horizon said the contractor Extenet hired in March 2021, U.S. Infrastructure, was the real culprit because it improperly located and marked Extenet’s underground utility cable and facilities under a 48-hour “dig notice” (see 2302200003).

The city of Yuma, Arizona, has spent nearly $204,000 to date in outside attorney’s fees defending against Charter’s Spectrum Pacific West lawsuit, said the city in a “renewed” joint status report Wednesday (docket 2:20-cv-01204) in U.S. District Court for Arizona in Phoenix. The court ordered the parties to file the renewed report after they said they couldn’t agree on the “substance and content” of their original joint status report (see 2303060038). Spectrum sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law. Yuma’s counterclaims assert Spectrum’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Spectrum’s predecessor company, signed with the city over use of Spectrum’s fiber capacity. The taxpayer dollars that Yuma spent on lawyers “more properly should have been spent on a new ambulance or police equipment” or maintaining the city’s fiber network for the next eight years, said the city in its portion of the renewed status report. The city has incurred more than $300,000 in actual damages “resulting directly from Spectrum’s improper actions,” it said. Yuma can’t and shouldn’t “place the burden of paying for such damages” on its taxpayers, it said. Spectrum was left “no choice but to initiate this litigation” after the city “refused to adopt any process for it to apply to obtain a uniform license,” countered the company in the joint status report. Yuma insisted the Arizona law “requiring it to adopt such processes and grant such licenses was unlawful,” it said. “Its contrary position now is flatly contradicted by the record evidence.” The city’s assertion that it was somehow forced into this litigation is “mistaken,” said Spectrum. The lawsuit “resulted directly from its own refusal to abide Arizona law,” it said. Yuma’s current litigation position “rings particularly hollow” now that the city seeks to keep the litigation going through a motion for summary judgment “after the core issue in dispute has been resolved,” it said. “That effort is misguided, and its strategy to do so through dispositive motions practice is procedurally improper, based on unfair and improper discovery practice,” it said.

Appellee Crown Castle seeks to supplement the record in the 5th U.S. Circuit Appeals Court appeal of the city of Pasadena, Texas, with four documents pertinent to the district court’s granting of Pasadena’s motion for a stay in the case pending the appeal’s outcome, said its motion Wednesday (docket 22-20454). Pasadena didn’t oppose the motion, it said. Though Crown Castle’s opposition to the city’s stay motion, and the district court’s relevant rulings, didn’t make it into the initial appellate record, “these documents are material” to the city’s representation in its reply brief that Crown Castle failed to oppose the stay motion, the company said. In light of the city’s reply brief, filed Monday (see 2303070044), it’s “appropriate to include these items in the record” to give the 5th Circuit “a full picture of the proceedings,” Crown Castle said. Pasadena wants the 5th Circuit to reverse the lower court’s granting of summary judgment in Crown Castle’s favor on grounds that a "plain reading" of the city’s design manual shows the spacing requirement for small node networks is "clearly more burdensome" than the requirements applicable to other users of the public rights of way (see 2212010001).