Cuddy & Feder Obtains Preliminary Injunction Mandating the Installation of a Small Cell DAS Network on Telecommunications Act Grounds

Cuddy & Feder, led by Litigation Co-Chair Brendan Goodhouse and Telecommunications Chair Christopher Fisher, obtained a rare mandatory preliminary injunction on behalf of ExteNet Systems in an action in the Eastern District of New York, in which the Court directed the Village of Kings Point to grant ExteNet’s application to deploy 31 small wireless facilities in the Village.

In the case, ExteNet Systems, LLC v. Village of Kings Point, 21-cv-5772 (KAM) (ST) (E.D.N.Y. May 31, 2022), ExteNet sued following the Village’s denial of ExteNet’s application to install small cells in the Village to improve wireless services, stating claims under the Telecommunications Act (TCA) and state law. Immediately after the Village filed its Answer, ExteNet moved for a preliminary injunction seeking an order directing the Village to issue special exception and construction permits for the installation of 31 small cells pending the ultimate resolution of the case.

The Court held that ExteNet met the heightened burden to show a clear or substantial likelihood of success on the merits in order to obtain a mandatory preliminary injunction. The Court explained that ExteNet also demonstrated that it would suffer irreparable harm from the delay and denial of its application, which could not be remedied through money damages and that there was a clear likelihood of success on the merits in favor of ExteNet. In particular, the Court noted that granting ExteNet’s application would be consistent with the TCA’s national policy objective to accelerate the deployment of telecommunications technologies.

As part of the decision, the Court agreed with ExteNet’s argument that, since ExteNet sought special permits for small cells in the right of way, ExteNet was not required to satisfy the “public necessity” zoning standard applicable to wireless applicants seeking a variance in New York. The Court went on to explain that ExteNet had satisfied the requirements of the Village’s local code for a special exception permit and that even if applicable, ExteNet had also in fact satisfied the public necessity standard. The Court rejected the Village’s arguments that (1) ExteNet had not established the Village’s effective prohibition of service in violation of the TCA and (2) that the Village could deny applications for 6 small cells that would be located on private streets.

Specifically, the Court held that the TCA’s effective prohibition of service standard was inapplicable to the Village’s code and special permit review and thus could not form a legal basis for the Village to deny the application. The Court went on to note that ExteNet had, in fact, demonstrated an effective prohibition of service under federal law regardless. As to the small cells proposed on utility poles over private streets, the Court held that local permitting and private property rights are distinct issues and that issues about ownership of the streets and rights of way where 6 of the small cells would be located could not form a basis for a permit denial.

Lastly, the Court held that the balance of hardships tipped in ExteNet’s favor considering that ExteNet had cooperated with the Village Board of Trustees over a multi-year period to install the small cells and there would have been no significant negative impacts on the residents’ health or property values due to the installation.

In the same Order, the Court also rejected a motion to intervene that was filed by several residents of the Village. The Court found that there was no evidence that property values in the area would decrease due to the installation of small cells and that the residents shared an identity of interest in the outcome of the case with the Village making intervention inappropriate.

The case adds to a series of successful outcomes for Cuddy & Feder clients in TCA litigation over the past two-years, including several victories or successful settlements for ExteNet in TCA cases involving Long Island Communities. See ExteNet Systems, Inc. v. Town of North Hempstead No. 20-cv-354 (ERK)(SJB) (E.D.N.Y. June 26, 2020) (summary judgment on shot clock claim); ExteNet Systems, Inc. v. Village of Plandome, No. 19-cv-7054 (GRB)(RLM), 2021 WL 4449453 (E.D.N.Y. Sept. 29, 2021) (summary judgment overturning board’s denial of small cell application); Planned Development Alliance of Northwest Conn. v. Conn. Siting Council, No. HHB-CV21-6063734-S, 2021 WL 5277470 (Sup. Ct. N.B. Oct. 19, 2021) (upholding State Siting Council’s approval of tower facility); Verizon Wireless of the East LP v. Town of Wappinger, No. 20-cv-8600 (KMK), 2022 WL 282552 (S.D.N.Y. 2022) (granting summary judgment on shot clock claim); and New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. Town of Colonie, 20-cv-1388 (NAM/ATB) (N.D.N.Y. Mar. 31, 2022) (summary judgment on shot clock and effective prohibition of service claims, preempting local requirements as applied to replacement small cell facility).

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