September 4, 2020 | By Scott McCollough, McCollough Law Firm, PC | CHD | (Mr. McCollough is CHD’s attorney in its Case against the Federal Communications Commission).
“In an important win for those who are concerned about 5G and small cell wireless proliferation, on August 26, 2020 the U.S. District Court for the District of Massachusetts dismissed a lawsuit by “neutral host” provider ExteNet Systems, Inc. against the City of Cambridge, MA.
The case could have far-reaching impacts when “neutral host providers” like American Tower, Crown Castle and ExteNet try to secure approval to occupy municipal rights-of-way. Neutral host providers build wireless infrastructure and then lease space to the wireless companies (like AT&T, T-Mobile and Verizon) that provide the wireless service.
ExteNet filed several applications in Cambridge to replace utility light poles with new ones that housed equipment to be leased to AT&T. AT&T, not ExteNet, would supply the fiber connections and electric power. Cambridge’s Pole and Conduit Siting Policy requires applicants working on a proposed project with other companies to designate a lead company for the application.
“In practical terms this means the local authority can identify deficiencies at any time and/or deny the application because of a deficiency at the very end.”
The lead company has responsibility for coordinating the applications, permitting, constructions, wiring, and operation and acts as the point of contact. As such, the lead company must obtain all the necessary information and provide it to the planning commission as part of the application. In this case, ExteNet did not obtain or provide any information about how the facilities would obtain power or fiber connections, even though the policy expressly required that information. Nor was ExteNet able to provide sufficient information to demonstrate actual need for the wireless coverage that would be supported by the facility, which was another substantive Cambridge requirement.
The City denied ExteNet’s permit applications because of the missing information. ExteNet contended the City’s procedure was unlawful because it unreasonably waited until the end of the allowed period for the review of the application (shot clock) before it advised ExteNet of the deficiencies. ExteNet also challenged the substantive requirement that ExteNet provide information that only its customer (AT&T) could provide.
The district court rejected ExteNet’s procedural and substantive claims.”