AT&T Case 20-cv-00294-EJD, Annotated

Learn the best strategies from Andrew Campanelli, Esq. 516-746-1600

Federal District Courts are Bound by US Courts of Appeals Rulings re: Effective Prohibition, Significant Gap in Telecommunications Service and Least Intrusive Means

View 12 minutes from 9:40 to 21:40 in this March 2021 Video | Then read “From the Beginning, 5G Milimeter Wave was a Big, Fat Lie”

AT&T so-called “small” Wireless Telecommunications Facilities (sWTFs) Application Processing Timeline

  • On March 22, 2019, AT&T filed Application Nos. 1, 2, and 4-12; City maintains applications remained incomplete throughout
  • On May 28, 2019, AT&T filed Application No. 3 ; City maintains applications remained incomplete throughout
  • AT&T states that their applications complied fully with Chapter 11.12, the City Municipal Code, which was the applicable City code provision at the time the Applications were filed; City maintains applications remained incomplete; once applications became complete, the current code would apply, not the code that was in force when the incomplete applications first arrived.
  • On August 5, 2019, the City adopted Ordinance 2019-460, which repealed and replaced Chapter 11.12; The City also adopted Resolutions 2019-35 and 2019-36, which collectively address the placement of wireless facilities in the City (“Wireless Regulations”); City concurs
  • On September 17, 2019, the City Manager denied all the Applications. In each denial, the City Manager stated that, despite AT&T’s objections, the City would apply its new Wireless Regulations retroactively to serve as the basis for denial of all the Applications. City admits that on August 5, 2019, the City adopted the City’s 2019 Wireless Regulations, which address the placement of wireless facilities within the City limits. The City alleges that the City’s 2019 Wireless Regulations speak for themselves. Except as expressly admitted herein, the City denies the remaining allegations.
  • On September 20, 2019, AT&T submitted timely appeals and supplemented the record on October 28, 2019 and December 4, 2019. A public hearing was held on December 17, 2019 to consider AT&T’s appeals of the City Manager’s denials. On December 20, 2019, AT&T received a written notice from the City denying AT&T’s appeals; City admits that AT&T submitted appeals on September 20, 2019, and admits that AT&T offered supplemental materials on October 28, 2019 and December 4, 2019. The City alleges that AT&T’s Applications were incomplete when submitted and were incomplete when denied by the City Manager including because the Applications failed to include a gap analysis and alternative sites analysis, and alleges that AT&T failed to provide an adequate gap analysis and alternative sites analysis when it supplemented its Applications only after it had appealed the City’s denial of its Applications. The City admits that a public hearing was held on December 17, 2019 at which time AT&T’s appeals of the City Manager’s denials were considered, and admits that after such hearing, the City denied the appeals and passed Resolution No. 2019-52. Resolution No. 2019-52 speaks for itself. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.
  • AT&T states the City Council determined it could not grant an exception under Municipal Code Section 11.12.090(A). Under that provision, an exception may be granted if (1) Denial of the facility as proposed would violate federal law, state law, or both; or (2) A provision of Chapter 11.12, as applied to the applicant, would deprive applicant of its rights under federal law, state law, or both. City specifically denies that it incorrectly determined that its denials of the Applications violated any law. The allegations also merely consist of legal conclusions to which no answer is required and are denied on that basis
  • AT&T states the City incorrectly concluded that its denials did not violate AT&T’s federal and state law rights; The City has violated the Act by failing to base its denial of the Applications on substantial evidence and has effectively prohibited AT&T from providing adequate personal wireless services in violation of the Act; City specifically denies that it incorrectly determined that its denials of the Applications violated any law; City denies that it violated the Act, denies that its denials of the Applications were not based on substantial evidence, and denies that its denials effectively prohibited AT&T from providing adequate personal wireless services in violation of the Act.

Excepts from Case 5:20-cv-00294-EJD, Filed 01/13/20

1. AT&T seeks declaratory and injunctive relief based on the City’s denial of twelve AT&T small wireless facilities applications (the “Applications”) in violation of federal law . . . Federal law limits the ability of municipalities to block the installation of such facilities, based on nationwide goals of promoting the widespread availability of advanced, reliable personal wireless services.

2. Since March 2019, AT&T has been trying to place these twelve small cells in the City, with a goal to provide and improve wireless services in parts of the City where the wireless service is currently inadequate.

