N.D.N.Y. Holds City’s Unreasonably Delay Acting On Application Violated the Telecommunications Act

Plaintiff Upstate Cellular Network (“Plaintiff”), d/b/a Verizon Wireless, filed suit alleging defendants, the City of Auburn (“City”), and its City Council, Planning Board, Zoning Board of Appeals, and Code Enforcement Officer (collectively “Defendants), 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. ( “TCA”) and the Federal Communications Commission’s (the “FCC”) orders, rules and regulations.  The instant decision came upon competing motions for summary judgment.

Under the provisions of the TCA and related FCC Orders, a municipality has 150 days to review an application and make its final determination, consistent with local law, the TCA and federal rules and regulations.  Defendants argue that the City could not accept Plaintiff’s application as it was received during a moratorium on the acceptance and review of applications for telecommunication facilities while the Town revised its regulations.  Thus, Defendants claim the application was never “duly filed,” and the TCA’s 150-day timeframe never began to run.  However, the Court held that while the FCC recognizes the need of local municipalities to update their zoning regulations, a 2014 FCC Order expressly provided that the 150-day time “runs regardless of any moratorium.”  Thus, the City failed to rebut the presumption that its failure to review the application within 175 days of receipt was unreasonable, and the Court held that this constituted a violation of the TCA.

Conversely, Plaintiff demonstrated that Defendants’ actions prevented it from closing a significant gap in service, and effectively prohibited service. Plaintiff’s application had significant information, including Radio Frequency propagation maps, that demonstrated a gap in its service in the City and related capacity deficiencies, including 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. The Court found Defendants’ persistent and affirmative violation of the text and spirit of the TCA should result in its relinquishment of its right to obtain further review of Plaintiff’s application, and the Court issued a mandatory injunction directing Defendants to approve Plaintiff’s application and issue all applicable permits and approvals.

The case was Upstate Cellular Network v City of Auburn, 257 F.Supp.3d 309 (N.D.N.Y 2017).

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