Posted by: Patricia Salkin | November 25, 2015

Second Circuit Court of Appeals Finds Denial of Tower Application Constituted an Effective Prohibition of Wireless Services in Violation of the TCA

Plaintiffs-appellees Orange County, County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless, and Homeland Towers, LLC, a tower company, sought to construct a new wireless communications tower in the Town of East Fishkill, New York. The defendants-appellants, the Town of East Fishkill and the Town of East Fishkill Zoning Board of Appeals, denied the plaintiffs’ request for a special permit, a 40–foot variance, and a wetlands/watercourse disturbance permit. The plaintiffs brought claims under the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) (the “TCA”), asserting that the Town’s denial of its application amounted to an effective prohibition of wireless services and that the Town’s decision was not supported by substantial evidence. The district court granted summary judgment in favor of the plaintiffs.

At the outset, the court first noted that the TCA’s “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user’s ability to reach a cell site that provides access to land-lines.” In making the determination of whether a significant gap exists, courts consider the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, and drop call or failure rates. Here, the Town’s conclusion that any coverage gap was de minimis was contradicted by the plaintiffs’ uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area: specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. Furthermore, it was undisputed that the gaps affect approximately 35,000 commuters on a daily basis. Finally, the plaintiffs investigated thirteen single-site options and two multisite options as alternatives to their proposed facility and determined that none of these sites would adequately remedy the coverage gap. Accordingly, no alternative sites or preexisting structures could have supported a facility that would remedy the coverage gaps. The court therefore held that the district court properly granted summary judgment in favor of Verizon and Homeland on their claim that the Town’s denial of their application constituted an effective prohibition of wireless services in violation of the TCA.

Orange County-County Poughkeepsie Limited Partnership v Town of East Fishkill, 2015 WL 6875162 (2nd Cir. CA 11/10/2015)


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