New Cingular Wireless PCS LLC v. Connecticut Siting Council et al

Filing 44

ORDER denying 32 Motion to Strike. Signed by Judge Warren W. Eginton on 8/20/12. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NEW CINGULAR WIRELESS PCS, LLC

11cv1502 (WWE)

v.
THE CONNECTICUT SITING COUNCIL
et al.,
ORDER ON MOTION TO STRIKE
This is an action presenting a claim for effective prohibition of wireless services
under the Communications Act of 1934, as amended by the Telecommunications Act of
1996. The parties have submitted cross motions for summary judgment. Defendants
have moved to strike certain evidence submitted by plaintiff in support of its motion for
summary judgment.
In evaluating an “effective prohibition” claim, “district courts are free to consider
additional evidence” not in the administrative record. Second Generation Props., L.P. v.
Town of Pelham, 313 F.3d 620, 629 (1st Cir.2002); see also Nat'l Tower, LLC v.
Plainville Zoning Bd. of Appeals, 297 F.3d 14, 24 (1st Cir.2002) (“On the effective
prohibition issue, district courts may take evidence beyond the record.”). Further, much
of the evidence that defendants seek to strike are publicly filed documents of which the
Court may take judicial notice.

Accordingly, the motion to strike (doc. # 32) is

DENIED.
Dated this 20th day of August, 2012 at Bridgeport, Connecticut.
______/s/____________________________
Warren W. Eginton
Senior United States District Judge
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