Posted by: Patricia Salkin | October 4, 2017

Fed. Dist Court of MA Holds Plaintiff Fell Within the “Zone of Interests” Protected by the Telecommunications Act

In this case, Plaintiff Varsity Wireless, LLC challenged the Town of Boxford’s denial of Varsity’s application for a special permit and dimensional variances for the construction and operation of a wireless communication facility. Specifically, Varsity sued the Town of Boxford, Boxford Zoning Board of Appeals, and three individual Board members, alleging that the denial violated Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332 (c) (7) (the “TCA”). The Magistrate Judge recommended that the motion for summary judgment be denied without prejudice. As an initial matter, the Magistrate found that “Varsity has standing to bring this action under the TCA,” but the parties did not submit the complete record that the Board considered in its decision to deny Varsity’s application for a variance.

On appeal, defendants argued the TCA did not authorize Varsity to sue because Varsity was not a telecommunications provider and had no property interest in the building site, as it assigned the lease to Varsity Wireless Investors, LLC, another company. Here, however, the plaintiff submitted an affidavit from Christopher J. Davis, manager of Varsity and Varsity Investors, which held the lease for the site, stating that Varsity was authorized to act on behalf of Varsity Investors. As such, the court found Varsity’s interests fell within the “zone of interests” protected by the TCA. The court therefore upheld the Magistrate’s recommendation to decide the issues raised in the plaintiff’s motion for summary judgement without prejudice.

Varsity Wireless, LLC v Boxford Zoning Board of Appeals, 2017 WL 4220575 (D MA 9/22/2017)


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