2. Los Altos Answering Paragraph 2, the City admits that AT&T submitted 11 applications for wireless facilities in March 2019, and submitted another application for wireless facilities in or about May 2019 (the “Applications”), 1 and admits that the City denied the Applications. The City denies that its denial of the Applications violated any law. As to the remainder of the allegations, the City either lacks sufficient knowledge or information to form a belief as to the truth of the remainder of such allegations, and on that basis denies the remaining allegations, or the remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

3. The City’s denial of AT&T’s Applications violates Sections 253 and 332 of the Federal Communications Act of 1934, as amended by the Telecommunications Act of 1996 (the “Act”) . . . municipalities may not act in a manner that effectively prohibits the provision of personal wireless service

4. The City of Los Altos denied the Applications, and, later, AT&T’s appeal of the denials, at a December 17, 2019 City Council meeting.

4. Los Altos Answering Paragraph 4, the City admits that it denied the Applications and admits that it denied AT&T’s appeal of the denial of the Applications at a December 17, 2019 public hearing before the City Council. The City lacks sufficient knowledge or information to form a belief as to the truth of the remainder of the allegations contained in said paragraph, and on that basis, denies the remaining allegations.

5. The City denied the Applications based on its blanket bans on the placement of wireless facilities in residential districts and within 500 feet of schools, which prohibit these facilities throughout more than 85% of the City, including the areas where AT&T needs to place these twelve small cells.

5. Los Altos Answering Paragraph 5, the City admits that it denied the Applications based on the City’s regulations regulating the location of wireless facilities in the City in effect at the time i.e., the Urgency Ordinance No. 2019-460 and Resolution Nos. 2019-35 and 2019-36, which collectively address the placement of wireless facilities within the City limits (“the City’s 2019 Wireless Regulations”). The City admits that the City’s 2019 Wireless Regulations regulate the placement of wireless facilities in residential districts and within 500 feet of schools in a Public and Community Facilities District (“PCF District”). The City denies that the City’s 2019 Wireless Regulations and its denial of the Applications constitute a “blanket ban,” are arbitrary and capricious, and effectively prohibits AT&T from installing its telecommunications and personal wireless service facilities. The City lacks sufficient knowledge or information to form a belief as to the truth of the allegation that the City’s 2019 Wireless Regulations prohibit wireless facilities throughout more than 85% of the City. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

9. Plaintiff AT&T is a limited liability company duly organized, existing, and operating under the laws of Delaware, with its principal place of business in Atlanta, Georgia, with offices at locations throughout California.

9. Los Altos Answering Paragraph 9, the City lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis, denies the allegations.

11. AT&T seeks an order compelling the City to issue forthwith all permits and other necessary authorizations to collocate personal wireless service facilities at the following twelve (12) sites (the “Sites”):

Small Cells Application No. Approximate Location Map Link
AT&T #1 SE19-00009 141 Almond Avenue, Los Altos, CA Link
AT&T #2 SE19-00003 687 Linden Avenue, Los Altos, CA Link
AT&T #3 SE19-00017 421 Valencia Drive, Los Altos, CA Link
AT&T #4 SE1 9-00004 33 Pine Lane, Los Altos, CA Link
AT&T #5 SE19-00010 49 San Juan Court, Los Altos, CA Link
AT&T #6 SE1 9-00011 791 Los Altos Avenue, Los Altos, CA Link
AT&T #7 SE19-00005 98 Eleanor Avenue, Los Altos, CA Link
AT&T #8 SE19-00006 182 Garland Way, Los Altos, CA Link
AT&T #9 SE19-00012 491 Patrick Way, Los Altos, CA Link
AT&T #10 SE19-00013 300 Los Altos Avenue, Los Altos, CA Link
AT&T #11 SE1 9-00007 130 Los Altos Avenue, Los Altos, CA Link
AT&T #12 SE1 9-00008 356 Blue Oak Lane, Los Altos, CA Link

11. Los Altos Answering Paragraph 11, the City admits that AT&T’s complaint is styled as one seeking an order compelling the City to issue all permits and other necessary authorizations to collocate personal wireless service facilities at the twelve (12) Sites set forth in Paragraph 11 of the Complaint. The City denies that AT&T is entitled to such an order. The City denies any remaining allegations.

12. The relief requested herein is necessary and appropriate because the City has violated the Act by denying AT&T’s Applications, which effectively prohibits AT&T from providing adequate personal wireless services in the area.

