ExteNet Systems, Inc. v. Village of Flower Hill et. al.
Filing
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MEMORANDUM and ORDER: The Villages motion 31 for summary judgment is granted and ExteNets motion 34 is denied. The Clerk shall enter a judgment dismissing the case. See attached Memorandum and Order for details. Ordered by Judge Frederic Block on 7/29/2022. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EXTENET SYSTEMS, INC.,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 19-CV-5588-FB-VMS
-againstVILLAGE OF FLOWER HILL and
FLOWER HILL VILLAGE BOARD OF
TRUSTEES,
Defendants.
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Appearances:
For the Plaintiff:
CHRISTOPHER B. FISHER
BRENDAN GOODHOUSE
Cuddy & Feder LLP
445 Hamilton Avenue, 14th Floor
White Plains, New York 10601
For the Defendants:
EDWARD M. ROSS
JUDAH SERFATY
Rosenberg Calica & Birney LLP
100 Garden City Plaza, Suite 408
Garden City, New York 11530
BLOCK, Senior District Judge:
In this action under the Telecommunications Act of 1996 (“the Act”), 47
U.S.C. §§ 251-61, 332(c)(7), ExteNet Systems, Inc. (“ExteNet”), seeks judicial
review of a decision of the Flower Hill Village Board of Trustees (“the Village” or
“the Board”) denying ExteNet’s application for a permit to install wireless
infrastructure on public rights-of-way in the village.
Both parties move for
summary judgment pursuant to Federal Rule of Civil Procedure 56.
following, reasons the Village’s motion is granted and ExteNet’s is denied.
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For the
I
The following facts are taken from the pleadings and the parties’ Rule 56.1
statements. Except where noted, they are undisputed.
ExteNet builds and operates telecommunications infrastructure, including
“small wireless facilities” that house low-power antennas to improve network
connectivity. It operates under a Certificate of Public Convenience and Necessity
(“CPCN”) from the New York State Public Service Commission.
As their name suggests, small wireless facilities are substantially smaller than
the large, freestanding cellular towers traditionally used by providers. They are
about the size of a backpack and, under regulations promulgated by the Federal
Communications Commission (“FCC”), are mounted on structures (such as utility
poles or buildings) no more than 50 feet high or 10% taller than adjacent structures,
whichever is greater. See 47 C.F.R. § 1.6002(l)(1).
For approximately seven years, ExteNet has been under contract with Verizon
Wireless, a major wireless provider, to build and operate small wireless facilities
throughout Long Island. The stated goal of the contract is to improve coverage of
Verizon’s 4G LTE network.1 In broad terms, Verizon identifies a deficiency in its
network and asks ExteNet to design a solution that will provide a specified signal
4G LTE stands for “fourth-generation long-term evolution,” a wireless
standard that improves the capacity and speed of a carrier’s network.
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strength over a specified area.
Pursuant to its CPCN, ExteNet must secure
permission from the local authorities before beginning installation.
In 2016, Verizon identified the area around the Village of Flower Hill as
having insufficient 4G LTE service and asked ExteNet to design and install a
network of 66 small wireless facilities, eighteen of which would be located within
the Village. Verizon estimated that the network would provide a signal strength of
-85 decibel-milliwatts (dBm) to 90% of the area under consideration.
ExteNet first filed a permit application for one small wireless facility in May
2017. Shortly thereafter, the Village imposed a moratorium on such applications
while it considered an ordinance governing them.
In March 2019 the Board
adopted Article VIII to Chapter 209 of the Village Code (“Article VIII”), which now
regulates the approval process for small wireless facilities.
In the meantime, ExteNet had filed permit applications for the eighteen small
wireless facilities to be located within the Village in late 2018 and early 2019.
ExteNet proposed mounting the facilities on ten new utility poles, two existing poles
and six replacement poles. At a meeting with ExteNet in April 2019, Village
officials expressed a preference for more “decorative” poles disguised as streetlights
and fewer utility poles. In response, ExteNet submitted a revised proposal for
eleven streetlights, two existing poles and five replacement poles.
