In her article, “In T-Mobile Wireless Equipment Dispute, San Francisco Wins on Aesthetics” (September 20, 2016) reporter Bloomberg/BNA Lydia Beyoud discusses some of the key impacts of San Francisco’s appellate win in the case. I provided her with insights and several quotes. I link the decision to 5G deployment pressures which drive carriers to want to build sites in the public right of way very close to users.
Back on May 27, 2016 Martha DeGrasse of RCR Wireless published a very interesting article titled, “Mobilitie to increase transparency for jurisdictions”. It’s well worth going back to (re)read her article about how Mobilitie’s President, Christos Karmis said his firm would use its own corporate name with local jurisdictions.
Huh? Use its own name? Why is this a big deal?
Well, this arose out of Mobilitie’s process of using “<INSERT THE STATE NAME> Utility Pole Authority” names with local governments. Using the word “Authority” as an entity identification in government filings suggests that the entity is, itself, some sort of governmental agency. That’s made clear in Martha’s article.
With Mr. Karmis’s assurance back in May, many of us on the government side thought the hide-the-ball issue was resolved.
Fast forward two months after Martha’s article to July 28, 2016. That’s the date on a letter from Keenan Adamchak, legal counsel for a nifty new entity called “Pole & Fiber Network Authority ME, LLC”, addressed to the Maine Public Utilities Commission.
What did the July letter request on behalf of the Pole & Fiber Network Authority ME, LLC? The first paragraph of the letter sets out that
On behalf of Pole & Fiber Network Authority ME, LLC (“Pole & Fiber Network Authority ME,”
or the “Company”), transmitted herewith is the Company’s Application for Authority to Provide
Intrastate Local Exchange Telecommunications Service in the State of Maine.
I suppose Mobilitie, which set up Pole & Fiber Network Authority ME, LLC back in February, is still enamored with being called an Authority. Given that local governments commonly ask for proof of state authority to operate in those local jurisdictions when an entity seeks local permits and authorizations, names really do count.
It’s my opinion that the Maine application, filed over two months after Mr. Karmis’s comments about transparency, suggests a parallel with another matter of public concern and interest where the words counted:
That’s my opinion. What’s yours?
Today the California Court of Appeal (1st) affirmed the trial decision in T-Mobile v. San Francisco (San Francisco City and County
Super. Ct. No. CGC-11-510703).* That decision held that local governments in California have rather broad aesthetic control over wireless facilities in the public right-of-way.
This decision is hot off the press, so a deep analysis will follow. For now, let the reading begin!
* Disclosure: I served as the wireless communications expert witness for the City and County of San Francisco.
When Crown Castle was unhappy with a decision by the City of Westfield, Indiana denying a cell site application, they sued Westfield in state court. The case is:
Crown Castle Towers 06-2 LLC v. City of Westfield, Tracy Pielemeier, Ginny Kelleheret al, Case No. 29C01-1511-MI-009308.
Of course Crown Castle sued the City of Westfield. No surprise there. But Crown Castle through its attorneys took the nearly unheard of step of suing John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher, all of whom spoke out against Crown Castle’s project at a City of Westfield public hearing.
Okay, Crown Castle said in a statement delivered to the local press that they no choice to include John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit. Hogwash. It was, I believe, a stupid and ill-sighted move to stifle future public comment on matters of public interest, specifically pending cell site applications.
SLAPP and ANTI-SLAPP
I’m not expert on Indiana law, but Indiana has an “ANTI-SLAPP” statute designed to quash law suits filed to stifle political speech in public forums. A SLAPP is a “strategic law suit against public participation” and an ANTI-SLAPP is a law suit to quash the SLAPP. See the Digital Medial Law Project website for more information on SLAPPs and ANTI-SLAPPs in Indiana. It seems to me that Crown Castle’s inclusion of John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit against the City of Westfield amounted to a SLAPP.
Had Crown Castle (or any other similarly-situated plaintiff) included as law suit defendants parties merely testifying against it at a public hearing in California or New Mexico, where I am licensed to practice law, I would have immediately recommended filing an ANTI-SLAPP to dismiss those parties. They simply wanted their voices to be heard during the public hearing on a matter of public concern. I would have also recommend seeking attorneys fees against Crown Castle on behalf of the SLAPPed defendants.
Apologies are Due
I believe that Crown Castle and its local counsel of record, Matthew Price, Esq., Scott Leisz, Esq., and Joshua Burress, Esq. jointly owe John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher a public apology. They should also publicly commit to not making law suit defendants out of those who speak against Crown Castle at public hearings.
Sue the public agency for denying a cell site application? Fine. Let the decision stand the test of the Act and other laws. Sue the public who stand up against Crown Castle at a public hearing? Not fine.
Judge Felix’s April 15, 2016 opinion, remanding the case back for further hearings, can be found HERE.