12. Los Altos Answering Paragraph 12, the City denies that it has violated any law concerning its denial of the Applications, including the Act, denies that it effectively prohibits AT&T from providing adequate personal wireless services in the area, and denies that the relief requested in this action by AT&T is necessary and appropriate. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

15. Congress empowered the Federal Communications Commission (“FCC”) with a broad mandate to interpret provisions of the Act and to promulgate regulations. In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 9088, (FCC rel. Sept. 27, 2018) (hereinafter “Small Cell Order”)

16. . . . the Act imposes certain restrictions on the authority of local and state governments to restrict the provision of personal wireless and telecommunications services.

17. The FCC has explained that under Section 253 ¶ 37. . .

“an effective prohibition occurs where a [local regulation] materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service.”

19. The FCC has held that an effective prohibition under Section 253 or Section 332 is not limited to situations in which a wireless carrier demonstrates a significant coverage gap.

Wire America: Nice try, but the Ninth Circuit Court of Appeals has not similarly “held” that an effective prohibition is not limited to situations in which a wireless carrier demonstrates a significant coverage gap prohibition. In fact, significant gap in telecommunications coverage and least intrusive means of closing a proven gap are the standards in the Ninth Circuit. One Federal judge in New York said and I’ll quote him:

“It is not up to the FCC to put words in the Telecommunications Act that aren’t there.”

In the Matter of California Payphone Assoc. Petition for Preemption, Etc., Opinion and Order, 12 FCC Rcd. 14191 (FCC rel. July 17, 1997) has nothing to do with wireless telecommunications service.

20. A local government “could materially inhibit service in numerous ways – not only by rendering a service provider unable to provide existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services.” Small Cell Order, ¶ 37.

Wire America: This overreach by the FCC is ripe for Federal Court challenge, as well. According to FCC Attorney, Scott Noveck, who argued for the FCC in support of FCC 18-133, the Small Cell Order, the Order anticipates case-by-case adjudication because the the Order is not self-enforcing. Let the challenges begin. (From https://wireamerica.org/ninth-circuit-case-re-fcc-18-133/:

Scott Noveck, FCC Attorney on Feb 10, 2020https://youtu.be/zoZHNSOibmo?t=35m05s

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

Scott Noveck, FCC Attorney on Feb 10, 2020https://youtu.be/zoZHNSOibmo?t=37m47s

“Localities are still free to craft their own substantive aesthetic requirements”

Scott Noveck, FCC Attorney on Feb 10, 2020https://youtu.be/zoZHNSOibmo?t=38m28s

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They contemplate the need, in many circumstances, for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”

Scott Noveck, FCC Attorney on Feb 10, 2020https://youtu.be/zoZHNSOibmo?t=40m21s

“Nothing in this order is self-enforcing.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → <https://youtu.be/zoZHNSOibmo?t=40m52s?

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

Scott Noveck, FCC Attorney on Feb 10, 2020https://youtu.be/zoZHNSOibmo?t=51m44s

“These small cells, though they have much less range than macro towers, they have a fair range.”

21. The Ninth Circuit has held that once a wireless carrier shows that denial will result in an effective prohibition, the local government, to avoid violating the Act, is required to show the existence of some potentially available, technically feasible, and less intrusive alternative(s) to the proposed wireless facilities. City of Anacortes, 572 F.3d at 998

Wire America: Para 21 is a distorted conclusion from City of Anacortes ruling (572 F.3d), which hinged on the fact that the City of Anacortes admitted there was a significant gap in T-Mobile’s wireless telecommunications service. With that fact stipulated by all parties, then the analysis proceeds to determining if the proposed location was the least intrusive means to address the stipulated gap. In Los Altos, there is no substantial written evidence provided by the applicant to prove it has a significant gap in telecommunications service (telecommunications service = personal wireless service = the ability to place an outdoor wireless phone call; this has nothing to do with wireless broadband or wireless information service, matters over which there is NO FEDERAL PREEMPTION).

Since a significant gap in telecommunications coverage is integral to any effective prohibition standard and no significant gap in telecommunications coverage has been established by AT&T in Los Altos, one does not need to proceed to least intrusive means tests, so the City of Los Altos would prevail, as long as it cited substantial written evidence proving the obvious fact that any person in Los Altos can make an outdoor Wireless phone call at any time day or night. This can also be established by requiring the following from the applicant:

For the target search ring of each proposed so-called “small” Wireless Telecommunications Facilities (sWTF), AT&T must provide 12-months of anonymized AT&T completed calls and dropped calls to establish if there is any significant gap in telecommunications coverage – in order to establish if there is a need for any of these sWTFs, The placing of wireless phone calls are the only “covered services” the City must consider.