The Board held public hearings on ExteNet’s application on May 6 and June
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3, 2019. Opposition to the proposal, which came from both members of the Board
and residents, focused on the lack of need for improved 4G LTE coverage, adverse
affects on Village’s aesthetic and concerns about exposure to radio waves. In
response, ExteNet offered to reduce the height of the mounting structures from 30
to 20 feet and to work with a consultant on an aesthetically acceptable streetlight
design. Nevertheless, a third public meeting on July 1, 2019, revealed continued
opposition.
Later in July, ExteNet hosted a public forum to discuss and identify designs
for the decorative streetlights. No consensus emerged, with several participants
rejecting the possibility of any acceptable design and others expressing a preference
for existing utility poles. ExteNet then submitted yet another alternative using one
or two streetlights, one flagpole, three existing poles, six or seven new poles and six
replacement poles.
At a fourth public meeting on August 5, 2019, ExteNet
described the first proposal as focusing on utility poles, the second on decorative
poles, and the third as a hybrid of the two.
At a public meeting held on September 3, 2019, the Board voted on ExteNet’s
application and unanimously denied it. It then approved a written statement of
findings prepared by the Village Attorney and entered them into the record. As
grounds for the denial, the statement of findings cited: “(1) the significant adverse
aesthetic and property values impacts of the 18 nodes permeating the tiny Village;
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(2) there is no gap in wireless coverage for Verizon and no need to justify the
significant adverse impacts; and (3) ExteNet’s abject refusal to submit for
consideration an actual fixed plan for each of the 18 wireless nodes and poles, instead
offering multiple different plans, with different pole/node locations and
configurations, abject refusal and failure to provide onsite photo simulations for each
of its proposed nodes, and refusal to comply with the public notice provisions of the
Village Code which further required denial of the application.” Defs. 56.1 Stmt.
¶ 13.
This action followed.
II
A.
The Act’s Preemptive Effect
The Act declares that “[n]o State or local statute or regulation, or other State
or local legal requirement, may prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate telecommunications service.” 47
U.S.C. § 253(a). It then provides, however, that “[n]othing in this section affects
the authority of a State or local government to manage the public rights-of-way . . . ,
on a competitively neutral and nondiscriminatory basis[.]” Id. § 253(c). These
declarations are repeated —perhaps unnecessarily— later in the Act:
(A)
General authority
Except as provided in this paragraph, nothing in this chapter shall limit
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or affect the authority of a State or local government or instrumentality
thereof over decisions regarding the placement, construction, and
modification of personal wireless service facilities.
(B)
Limitations
(i)
The regulation of the placement, construction, and modification
of personal wireless service facilities by any State or local
government or instrumentality thereof—
(I)
shall not unreasonably discriminate among providers of
functionally equivalent services; and
(II)
shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.
Id. § 332(c)(7).
B.
Substantial Evidence
In addition to banning prohibitions (or effective prohibitions) and
discrimination, the Act requires that any denial of an application “to place, construct,
or modify personal wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii).
Substantial-evidence review is a “deferential standard, and courts may neither
engage in their own fact-finding nor supplant the Board’s reasonable
determinations.” Omnipoint Comm’ns, Inc. v. City of White Plains, 430 F.3d 529,
533 (2d Cir. 2005) (internal quotation marks and alterations omitted). “Substantial
evidence, in the usual context, has been construed to mean less than a preponderance,
but more than a scintilla of evidence.” Id. (internal quotation marks omitted).
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“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (internal quotation marks omitted). “If the
Court finds that even one reason given for the denial is supported by substantial
evidence, the decision of the local zoning body cannot be disturbed.” T-Mobile Ne.
LLC v. Town of Islip, 893 F. Supp. 2d 338, 355 (E.D.N.Y. 2012) (internal quotation
marks and alteration omitted).
