• On August 27, 2010, the US District Court for the Southern District of California denied the City of San Diego’s motion to dismiss various claims brought by Verizon Wireless, AT&T (New Cingular Wireless), American Tower Corporation, and Crown Castle Company. The plaintiffs challenged San Diego’s denial of their applications to renew conditional use permits for various monopoles in the city. They alleged that the “City delayed decisions on the applications for years,” and that the applications were “[u]ltimately ... denied for failing to comply with the City’s current requirements,” notwithstanding that the city allegedly “has approved permits for and granted extensions for monopoles or monopole-like structures in the City under nearly identical circumstances[.]” The court denied the city’s motion to dismiss in its entirety, and held that the carrier plaintiffs have stated claims for relief on the following theories: unreasonable discrimination under 47 U.S.C. § 332(c)(7)(B)(i), violations of California Code of Civil Procedure § 1094.5 (state and local zoning laws), unlawful barrier to competition under 47 U.S.C. § 253, and violations of the Equal Protection Clause of the United States Constitution, California’s Permit Streamlining Act, and the Dormant Commerce Clause. The court ordered the city to answer the pending complaints within 10 days. In re Cell Tower Litig., Nos. 07-cv-399 BEN (WVG), et al. (S.D. Cal.).
  • On August 25, 2010, the US Court of Appeals for the Second Circuit denied an appeal by Global NAPs and several related entities that challenged the entry of summary judgment by the US District Court for the District of Connecticut in favor of Southern New England Telephone (SNET) on its claims to recover tariffed charges from Global NAPs for special access services. The underlying dispute arose when SNET demanded payment for the provision of the special access circuits; Global NAPs demurred, insisting that the parties’ interconnection agreement (ICA) required SNET to provide those facilities at its cost. The Second Circuit rejected Global NAPs’ argument that the federal district court lacked subject matter jurisdiction to resolve the dispute because it required the interpretation of the parties’ ICA. The court held that SNET’s claim for recovery under its federal special access tariff was enough to vest subject matter jurisdiction in the federal court. The court distinguished opinions from other courts holding that actions – as opposed to defenses – that require the interpretation of an ICA should first be heard by the state public utility commission that approved the ICA. The court found that this case presented a different question which it answered in the negative: “whether a district court, presented with a case involving a federal claim properly within its jurisdiction in which the defendant raises a question of ICA interpretation as a defense, loses federal jurisdiction because the ICA issue was not presented to a state PUC.” The appeals court also held that the district court did not abuse its discretion in granting default judgment against the Global NAPs entities “for failure to comply with various discovery orders related to their corporate structure and financial information.” Southern New England Tel. Co. v. Global NAPs Inc., No. 08-4518-cv (2d Circuit).