Top News from Thursday, April 21, 2022

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25. AT&T provides personal wireless services to its customers throughout the area relevant to this Complaint pursuant to frequency licenses issued by the FCC. When AT&T identifies a need to improve critical personal wireless services in an area, AT&T investigates the nature and extent of the need for improvement and identifies ways to fulfill that need

25. Los Altos Answering Paragraph, the City admits that AT&T provides personal wireless services to various customers within California. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.

Wire America: (telecommunications services = personal wireless services = the ability to place outdoor wireless phone calls; this has nothing to do with wireless broadband or wireless information service, matters over which there is NO FEDERAL PREEMPTION)

26. The proposed small cell facilities at issue in the Applications (the “Facilities”) will help AT&T provide and improve critical personal wireless services in the City of Los Altos. Generally, needs of AT&T’s customers require AT&T to design and maintain its network to provide and improve wireless signal quality and to increase the data rates required to effectively stream video services and provide adequate in-building service.

26. Los Altos Answering Paragraph 26, the City admits that AT&T submitted applications for telecom facilities regulated under the City’s 2019 Wireless Regulations, but denies that the proposed Facilities will help AT&T provide and improve critical personal wireless services in the City. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.

Wire America: “increase the data rates required to effectively stream video services and provide adequate in-building service” is wireless broadband or wireless information service, matters over which there is NO FEDERAL PREEMPTION.

27.The Facilities will help AT&T close an existing in-building service coverage gap. This is especially important as more than 72% of American households rely primarily or exclusively on wireless telecommunications, and 70% of 911 calls are placed by people using wireless phones.

27. Los Altos Answering Paragraph 27, the City denies that the Facilities will help AT&T close an existing in-building service coverage gap. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.

Wire America: Nice try, but there is no federal or state statutes or any 9th Circuit case law that says “existing in-building service coverage” is applicable to a “significant gap in telecommunications service” test. Anyone can force AT&T to provide a legacy, POTS, switched copper landline telephone for reliable 911 call service from homes because AT&T is the carrier of last resort in most parts of California. What a stretch..

28. . . . AT&T selected the Facilities at issue here as the best available and least intrusive means to address its service objectives in the relevant portions of the City.

28. Los Altos Answering Paragraph 28, the City denies that as to each of the twelve applications, AT&T selected the best available and least intrusive means to address its service objectives in the City. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.

Wire America: AT&T’s “service objectives” are actually about wireless information services for these so-called “small” Wireless Telecommunications Facilities (sWTFs) None of this is about telecommunications services = personal wireless services = making outdoor wireless phone calls..

29. . . . Pursuant to the California Constitution and Section 7901 of the California Public Utilities Code, AT&T has a statewide franchise right to construct telecommunications facilities and place poles within the public rights-of-way so long as it does not incommode the public use of the road and highway.

29. Los Altos Answering Paragraph 29, the City denies that AT&T has a right to locate its equipment in the public right of way despite the City’s 2019 Wireless Regulations and despite whether such placement of equipment will incommode the public use of the road and highway. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis, denies the allegations.

2019 CA Supreme Court Ruling in T-Mobile v San Francisco

“. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . . the word “ ‘incommode’ means ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” . . . Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. . . . For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.“

43. The FCC has ruled that a local regulation effectively prohibits telecommunications service if the regulation materially inhibits a competitor from competing in a fair and balanced legal and regulatory environment or limits its ability to engage in any of a variety of activities related to provision of a covered service

43. Los Altos Answering Paragraph 43, the City denies that the City’s 2019 Wireless Regulations and the City’s denials of the Applications prohibit or have the effect of prohibiting the ability of AT&T to provide telecommunications service in the City, and denies that the City’s 2019 Wireless Regulations and the City’s denials of the Applications violate the Act. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: A covered services = telecommunications services = personal wireless services = the ability to place outdoor wireless phone calls; this has nothing to do with wireless broadband or wireless information service, matters over which there is NO FEDERAL PREEMPTION

Clear Wireless LLC v. Building Department of the Village of Lynbrook et al.