C.
Summary
To summarize, the Act “is in many important respects a model of ambiguity
or indeed even self-contradiction.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,
397 (1999). But at least three clear principles emerge from the statutory language
and cases construing it.
First, the Act forbids a municipality from prohibiting or effectively
prohibiting the provision of personal wireless services.
Any local permitting
requirement that does so is preempted.
Second, the Act requires a municipality to support its decision with substantial
evidence.
Third, the Act requires a municipality to make its permitting decisions in a
nondiscriminatory manner.
A coverage gap has no apparent bearing on
discrimination; rather, the statutory standard is whether the favored and disfavored
applicants offer “functionally equivalent services,” 47 U.S.C. § 332(c)(7)(B)(i)(I).
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With these principles in mind, the Court turns to ExteNet’s claims in this case.
III
ExteNet’s complaint includes four claims. First, it alleges that Article VIII
is preempted because it facially constitutes an effective prohibition on personal
wireless services in violation of 47 U.S.C. § 253(a). Second, it alleges that Article
VIII, as it was applied to its permit application, is preempted for the same reason.
Third, it alleges that the denial of its application violated § 332(c)(7) because it was
an effective prohibition, discriminatory, and not supported by substantial evidence.
Fourth, it claims that the denial violated § 27 of New York’s Transportation
Corporations Law.
The parties’ motions for summary judgment reframe the issues in a more
sensible way. The balance of this memorandum and order addresses those issues.
A.
Did the Board’s denial effectively prohibit personal wireless services?
As noted, the Act is not a model of clarity. In part, this is because it “strikes
a balance between two competing aims—to facilitate nationally the growth of
wireless telephone service and to maintain substantial local control over siting of
towers.” Omnipoint, 430 F.3d at 531 (internal quotation marks omitted).
The Second Circuit addressed where the balance lay in Sprint Spectrum L.P.
v. Willoth, 176 F.3d 630 (2d Cir. 1999). After “a detailed parsing of the statutory
language, including layers of highly technical definitions,” the circuit court held that
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the proper balance could be found by deciding “what Congress meant by ‘personal
wireless services.’” Id. at 641. It then concluded that “local governments may not
regulate personal wireless service facilities in such a way as to prohibit remote users
from reaching such facilities.” Id. at 643. “In other words, local governments
must allow service providers to fill gaps in the ability of wireless telephones to have
access to land-lines.” Id.
By contrast, the stated intent of Verizon’s contract with ExteNet was to
improve Verizon’s 4G LTE service. Indeed, it is undisputed that a signal strength
far less than Verizon’s desired -85 dBm would still be sufficient to make a phone
call. See Defs. Counter 56.1 Stmt. ¶ 151 (“At the level of signal strength is typically
when the mobile user would experience their device ‘downshift’ into 3G or even 1X
service which only supports voice.” (quoting ExteNet’s engineering expert)).
ExteNet objects that a 2018 ruling by the FCC expands the scope of the Act
to include services beyond access to a telephone network. In that ruling, the FCC
“clarif[ied] that an effective prohibition occurs where a state or local legal
requirement materially inhibits a provider’s ability to engage in any of a variety of
activities related to its provision of a covered service. This test is met not only when
filling a coverage gap but also when densifying a wireless network, introducing new
services or otherwise improving service capabilities.” In re Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C.R.
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9088, 9104-05 (2018) (footnotes omitted).
ExteNet argues that the FCC’s ruling is entitled to deference under Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
However,
Chevron deference applies only when the statute in question is silent or ambiguous.
See id. at 842-43. Although the Second Circuit found the phrase “personal wireless
services” “opaque,” it ultimately relied on “[t]he plain statutory language” to define
it. Therefore, the phrase was not ambiguous.
