Cuddy & Feder, led by the team of Telecommunications Chair Christopher Fisher and Litigation Co-Chair Brendan Goodhouse, won summary judgment on behalf of AT&T in the Northern District of New York in a significant case regarding municipal regulation of small wireless facilities.
In the case, New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. The Town of Colonie, 20-cv-1388 (NAM/ATB) (N.D.N.Y. Mar. 31, 2022), AT&T asserted several claims related to the Town of Colonie’s treatment of AT&T’s application to install a small wireless facility on a replacement utility pole. After AT&T filed its application, the Town asserted that it was incomplete because AT&T had filed its application pursuant to the Town’s right-of-way telecommunications ordinance, instead of the Town’s wireless siting ordinance which the Town claimed was applicable. AT&T argued that the Town was preempted from applying its general wireless siting ordinance, which had been drafted to regulate macro-facilities and requires significant application and consultant review fees, to small cells in the right-of-way and that per Federal Communications Commission regulations, the Town was required to act on AT&T’s application within a 60-day shot clock.
After the Town failed to act, AT&T brought suit alleging a shot clock violation, prohibition of service claims under Sections 253 and 332 of the Telecommunications Act, and sought to strike certain portions of Colonie’s fee schedule. The Town moved to dismiss arguing that AT&T’s application was incomplete because it was not filed under the Town’s general wireless siting ordinance and did not include the required fees. In response, AT&T cross moved for summary judgment on its shot clock and prohibition of service claims, arguing that (i) AT&T had filed an application for authority to install a small cell on a replacement utility pole, which was subject to the 60-day shot clock and that the Town had failed to act on that application, (ii) the Town was preempted from applying its general wireless siting ordinance, and the fees therein, to small cell applications in the right of way, and (iii) the Town’s application of its general wireless siting ordinance in this instance acted to effectively prohibit service in violation of Sections 253(a) and 332(c)(7)(B)(i)(II) of the TCA.
In its analysis, the Court noted that “regulatory concerns differ markedly between small cell facilities used to deploy 5G wireless networks and the large towers that marked the 3G and 4G deployments of the past[,]” and that the Town’s general wireless siting ordinance “fails to recognize this distinction, setting up fees and procedural steps…which are fundamentally inconsistent with the FCC’s goal of speeding up the rollout of small cells and 5G services.” The Court found that forcing AT&T to “go through a gauntlet of costly red tape” to place a small cell on a replacement utility pole “materially inhibits [AT&T’s] efforts to improve its services, and therefore, effectively prohibits the provision of personal wireless services.”
The Court, accordingly, held that the Town’s refusal to act on AT&T’s application until AT&T applied under the general wireless siting ordinance and paid the associated fees did not excuse its inaction, holding “Plaintiff is entitled to summary judgment on its claim that Defendant failed to act on its small cell application, in violation of 47 U.S.C. §. 332(c)(7)(B)(ii)…[and] Plaintiff is also entitled to summary judgment on its claims that Chapter 189 of Town Code, as applied to a single small cell proposed for co-location on an existing structure in a public-right-of-way, amounts to an effective prohibition the provision of personal wireless services in violation of 47 U.S.C. §. 332(c)(7)(B)(i)(II) and 47 U.S.C. s. 253(a).”
Finding that AT&T had been “delayed far too long, principally because the Town took an untenable position with respect to its review[,]” the Court ordered the Town to promptly issue AT&T all necessary permits and authorizations for it to install its small cell.
The Court’s decision adds to a nascent body of law regarding small cell applications since the FCC released its Third Report and Order and Declaratory Ruling in September 2018 specific to municipal small cell regulation and is likely to be used as guidance in future disputes regarding the ability of municipalities to apply ordinances and local requirements created to address older technologies to small cell deployments.
This summary judgment victory adds to the list of Cuddy & Feder’s recent telecommunications litigation wins, which include, 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 Siting Council’s approval of tower facility); and 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).