On October 4, 2010, the Board denied Clearwire’s application for a special use permit. (See Resolution & Decision, Ex. L.) Among the reasons for denying the application was the Board’s belief that, because 4G service is an “advanced Internet product”, the application was not entitled to the higher level of review afforded to telecommunications services under the Telecommunications Act of 1996. The Board based this conclusion on the D.C. Circuit’s decision in Comcast Corporation v. Federal Communications Commission, 600 F.3d 642 (D.C. Cir. 2010). Thus, the Board only analyzed Clearwire’s application under the criteria set forth in the Village Code.

Judge Pratt quotes a 2011 ruling in Arcadia Towers when he writes “‘Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law.'”

45. Under the Small Cell Order, a decision regarding placement of a small cell facility effectively prohibits the provision of personal wireless service if it materially inhibits a competitor from competing in a fair and balanced legal and regulatory environment or limits its ability to engage in any of a variety of activities related to its provision of a covered service.

45. Los Altos Answering Paragraph 45, the City denies that the City’s 2019 Wireless Regulations and the City’s denials of the Applications prohibit or have the effect of prohibiting the ability of AT&T to provide telecommunications service in the City, and denies that the City’s 2019 Wireless Regulations and the City’s denials of the Applications violate the Act. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: Nice try, but telecommunications services are separate from information services under the TCA and the current FCC regulatory scheme, per the Oct 2019 ruling in Mozilla v FCC; also in Clear Wireless LLC v. Building Department of the Village of Lynbrook et al.

Judge Arthur Pratt:

. . . because the FCC has classified wireless broadband Internet access service outside of the statutory reach of Section 332(c)(7), Clearwire cannot rely on the 2009 Declaratory Ruling to supplant the plain language of the statute. See Arcadia Towers, 2011 WL 2490047, at *2 (“In their briefing and at the hearing, Plaintiffs argue that the TCA does apply to broadband communication based on a subsequent 2009 FCC Declaratory Ruling, which Plaintiffs contend signals a change in the FCC’s view, such that broadband communication should be entitled to protection under the TCA. However, the Court has scrutinized such opinion, and agrees with Defendants that it does not overrule the 2007 ruling, nor does it hold that wireless broadband communication services are covered by the TCA. Although the 2009 Declaration speaks in favor of broadband in dicta, it in no way states that broadband communications are encompassed by the TCA.”).

46. . . . Because the City’s Wireless Regulations are inconsistent with the FCC’s standard for aesthetic requirements, they are presumed to be an effective prohibition and preempted under the Act

46. Los Altos Answering Paragraph 46, the City admits that the City’s 2019 Wireless Regulations were adopted on August 5, 2019. The City alleges that the City’s 2019 Wireless Regulations speak for themselves. The City denies that the City’s 2019 Wireless Regulations violate the Small Cell Order, and denies that the City’s 2019 Wireless Regulations constitute an effective prohibition under the Act. The City denies that the City’s 2019 Wireless Regulations are not reasonable, and denies that the City’s 2019 Wireless Regulations are inconsistent with the FCC’s standard for aesthetic requirements, and denies that the City’s 2019 Wireless Regulations are preempted under the Act. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: Presumed to be??? Not even close, given the following Aug 2020 ruling in City of Portland et al. v FCC

Link to Ninth Circuit Court of Appeals Case No. 18-72689 City of Portland et al. v FCC re: repeal of FCC Orders 18-111 and 18-133. The full video of the oral argument is featured at the top of this page.

The 9th Circuit judges ruled on August 12, 2020 in Case No. 18-72689 City of Portland et al. v FCC:

We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

  • GRANT the petitions as to those requirements,
  • VACATE those portions of the rule and
  • REMAND them to the FCC.”

47. The City’s Denial erroneously asserts that AT&T can only show an effective prohibition if it satisfies the “significant gap” test set forth in the Ninth Circuit’s City of Anacortes decision. In its Small Cell Order, the FCC expressly rejected the suggestion that that test is the only way of establishing an effective prohibition. In any event, AT&T’s Applications satisfy the “significant gap” test.