Improved capacity and speed are desirable (and, no doubt, profitable) goals in
the age of smartphones, but they are not protected by the Act. See Willoth, 176 F.3d
at 643 (“We hold only that the Act’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.”). The circuit court may wish to reconsider its definition in
light of new technology, but the Court is not in a position to ignore its binding
pronouncement. Accord Crown Castle NG East LLC v. Town of Hempstead, 2018
WL 6605857, at *9 (E.D.N.Y. Dec. 17, 2018) (“A gap in 4G coverage does not
establish that the target area is underserved by voice cellular telephone service.”);
Clear Wireless LLC v. Bldg. Dep’t of Vill. of Lynbrook, 2012 WL 826749, at *9
(E.D.N.Y. Mar. 8, 2012) (“[I]t is not up to the FCC to construe the [Act] to say
something it does not say, nor up to the Court to find broadband communication
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encompassed by the law.” (internal quotation marks omitted)).
B.
Was the Board’s denial supported by substantial evidence?
Although the Act requires that the denial of an application to install wireless
facilities be supported by substantial evidence, see 47 U.S.C. § 332(c)(7)(B)(iii), it
does not set any substantive standards for evaluating the application; “[t]hat
authority must be found in state or local law.” Willoth, 176 F.3d at 644. Under
New York law, lack of “public necessary” can justify a denial. See Omnipoint, 430
F.3d at 535 (citing Consol. Edison Co. v. Hoffman, 43 N.Y.2d 598, 611 (1978)). In
the context of wireless facilities, public necessary requires the provider “to
demonstrate that there was a gap in cell service, and that building the proposed
[facility] was more feasible than other options.” Id.
Thus, as with the effective prohibition issue, the lack of a gap in coverage is
relevant here and can constitute substantial evidence justifying denial of a permit.
For the reasons stated in the previous section, there was substantial evidence
justifying the Board’s conclusion that there was no gap in coverage justifying
ExteNet’s application. And, since one reason given by the Board for its decision
was supported by substantial evidence, the Court need not evaluate its other reasons.
See Town of Islip, 893 F. Supp. 2d at 355.
C.
Was the Board’s denial discriminatory?
Unlike the prior two issues, there is little caselaw as to what constitutes a
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discriminatory denial. Fortunately, the statutory standard is clear. As noted, the
comparison must be between “providers of functionally equivalent services.” 47
U.S.C. § 332(c)(7)(B)(i)(I).
ExteNet principally argues that the Village’s permitting process singles out
small wireless facilities and impose requirements “above and beyond those applied
to any other telecommunication structure.” Pl’s. Mem. of Law in Supp. of its Mot.
for Summ. J. at 24. But it fails to identify any such structure that offers functionally
equivalent services. The only other candidate in the record is a large cell tower,
which, by ExteNet’s own admission, does not offer the same functionality as its
small wireless facilities.
ExteNet briefly argues that the Village allowed Altice USA to install small
wireless facilities without prior permission, but the comparison is still not apt.
Altice One is a cable provider to whom the Village was legally required to offer
access to its rights-of-way. In addition, Altice USA offers cable and WiFi access;
by ExteNet’s own admission, these are not equivalent to the cell service provided by
its small wireless facilities.
D.
Did the Board’s denial violate New York law?
Finally, ExteNet argues that the Board’s denial violates § 27 of New York’s
Transportation Corporations Law. That statute—somewhat confusingly—governs
telephone and telegraph corporations, and provides that “any such corporation may
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erect, construction and maintain the necessary fixtures for its lines upon, over or
under any of the public roads, streets, and highways.” Id.
Given its focus on “lines,” it is far from clear that the statute applies to
providers of wireless services. In any event, the statute requires that the corporation
must “first obtain from . . . the trustees of villages . . . permission to use the streets
within such . . . village . . . for the purposes herein set forth.” Id. It is undisputed
that ExteNet did not receive such permission.
IV
For the foregoing reasons, the Village’s motion for summary judgment is
granted and ExteNet’s motion is denied.
The Clerk shall enter a judgment
dismissing the case.
SO ORDERED.
_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 29, 2022
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