Second Circuit Holds Denial of Tower Application Was An Effective Prohibition of Wireless Services in Violation of the TCA

Plaintiffs-appellees Orange County, County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless, and Homeland Towers, LLC, sought to build a wireless communications tower in the Town of East Fishkill. Defendants-appellants, Town of East Fishkill and the Town of East Fishkill Zoning Board of Appeals (“ZBA”), denied plaintiffs' request for a special permit, a 40–foot variance, and a wetlands/ watercourse disturbance permit. Plaintiffs brought claims under the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) ( “TCA”), claiming the Town's denial was an effective prohibition of wireless services and unsupported by substantial evidence. The district court granted summary judgment for the plaintiffs.

On appeal, the Court first noted that the TCA's “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines.” In determining whether a significant gap exists, courts consider the gap's physical size, the number of wireless users affected, the location of the gap, and drop call or failure rates. Here, the Town's conclusion that any coverage gap was de minimis was contradicted by the plaintiffs' uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area: specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. It was also undisputed that the gaps affect roughly 35,000 commuters a day. Finally, plaintiffs investigated thirteen single-site and two multisite alternatives and determined that none would adequately remedy the gap. Thus, no alternative sites or preexisting structures could have supported a facility to remedy the coverage gaps. The Court therefore held that the district court properly granted summary judgment to Plaintiffs that the Town's denial of their application was an effective prohibition of wireless services in violation of the TCA.

The case was Orange Cty.--Cty. Poughkeepsie Ltd. P'ship v. Town of E. Fishkill, 632 F. App'x 1 (2d Cir. 2015).

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