47. Los Altos Answering Paragraph 47, the City alleges that Resolution No. 2019-52 speaks for itself and alleges that AT&T did not demonstrate that there was a “significant gap.” The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

48. The “significant gap” test requires AT&T to prove a significant service coverage gap and to show that the proposed Facilities are the least intrusive means by which to close that gap. AT&T submitted expert radio frequency reports for each Application to prove not only the existence of a significant service coverage gap, but also how each small cell would help close that gap. Further, AT&T provided a robust alternative site analysis with each Application, to show that each proposed small cell Facility amounted to the least intrusive means by which to close the service coverage gap

48. Los Altos Answering Paragraph 48, the City admits that AT&T submitted documents styled as radio frequency reports, and admits that AT&T submitted documents styled as alternative sites analyses. The City denies that AT&T showed a significant service coverage gap, and denies that each wireless facility proposed by AT&T in the Applications amounted to the least intrusive means of closing any service gap. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

49. The City provided no evidence to rebut any of the above reports. In fact, public testimony at the hearing, as well as a story relayed by Councilmember Bruins, confirmed the inbuilding signal strength gap that AT&T’s evidence established. Non-expert statements by the public regarding AT&T’s website coverage maps, reduction in property values, and the supposed environmental effects of radio frequency emissions did not rebut any of AT&T’s materials. Moreover, and as explained in Count II below, such lay testimony cannot serve as substantial evidence upon which to base a denial of a wireless facility permit application.

49. Los Altos Answering Paragraph 49, the City denies that AT&T met its burden to establish a significant gap and least intrusive means. The City alleges that the record of proceedings, including written and oral communications speaks for itself. The City denies that testimony at the hearing confirmed an in-building signal strength gap, and denies that AT&T established an in-building signal strength gap. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: Lay testimony cannot serve as substantial evidence??? Wrong, again. If the public enters substantial written evidence in the public record, it fully counts in the deliberations.

50. Under the Ninth Circuit’s “significant gap” test, once AT&T shows a significant service coverage gap and a lack of less intrusive alternatives, the burden shifts to the City to identify available, technically feasible, and less intrusive alternatives to AT&T’s proposed Facilities. The City cannot merely say that AT&T should have done more and that the record is not persuasive (which is all the City did in this case). See City of Anacortes, 572 F.3d at 998. AT&T’s Applications seek approval for the least intrusive means to close its significant service coverage gap, and it is unlawful for the City to deny the Applications without identifying available, technically feasible, and less intrusive alternatives.

50. Los Altos Answering Paragraph 50, the City denies that AT&T met its burden to establish a significant service coverage gap, and denies that each wireless facility proposed by AT&T in the Applications amounted to the least intrusive means of closing any service gap. The City denies that the City’s denial of the Applications was unlawful. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: AT&T did not prove — with substantial, verified, written evidence in the public record — a significant gap in of outdoor wireless call coverage which is the only relevant test for significant service coverage gap in personal wireless service coverage.

51. Wholly apart from the “significant gap” test, the City’s denials constitute an effective prohibition because the City has materially inhibited AT&T’s provision of service, including AT&T’s improvement of existing services. See Small Cell Order, ¶ 37. The proposed Facilities are needed to help AT&T close a significant existing service coverage gap and improve critical wireless services in the City. Through its twelve (12) Applications, AT&T complied with all applicable, lawful requirements for the necessary permits and approvals from the City.

51. Los Altos Answering Paragraph 51, the City denies that its denials of the Applications constitute an effective prohibition under the Act, and denies that its denials of the Applications materially inhibited AT&T’s provision of services. The City denies that AT&T showed a significant service coverage gap. The City denies that AT&T complied with all applicable, lawful requirements for the necessary permits and approvals from the City. The City lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations, and on that basis denies the remaining allegations.

52. By denying AT&T’s Applications, the City effectively prohibited AT&T from providing personal wireless services, which violates the Act.

52. Los Altos Answering Paragraph 52, the City denies that its denial of the Applications effectively prohibited AT&T from providing personal wireless services, and denies that its denial of the Applications violates the Act. The City denies any remaining allegations.

Wire America: This is clearly a false statement disproven by the public’s ability to reliably make outdoor wireless phone calls everywhere in the City of Los Altos.

57. For a local regulation to serve as substantial evidence upon which to base a denial, the local regulation must be lawful. Here, not only do the City’s Wireless Regulations violate the Act on their face (see First Claim for Relief, above), but the specific sections cited by the City in its Denial are inconsistent with the Small Cell Order.

