Oregon City Sued By AT&T For Blocking Installation of Small Cell Wireless Facilities

New Cingular Wireless PCS, LLC, doing business as AT&T Mobility (AT&T) filed a complaint against the city of Corvallis, Ore. for its failure to approve small cell infrastructure that AT&T intends to install within city limits. Tuesday’s complaint sought declaratory and injunctive relief and an expedited review from the court, explaining that AT&T will suffer immediate and irreparable harm if action is not taken swiftly.

According to AT&T, it “has been attempting to place ‘small cell’ wireless facilities … on poles in the City’s rights-of-way, to provide and improve wireless services in the City.” Small cells, one type of personal wireless facility that AT&T constructs and installs “typically consist of short, unintrusive antennas and supporting equipment attached to utility poles and other structures in public rights-of-way and which assist in providing coverage for wireless service,” the complaint states.

AT&T further explained that federal law both encourages the swift deployment of new telecommunications technologies and limits municipalities’ ability to hinder their implementation. The complaint claimed that the city has violated federal law through its actions, and in particular, the FCC’s 2018 “‘Small Cell Order,’ In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment.” The order reportedly established both a 60-day “shot clock” for applications seeking to install small cells on existing structures and promulgated presumptively reasonable fees chargeable to wireless service providers.

AT&T explained that this year, it began negotiating with the city for a Right-of-Way Use License Agreement (MLA) intended to “govern AT&T’s installation of small cell facilities on utility poles in the public right-of-way.” However, the complaint contends, the city demanded unreasonable fees in connection with AT&T’s MLA application. As a result, the filing explains, “AT&T has been unwilling to sign the City’s proposed MLA.”

Specifically, AT&T averred that the city’s fee schedule and delay in approving its application violate federal telecommunications law and the Small Cell Order. The complaint states that the city far exceeds the FCC’s presumptively reasonable fees of an annual recurring fee of $270 for each small cell pole attachment, and $500 for an initial batched application of up to five small cell pole attachments.

In contrast, the plaintiff claimed, the city seeks to assess fees that violate the Small Cell Order. These include a 7% of gross revenue fee, an annual recurring fee, a quarterly license fee, and site application fee. In addition, the city’s Small Cell Order shot clock expired on October 13, yet, the plaintiff argues, the city has taken no action on its application.

AT&T brings three claims: unreasonable delay and shot clock violation and two claims of effective prohibition. It argues that it will “suffer imminent irreparable harm if the City continues to delay processing AT&T’s Application (and future applications), based on the City’s insistence on mandating license terms and fees that violate federal law,” and requests expedited review under the Telecommunications Act.

The plaintiff is represented by Crowell & Moring LLP and counsel from AT&T Services, Inc.