Mintz won a motion to dismiss an Americans with Disabilities Act (ADA) complaint against client Horizon Tower Limited, LLC and several wireless providers. 

The case, Allen v. Horizon Tower, et al., filed in the United States District Court for the District of Idaho, was one of several such complaints filed nationally by anti-wireless groups seeking removal of existing wireless installations. The plaintiff alleged that exposure to radiofrequency (RF) emissions from Horizon’s cellular tower caused him to suffer health problems. Claiming a violation of Title III of the ADA, which applies to physical places of public accommodation, the plaintiff requested the defendants move the tower, or, if not feasible, take other measures to minimize his symptoms. 

Horizon and the other co-defendants moved to dismiss, arguing that because the tower and wireless facilities were operating below the Federal Communications Commission’s (FCC) RF emissions rules, the FCC’s rules control over any such ADA claim and that the claims failed as a matter of law under the ADA.  Before even reaching the FCC argument, the Court granted the motion to dismiss, finding that the Complaint failed to state a claim under Title III of the ADA because the defendants’ wireless equipment installation is not considered a public accommodation as a matter of law.

The Court rejected the plaintiff’s theory, holding that a cellular network is not a physical place, in contrast to traditional public accommodations such as restaurants and movie theaters. The Court relied on precedent from the 9th Circuit Court of Appeals, which established that Title III only applies to websites if there is a nexus between an inaccessible website and a physical place of public accommodation, such as a brick-and-mortar store. It likened defendants’ wireless installation to a website in that they can only be accessed using electronic devices, not by entering a physical space.

Mintz represented Horizon Tower with a cross disciplinary team led by Members Scott Thompson and Todd Rosenbaum.