Posted by: Patricia Salkin | July 25, 2017

Fed. Dist. Court of AZ Finds Plaintiff Pled Sufficient Factual Allegations to Support Article III Injury in Fact in TCA Case

Sun State Towers, LLC sought to construct a personal wireless service tower in Coconino County for lease to Verizon Wireless.  Sun State leased a site to construct the tower and entered an agreement that allowed Verizon to install its equipment on it. Sun State’s application for a conditional permit to build the tower was approved by the Coconino County Planning and Zoning Commission; however, it was later denied upon an appeal from the Navajo Tribal Utility Authority (“NTUA”).  The NTUA argued that a tower on tribal land was already available for collocation. The Commission’s written denial of Sun State’s application stated that collocation was preferable to constructing a new tower, and that the proposed tower would obstruct the view of the San Francisco Peaks. Sun State then filed this Telecommunications Act (“TCA”) Complaint against the County.
The court first noted that the plain language of the TCA indicated that Sun State had a cause of action under the effective prohibition provision. Section 332 of the TCA explicitly provided a broad right of action to “any person adversely affected by any final action or failure to act by a state or local government” that restricted wireless services. The court found that Sun State asserted factual allegations sufficient to establish that it would suffer actual and concrete economic injuries by the Commission’s denial of the permit. Here, Sun State had already executed an agreement to lease the subject site for the sole purpose of constructing the wireless tower and would be forced to bear the cost of the lease until it expired. Furthermore, Sun State alleged that Verizon and it inspected other sites, including potential collocation at the NTUA, but determined that the property Sun State leased was the only one that would sufficiently address Verizon’s wireless coverage gap in a reasonable timeframe on commercially feasible terms. Consequently, Sun State argued it would be foreclosed from leasing a wireless tower to Verizon and obtaining the accompanying financial benefits if the County did not reconsider Sun State’s permit application to build a wireless tower on the property. The court therefore denied that County’s motion to dismiss.
 Sun State Towers LLC v County of Coconino, 2017 WL 2984297 (D. AZ 7/13/2017)

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