57. Los Altos Answering Paragraph 57, the City denies that the City’s 2019 Wireless Regulations violate the Act on their face, and denies that the City’s 2019 Wireless Regulations are inconsistent with the Small Cell Order. The remaining allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

58. Under the FCC’s standard for small cells, aesthetic criteria must be (i) reasonable, in that they are technically feasible and reasonably directed to avoiding or remedying out-of-character deployments; (ii) no more burdensome than those applied to other types of infrastructure deployments; and (iii) objective and published in advance. See Small Cell Order, ¶ 86-87. Objective aesthetic criteria present a standard that is clearly-defined and ascertainable. See id. at ¶

58. Los Altos Answering Paragraph 58, the allegations merely consist of legal conclusions to which no answer is required and are denied on that basis.

Wire America: Uh . . . no. Read the ruling in Case No. 18-72689.

The 9th Circuit judges ruled on August 12, 2020 in Case No. 18-72689 City of Portland et al. v FCC:

We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

  • GRANT the petitions as to those requirements,
  • VACATE those portions of the rule and
  • REMAND them to the FCC.”

59. The City’s Wireless Regulations were adopted after the Applications were filed, so they violate an important element of the FCC Small Cell Order’s standard for aesthetic regulations, i.e., that they be published in advance.

59. Los Altos Answering Paragraph 59, the City admits that the City’s 2019 Wireless Regulations were adopted on August 5, 2019. The City alleges that the Applications submitted by AT&T on March 22, 2019 and May 28, 2019 were incomplete when submitted and when denied by the City Manager. The City denies that the City’s 2019 Wireless Regulations violate the Small Cell Order’s standard. The City denies any remaining allegations.

60. . . . As explained by AT&T’s Radio Frequency expert in Applications Nos. 1, 2, and 4-12, the proposed small cell facilities are needed in the City’s right-of-way in residential districts to close an existing in-building service coverage gap (in customer’s homes) and to address forecasted demand. The Facilities need to be placed closer to AT&T’s customers to address these concerns, which is why they need be in the right-of-way in residential districts.

60. Los Altos Answering Paragraph 60, the City admits that Resolution 2019-35 only permits placement of wireless facilities in the City in accordance with the related Table, and alleges that the City’s 2019 Wireless Regulations speak for themselves. The City admits that AT&T submitted documents prepared by AT&T’s retained consultant Bill Hammett offering frequency analysis in support of AT&T’s Applications addressing the proposed wireless facilities in the Applications. The City denies that the City’s 2019 Wireless Regulations constitute a “general ban” on wireless facilities in rights-of-way, and denies that the City’s 2019 Wireless Regulations are not reasonable. The City denies that the proposed facilities must be placed in residential districts or else AT&T will be effectively prohibited from providing wireless services. The City denies the remaining allegations.

Wire America: This is just wishful thinking by AT&T. Neither “in-building coverage” nor “addressing forecasted demand” are considered in the 9th circuit’s significant gap in telecommunications coverage test.

61. Los Altos Answering Paragraph 61, the City alleges that Resolution No. 2019-52 speaks for itself. The City denies that the 500 feet setback requirement violates the FCC aesthetic standard, denies that it is unlawful, and denies that a failure to comply with the 500 feet setback requirement in a PCF District cannot serve as substantial evidence upon which to base a denial under the Act. The City denies that the proposed facility in Application No. 1 is needed within the 500-foot setback requirement to close an existing in-building service coverage gap. The City denies the remaining allegations.

62. There is no lawful basis for the City’s 500-foot setback from schools. It is a pretext for health concerns from radio frequency (RF) exposure, which is unlawful in instances in which the proposed wireless facility complies with the relevant FCC regulations for RF emissions. AT&T has demonstrated such RF compliance for all its Applications, and Mr. Hammett testified to those results at the December 17, 2019 hearing. The 500-foot setback is unlawful and cannot service as substantial evidence upon which to base the City’s denial of Application No. 3.

62. Los Altos Answering Paragraph 62, the City denies that there is no lawful basis for the City’s 500-foot setback from schools, and denies that it is a pretext for health concerns from radio frequency (RF) exposure. The City denies that the 500-foot setback is unlawful and denies that it cannot serve as substantial evidence upon which to base the City’s denial of any Application. The City alleges that Resolution No. 2019-52 speaks for itself. Except as admitted or alleged herein, the City denies any remaining allegations.

