Posted by: Patricia Salkin | October 18, 2017

Fed. Dist. Court in NY Holds City’s Failure to Act on Provider’s Application Effectively Prohibited Wireless Service in City in Violation of TCA

Plaintiff Upstate Cellular Network, d/b/a  Verizon Wireless,  claimed 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. In this case, plaintiff sought declaratory judgment and injunctive relief.

As to Verizon’s failure to act claim, Defendants argued that as its moratorium began on March 3, 2016, the City could not accept the Application received by Verizon on March 4, 2016. Thus, Defendants contended, the 150 day shot clock never began because the Application was not “duly filed”. The court found that even though local moratoria on applications might be necessary and advisable to permit a municipality to update applicable zoning regulations, the moratorium did not stop the shot clock period, regardless of whether an application was received before or after the moratorium was enacted. Here, it was not disputed that Verizon’s application was not processed, reviewed or otherwise acted upon by Auburn within the shot clock period. Accordingly, the court held the City was presumed to have unreasonably delayed Verizon’s Application in violation of Section 332 of the TCA. Furthermore, Defendants were found to have completely failed to rebut the presumption that their delay was unreasonable.

Verizon next alleged that the actions of the defendants prevented it from closing a significant gap in service, and therefore, effectively prohibited service. The record reflected that the Application provided significant information, such as Radio Frequency propagation maps that clearly demonstrated a significant gap in its service in the City of Auburn and in an area along Franklin Street and Route 5 which includes major thoroughfares, residences, businesses and schools. Additionally, 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. Because of this, the court concluded that defendants failure to consider Verizon’s Application had the effect of prohibiting wireless service within the City of Auburn in violation of the TCA. Accordingly, the court held that defendants’ actions in refusing to act on Verizon’s Application violated the TCA and the corresponding FCC Orders.

Upstate Cellular Network v. City of Auburn, 257 F.Supp.3d 309 (NDNY 6/28/2017)

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