Making a major career move in the middle of a global pandemic is not for the faint of heart. But that’s exactly what telecom attorney Scott Thompson decided to do last July when he made the move to Mintz.
After spending 27 years at the same firm and working in the same physical building, Thompson said he was drawn to Mintz’s established Technology, Communications & Media Practice, where he said his own experience and focus areas were complementary to the firm’s expertise in policy and spectrum matters. He now serves as Chair of the firm’s Communications Infrastructure Litigation Practice.
“It was a big move for me, but I thought it was an important one, and important enough to do during the pandemic,” said Thompson, who noted he has been to Mintz’s physical office building only once since joining the firm to drop off boxes. But that lack of physical presence hasn’t changed his practice as much as might be expected.
“My practice has always been nationwide, so for me this has not been a huge change, because my clients have always been all over the country,” said Thompson. “I’ve been used to working remotely and with remote teams, but I think the pandemic has thrust the legal profession and the nation forward ten years in the course of three months technologically in terms of what it means to do remote work.”
For Thompson, that has meant things like presenting oral arguments using video conferencing technology, which he said has worked out just fine. Interestingly, such dynamics highlight the importance of telecommunications infrastructure, an industry Thompson has spent nearly three decades fighting for.
Coming out of law school in the recessionary early 1990s, Thompson joined a boutique communications law firm that would later merge with a national firm. His early focus was on cable television franchising, which required him to work with local governments and deal with local regulations within federal and state overlays. When the Telecommunications Act of 1996 was adopted, Thompson worked extensively on new telecommunications right-of-way ordinances to help new telecommunications competitors deploy networks. That work led him to litigate several early, seminal cases under Section 253 of the Act, which limits the power of local governments to regulate and interfere with the deployment of telecom equipment.
About a decade into his expanding practice, Thompson began working with a client who was deploying distributed antenna systems, a career segue that launched him into the wireless industry, where he has spent the past 20 years working on behalf of service providers and infrastructure companies to ensure they are able to build their networks efficiently.
“The cases I litigated in the late 1990s and early 2000s on behalf of fiber providers are identical to the fights we’re having now,” Thompson said. “I litigated cases about what the fee could be for fiber deployment, arguing that it had to be cost-based and that the city costs must be limited. That is precisely the situation that we are now facing after the FCC’s declaratory ruling in 2018 held that cities can only charge cost-based fees.”
Thompson said he thinks the tension between municipalities and those wanting to build infrastructure in their rights of way is not unique to wireless. Voices of opposition are sometimes the loudest in the room when it comes to all kinds of projects, from siting wireless infrastructure to building a commercial building, he said.
“Everybody wants their wireless coverage, or alternatively everybody wants their cable television, or everybody likes the idea of competition for broadband, but in order to have that you need to have infrastructure,” Thompson said. “You need to have networks, and those networks have to go somewhere, whether it’s fiber or small cells or traditional macro sites. The reality is that somebody is going to be opposed to that, and the people who are opposed to it, even if they are a minority, are the vocal minority that show up for your local hearing.”
Over the years, he has worked for clients nationwide litigating tower siting denials in trial courts, appellate courts, and even the U.S. Supreme Court. In perhaps his most high-profile case, Thompson was counsel of record for T-Mobile in T-Mobile South LLC v. City of Roswell, Georgia before the Supreme Court in 2014. In that case, the Court established the scope of a local government’s obligation to provide a written denial with reasons when it denies a wireless facilities application. He also pointed to T-Mobile Central LLC v. The Charter Township of West Bloomfield, in the Sixth Circuit, and T-Mobile v. City of Anacortes, in the Ninth Circuit, as noteworthy cases in which he has served as counsel. More recently, Thompson served as counsel for Crown Castle in Crown Castle v. Pa PUC, before the Pennsylvania Supreme Court in a case that successfully reversed a Pennsylvania Public Utilities Commission order that revoked DAS providers’ status as certified public utilities for purposes of deployment under Pennsylvania law.
While court cases, and especially victories, are satisfying for Thompson, just as important to him is the opportunity to work on behalf of the industry and clients to educate municipalities and ensure communications networks are able to be built, from siting macro towers to ensuring pole attachments are not lumped in with macro antennas during the decision-making process at the local level.
“The thing that I still really enjoy and think is as important as those precedent-setting cases is the day-to-day work with companies to develop strategies – legal and practical – to get their networks deployed without having to go to court,” said Thompson. “I think that’s as important and as enjoyable as the high-profile court wins.”
Often, said Thompson, the disconnect between the industry and state or local government occurs because communications technology and service has developed faster than the law.
“Often the law was not written with this technology in mind,” said Thompson. “So we are helping clients articulate to local jurisdictions, to courts, to regulators how the client’s technology and networks fit or don’t fit into those existing legal and regulatory structures.”
“There are local governments that will continue to push the limits of their authority,” Thompson predicted. “Certainly, the issue of enforcing the FCC’s ruling that right-of-way fees have to be limited to the local government’s reasonable costs is going to be a big issue. I expect we’re going to see a lot of local governments that will try to embed into their right-of-way fees a whole host of costs in order to justify higher fees that are not appropriate.”
Thompson also expects opposition to stem from fears related to health concerns.
“There’s no doubt that local governments can’t regulate based on concerns about radio-frequency emissions. That’s very clear,” he said. “The issue is that local governments nonetheless have people saying to them, vigorously, that they are worried about 5G. It’s a communications and education challenge for the industry.”
Outside of the courtroom, Thompson applies his competitive nature to bicycle racing, a hobby that grew out of a decision he made early in his career not to spend time sitting in Washington, D.C., traffic. Riding his bike to and from work every day spawned a love of bicycling that propelled him to compete in races, including national championships, throughout the years.