UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Industrial Communications

and Electronics, Inc. et al.

v. Civil No. 07-cv-082-JL

Town of Alton,

David Slade, and Marilyn Slade

PROCEDURAL ORDER

This is a challenge to the Town of Alton’s decision denying

the plaintiffs (collectively, “ICE”) the variance necessary to

construct a 120-foot cellphone tower. ICE claims that the

decision violates the Telecommunications Act of 1996 (“TCA”) in

that it was unsupported by substantial evidence in a written

record, see 47 U.S.C. §§ 332(c)(7)(B)(iii), and that it has the

effect of prohibiting the provision of wireless services, see id.

§ 332(c)(7)(B)(i)(II). ICE commenced the action in March 2007. 

About four months later, David and Marilyn Slade, who own

property abutting the site of the proposed tower, were granted

leave to intervene. See Fed. R. Civ. P. 24. At that point, a

scheduling order was in place which, in relevant part, imposed a

discovery cutoff of January 15, 2008, and expert disclosure

deadlines of October 1, 2007, and November 15, 2007, for the

plaintiffs and the defendant, respectively.1

Shortly after the Slades were granted leave to intervene, 1

ICE filed an assented-to motion to extend certain other deadlines

in the scheduling order.

Case 1:07-cv-00082-JL Document 97 Filed 07/19/11 Page 1 of 8
As contemplated by the modified scheduling order, ICE and

the Town filed cross-motions for summary judgment on ICE’s

effective prohibition claim on May 19, 2008, objections on June

16, 2008, and replies on June 30, 2008. The Slades, who had been

represented by counsel since they moved to intervene, did not

make any summary judgment filings of their own, whether in the

form of a response to ICE’s summary judgment motion, a joinder in

the Town’s motion for summary judgment, or otherwise. After

hearing oral argument on the summary judgment motions on March

26, 2009, the court denied them without prejudice to

reinstatement in response to encouraging statements from counsel

for ICE and the Town about the prospect of settling the case.

Settlement negotiations continued throughout the spring and

summer of 2009, with counsel for ICE and the Town periodically

reporting their progress to the court. In response to one of

those reports, the Slades--who had filed nothing of substance in

the case since they intervened--filed a memorandum expressing

their opposition to any settlement and asking the court to hold a

hearing on ICE’s effective prohibition claim. The Slades stated

that the Town had already “presented appropriate arguments and

supporting evidence that should lead the Court to uphold the

local decision” to deny the variance for the tower.

Eventually, though, in March 2010, ICE and the Town filed an

agreement for judgment, to which the Slades purported to object. 

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After receiving briefing from all parties on the Slades’ right to

prevent the entry of judgment, the court approved the agreement

for judgment (with one minor modification). Indus. Commc’ns &

Elecs., Inc. v. Town of Alton, 2010 DNH 081. On the Slades’

appeal, however, the court of appeals recently vacated the

judgment, ruling that “the Slades are entitled to resist the

entry” of a judgment on ICE’s claims “unless a violation of the

[TCA] is proven.” Indus. Commc’ns & Elecs., Inc. v. Town of

Alton, ___ F.3d ___, 2011 WL 1887334, at *3 (1st Cir. May 19,

2011). The court of appeals observed that ICE “claims to be

entitled to relief under the [TCA]; all it now needs to do is

prove it.” Id. at *4.

To that end, ICE and the Town have filed a “joint motion for

an expedited hearing” on ICE’s motion for summary judgment on its

effective prohibition claim. In the motion, the Town expressly

admits a number of facts material to that claim, including that

the Town’s failure to permit a 100-foot tower at the proposed

site would amount to an effective prohibition under the TCA. The

court held an off-the-record telephone conference on the joint

motion at which counsel for the Slades agreed that (1) the court

would hear oral argument on ICE’s summary judgment motion on

August 24, 2011, and (2) he would file a “formal response” by

June 24, 2011. Before that date arrived, however, counsel for

the Slades had moved to withdraw and new counsel had filed

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appearances on their behalf, together with a motion asking for

additional time to respond to the joint motion for hearing. That

relief was granted in part, and the Slades have since filed an

objection to the joint motion. The court held an on-the-record

telephonic hearing on the joint motion on July 14, 2011.

In the Slades’ objection, they argue principally that they

“are entitled to the same discovery, briefing, and presentation

of evidence as any defending party in this type of case, and

should not be required to make their case on an expedited basis.” 