Wire America: The lawful basis is that it is in the City of Los Altos code. The allegation that the provision of local code is ” pretext for health concerns from radio frequency (RF) exposure” is a baseless statement. Such a reason is not provided in local code. AT&T demonstrating RF compliance and Mr. Hammett testifying to those results at the December 17, 2019 hearing does not deliver actual public safety. The 500-foot setback is lawful and the fact that it was voted in as a provision of local code is the substantial evidence upon which to base the City’s denial of Application No. 3.

63. Lastly, the City’s requirement to find “compatibility with the community to the maximum extent reasonably feasible” violates the FCC standard because it not objective and cannot serve as substantial evidence upon which to base a denial of any of the Applications.

63. Los Altos Answering Paragraph 63, the City denies that its requirement under the City’s 2019 Wireless Regulations to find “compatibility with the community to the maximum extent reasonably feasible” violates the FCC standard because it is not objective and cannot serve as substantial evidence upon which to base a denial of any of the Applications. The City denies any remaining allegations.

Wire America: AT&T attorneys apparently do not read 9th Circuit rulings. The FCC requirment for “objective” standards for aesthetics was vacated by the Aug 2020 9th circuit ruling. See above.

68. These location bans are pretexts for health concerns regarding radio frequency emissions and are unlawful when the proposed wireless facility complies with the relevant FCC regulations for RF emissions. AT&T has demonstrated its compliance with all RF emission

68. Los Altos Answering Paragraph 68, the City admits that Mr. Hammett testified at the December 2019 public hearing. The City lacks sufficient knowledge or information to form a belief as to the truth of the allegation that AT&T demonstrated its compliance with all RF emission standards for all its Applications. Except as admitted or alleged herein, the City denies the remaining allegations.

AFFIRMATIVE DEFENSES

The City pleads the following separate defenses. The City reserves the right to assert additional affirmative defenses that discovery indicates are proper.

FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim)

  1. As a separate and first affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that the Complaint fails to state facts sufficient to constitute a cause of action, including because AT&T failed to provide an adequate gap analysis and alternative sites analysis.

SECOND AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies)

  1. As a separate and second affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that AT&T failed to exhaust its administrative remedies, including because AT&T’s Applications were incomplete when submitted, and were incomplete when denied by the City Manager, and because AT&T failed to provide an adequate gap analysis and alternative sites analysis.

THIRD AFFIRMATIVE DEFENSE (Equitable Doctrines)

  1. As a separate and third affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that AT&T’s claims are barred by equitable doctrines, including without limitation waiver, unclean hands, and latches, including because AT&T’s Applications were incomplete when submitted and were incomplete when denied by the City Manager, and because AT&T failed to provide an adequate gap analysis and alternative sites analysis.

FOURTH AFFIRMATIVE DEFENSE (Attorneys’ Fees)

  1. As a separate and fourth affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that AT&T’s claims fail to state facts sufficient for an award of attorney’s fees against the City because recovery of attorneys’ fees are unavailable under the Act.

FIFTH AFFIRMATIVE DEFENSE (Estoppel)

  1. As a separate and fifth affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that AT&T’s claims are barred by reason of Plaintiff’s own actions and course of conduct, including because AT&T’s Applications were incomplete when submitted and were incomplete when denied by the City Manager, and because AT&T failed to provide an adequate gap analysis and alternative sites analysis.

SIXTH AFFIRMATIVE DEFENSE (Abstention)

  1. As a separate and sixth affirmative defense to the Complaint, and to the purported causes of action set forth therein, the City alleges that AT&T’s claims are precluded because resolution of the issues implicated by AT&T’s claims are currently pending in a different case before the Ninth Circuit Court of Appeals.

WHEREFORE, the City prays for relief as follows:

  1. That the Complaint be dismissed, in its entirety with prejudice;

  2. That AT&T take nothing by reason of this Complaint and that judgment be entered against AT&T and in favor of the City;

  3. That the City be awarded its costs incurred in defending this action; and

  4. That the City be granted such other and further relief as the Court may deem just and proper.

DATED: March 9, 2020

MEYERS, NAVE, RIBACK, SILVER & WILSON

By:

/s/ Deborah J. Fox DEBORAH J. FOX Attorneys for Defendant CITY OF LOS ALTOS

DEMAND FOR JURY

Defendant demands a jury trial on all counts of Plaintiff’s Complaint.

DATED: March 9, 2020 MEYERS, NAVE, RIBACK, SILVER & WILSON

By:

/s/ Deborah J. Fox DEBORAH J. FOX Attorneys for Defendant CITY OF LOS ALTOS