Posted by: Patricia Salkin | July 2, 2017

Fed. Dist. Court in NY Finds City’s Unreasonably Delay Constituted a Violation of the Telecommunications Act

Plaintiff Upstate Cellular Network, doing business as Verizon Wireless brought this action asserting that the defendants, the City of Auburn, the City Council of the City of Auburn, New York, Planning Board of the City of Auburn, New York, Zoning Board of Appeals of the City of Auburn, New York and Brian Hicks, Code Enforcement Officer of the City of Auburn, New York, improperly failed to act on its application to construct and operate a wireless telecommunications site in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332 et seq. (the “TCA”) and the Federal Communications Commission’s (the “FCC”) orders, rules and regulations.
Defendants argued that because its moratorium began on March 3, 2016, the City could not accept the Application received by Verizon on March 4, 2016. As such, they argued that the 150 day timeframe never began because the Application was not “duly filed”. The court noted that while the FCC recognizes the need of local municipalities to update their zoning regulations, the 2014 FCC Order expressly provided that the 150 day time “runs regardless of any moratorium.” Thus, under the provisions of the TCA and FCC Orders, the local municipality has 150 days in which to promptly review an application and make its final determination, consistent with local law, the TCA and federal rules and regulations. Here, in 175 days, Auburn did not review or consider Verizon’s Application at all, much less complete its review. Accordingly, Defendants failed to rebut the presumption that their delay was unreasonable, and their actions constituted a failure to act or unreasonably delay in violation of the TCA.
Verizon next argued that the actions of the defendants prevented it from closing a significant gap in service, and therefore, effectively prohibited service. The Application provided significant information, including Radio Frequency propagation maps, which clearly demonstrated a significant gap in its service in the City of Auburn and related capacity deficiencies, an area along Franklin Street and Route 5 which included major thoroughfares, residences, businesses and schools. Furthermore, the Application established that there was no less intrusive means to fill the significant gap in coverage other than to construct and operate a wireless facility at the Site. As such, the court found that plaintiff was entitled to summary judgment concerning its effective prohibition claim.
The court found that defendants’ persistent and affirmative violation of both the text and spirit of the TCA should result in its relinquishment of its right to obtain further review of plaintiff’s Application. The court therefore issued a mandatory injunction directing defendants to approve plaintiff’s application and issue all applicable permits and approvals.

Upstate Cellular Network v City of Auburn, 2017 WL 2805820 (NDNY 6/28/2017)

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