This argument ignores the fact that the Slades did have an ample

opportunity to engage in discovery and to submit briefing and

evidence in connection with summary judgment, but, so far as the

court can tell, elected not to avail themselves of that

opportunity. Again, the Slades were allowed to intervene in this

action on August 2, 2007, more than three months before the

defendant’s expert disclosure deadline and more than five months

before discovery closed on January 15, 2008, and have been

represented by counsel the whole time, yet appear not to have

taken any discovery, designated any experts, or filed anything of

substance on the merits of ICE’s claims. And this appears to

have been a conscious decision, in light of the Slades’

statement, quoted above, that the Town had “presented appropriate

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arguments and supporting evidence” in defending against ICE’s

effective prohibition claim.2

Thus, insofar as the Slades object to this court’s

conducting a hearing on ICE’s motion for summary judgment so they

may “obtain additional evidence and expert opinion on issues

pertaining to the ‘effective prohibition’ claim,” that objection

is overruled. The Slades will not be permitted to engage in

discovery or to designate experts more than three and a half

years after discovery closed or to submit briefing or evidence in

response to ICE’s summary judgment motion more than three years

after that motion was filed. 

Indeed, when asked to identify the basis for that relief

during the most recent telephonic hearing, counsel for the Slades

candidly admitted that there was none, but that this court’s

discretion would allow for it. Assuming this is true, which is

doubtful (permitting discovery or summary judgment filings after

During the telephonic hearing, there was some discussion of 2

the Town’s willingness, expressed during the early stages of this

case, to “stand shoulder-to-shoulder” with the Slades in

defending it. Counsel for the Town explained, however, that this

willingness never extended to one of the issues crucial to the

effective prohibition claim, namely, the existence of a

substantial gap in wireless coverage: the Town has always

believed, contrary to the Slades, that such a gap did in fact

exist. Moreover, the Slades have always recognized that (as

ultimately occurred here) the Town’s position on ICE’s claims

might change--indeed, that was the very premise of their motion

to intervene. So the Slades would not have been justified in

relying on the Town to “make their case” for them, and they have

not argued to the contrary.

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expiration of the deadlines set forth in the discovery plan would

seem to demand the “good cause” required by Rule 16(b)(4), and

that, in turn, demands a diligence which the Slades have not

displayed, see, e.g., Steir v. Girl Scouts of the USA, 383 F.3d

7, 12 (1st Cir. 1994)), this court can see no reason to exercise

its discretion to that effect here. As just noted, the Slades

have not identified any.

New counsel for the Slades did, however, identify personal

circumstances during the telephonic conference that support a

brief continuance of the summary judgment hearing, to September

21, 2011 at 10:00 a.m. Furthermore, the court agrees with two of

the points in the Slades’ objection to the motion for hearing: 

first, that this court cannot treat the Town’s admissions in that

filing as binding on the Slades and, second, that the court

cannot treat ICE’s effective prohibition claim as arising out of

the Town’s denial of a variance for a 100-foot tower, when the

Town in fact denied a variance for a 120-foot tower.3

Finally, the Slades’ objection notes that they acquired an

additional parcel within the Town during the pendency of their

appeal, so “additional evidence should be permitted regarding the

As this court noted during the telephonic hearing, the 3

Slades’ position on this second issue could lead to an order

entitling ICE to build a tower 20 feet higher than either ICE or

the Town believes is necessary at this point, should ICE prevail

on its effective prohibition claim. Yet all parties agree that,

even in that instance, this court would have the discretion to

find that a 100-foot tower is an appropriate remedy. 

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feasibility of locating a tower on this property.” But the

Slades have yet to explain how their recent acquisition of this

property--as apart from its existence, which has presumably been

known to the Slades since the outset of this litigation if not

before, and therefore could have been addressed in a timely

response to ICE’s summary judgment motion--affects the

feasibility analysis. If the Slades want to try to make that

showing (perhaps, for example, the property’s prior owner

absolutely refused to allow the tower to be built there, so it

was not a feasible location until the Slades bought it), then

they may file a brief to that effect on or before September 9,

2011, and ICE may file a response to that brief on or before

September 16, 2011 (no reply or surreply shall be permitted). 

For the foregoing reasons, the joint motion (document no.

90) for an expedited hearing on ICE’s motion for summary judgment

is GRANTED in part and DENIED in part, as explained herein. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 19, 2011

cc: Steven E. Grill, Esq.

Anthony S. Augeri, Esq.

Katherine Blackall Hiller, Esq.

Robert D. Ciandella, Esq.

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Robert M. Derosier, Esq.

Christopher Cole, Esq.

Karyl Roberts Martin, Esq.

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