The Judge quoted from the 1996 Telecommunications Act, citing the provision that “nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of persona wireless service facilities.<\/em>”<\/p>\n He noted that other courts have found the Act to be “in many important respects a model of ambiguity or indeed even self-contradiction.”<\/em>Nevertheless, he reasoned, a plain reading of the text supports the claim by the Village that it has acted legally.<\/p>\n Most importantly, the Judge ruled that the provisions of the 1996 Act do not necessarily apply to the new uses of wireless to provide broadband and other services.<\/strong> “Improved capacity and speed are desirable (and, no doubt, profitable) goals in the age of smartphones,”<\/em>he wrote, “but they are not protected by the Act.”<\/em><\/p>\n This is a Hallelujah moment for all those working to limit the reckless deployment of wireless technology into our neighborhoods and homes.<\/p>\n To view our Municipal Code Checklist and Smart Planning Provisions for Cities and Towns, please visit our Tool Kit<\/a>.<\/p>\n https:\/\/casetext.com\/case\/extenet-sys-v-vill-of-flower-hill<\/a><\/p>\n 07-29-2022<\/p>\n EXTENET SYSTEMS, INC., Plaintiff, v. VILLAGE OF FLOWER HILL and FLOWER HILL VILLAGE BOARD OF TRUSTEES, Defendants.<\/p>\n For the Plaintiff: CHRISTOPHER B. FISHER BRENDAN GOODHOUSE Cuddy & Feder LLP. For the Defendants: EDWARD M. ROSS JUDAH SERFATY Rosenberg Calica & Birney LLP.<\/p>\n<\/div>\n<\/section>\n For the Plaintiff: CHRISTOPHER B. FISHER BRENDAN GOODHOUSE Cuddy & Feder LLP.<\/p>\n For the Defendants: EDWARD M. ROSS JUDAH SERFATY Rosenberg Calica & Birney LLP.<\/p>\n MEMORANDUM AND ORDER<\/b><\/p>\n FREDERIC BLOCK Senior United States District Judge.<\/p>\n In this action under the Telecommunications Act of 1996 (\u201cthe Act\u201d), 47 U.S.C. \u00a7\u00a7 251-61<\/a>, 332(c)(7)<\/a>, ExteNet Systems, Inc. (\u201cExteNet\u201d), seeks judicial review of a decision of the Flower Hill Village Board of Trustees (\u201cthe Village\u201d or \u201cthe Board\u201d) 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<\/a>. For the following, reasons the Village’s motion is granted and ExteNet’s is denied. <\/span><\/p>\n I<\/b><\/p>\n The following facts are taken from the pleadings and the parties’ Rule 56.1 statements. Except where noted, they are undisputed.<\/p>\n ExteNet builds and operates telecommunications infrastructure, including \u201csmall wireless facilities\u201d that house low-power antennas to improve network connectivity. It operates under a Certificate of Public Convenience and Necessity (\u201cCPCN\u201d) from the New York State Public Service Commission.<\/p>\n 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 (\u201cFCC\u201d), 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. \u00a7 1.6002(1)(1)<\/a>.<\/p>\n 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. In broad terms, Verizon identifies a deficiency in its network and asks ExteNet to design a solution that will provide a specified signal <\/span> strength over a specified area. Pursuant to its CPCN, ExteNet must secure permission from the local authorities before beginning installation.<\/p>\n 4G LTE stands for \u201cfourth-generation long-term evolution,\u201d a wireless standard that improves the capacity and speed of a carrier’s network.<\/p>\n<\/div>\n 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.<\/p>\n 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 (\u201cArticle VIII\u201d), which now regulates the approval process for small wireless facilities.<\/p>\n 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 \u201cdecorative\u201d 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.<\/p>\n The Board held public hearings on ExteNet’s application on May 6 and June 3, 2019. <\/span> 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.<\/p>\n 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.<\/p>\n 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: \u201c(1) the significant adverse aesthetic and property values impacts of the 18 nodes permeating the tiny Village; <\/span> (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.\u201d Defs. 56.1 Stmt. \u00b6 13.<\/p>\n This action followed.<\/p>\n II<\/b><\/p>\n A. The Act’s Preemptive Effect<\/b><\/p>\n The Act declares that \u201c[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.\u201d 47 U.S.C. \u00a7 253(a)<\/a>. It then provides, however, that \u201c[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[.]\u201d Id.<\/i> \u00a7 253(c). These declarations are repeated -perhaps unnecessarily- later in the Act:<\/p>\n (A) General authority<\/p><\/blockquote>\n Except as provided in this paragraph, nothing in this chapter shall limit<\/p><\/blockquote>\n <\/p>\n 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.<\/p><\/blockquote>\n (B) Limitations<\/p><\/blockquote>\n (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof-<\/p><\/blockquote>\n (I) shall not unreasonably discriminate among providers of functionally equivalent services; and<\/p><\/blockquote>\n (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.<\/p><\/blockquote>\n Id.<\/i> \u00a7 332(c)(7).<\/p>\n B. Substantial Evidence<\/b><\/p>\n In addition to banning prohibitions (or effective prohibitions) and discrimination, the Act requires that any denial of an application \u201cto place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.\u201d 47 U.S.C. \u00a7 332(c)(7)(B)(iii)<\/a>. Substantial-evidence review is a \u201cdeferential standard, and courts may neither engage in their own fact-finding nor supplant the Board’s reasonable determinations.\u201d Omnipoint Comm’ns, Inc. v. City of White Plains, 430 F.3d 529, 533<\/a> (2d Cir. 2005) (internal quotation marks and alterations omitted). \u201cSubstantial evidence, in the usual context, has been construed to mean less than a preponderance, but more than a scintilla of evidence.\u201d Id.<\/i> (internal quotation marks omitted). <\/span>\u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id.<\/i> (internal quotation marks omitted). \u201cIf 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.\u201d T-Mobile Ne. LLC v. Town of Islip, 893 F.Supp.2d 338, 355<\/a> (E.D.N.Y. 2012) (internal quotation marks and alteration omitted).<\/p>\n C. Summary<\/b><\/p>\n To summarize, the Act \u201cis in many important respects a model of ambiguity or indeed even self-contradiction.\u201d AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397<\/a> (1999). But at least three clear principles emerge from the statutory language and cases construing it.<\/p>\n 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.<\/p>\n Second, the Act requires a municipality to support its decision with substantial evidence.<\/p>\n 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 \u201cfunctionally equivalent services,\u201d 47 U.S.C. \u00a7 332(c)(7)(B)(i)(I)<\/a>. <\/span><\/p>\n With these principles in mind, the Court turns to ExteNet’s claims in this case.<\/p>\n III<\/b><\/p>\n 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. \u00a7 253(a)<\/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 \u00a7 332(c)(7)<\/a> because it was an effective prohibition, discriminatory, and not supported by substantial evidence. Fourth, it claims that the denial violated \u00a7 27 of New York’s Transportation Corporations Law.<\/p>\n The parties’ motions for summary judgment reframe the issues in a more sensible way. The balance of this memorandum and order addresses those issues.<\/p>\n A. Did the Board’s denial effectively prohibit personal wireless services?<\/b><\/p>\n As noted, the Act is not a model of clarity. In part, this is because it \u201cstrikes 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.\u201d Omnipoint, 430 F.3d at 531<\/a> (internal quotation marks omitted).<\/p>\n The Second Circuit addressed where the balance lay in Sprint Spectrum L.P. v. Willoth, 176 F.3d 630<\/a> (2d Cir. 1999). After \u201ca detailed parsing of the statutory language, including layers of highly technical definitions,\u201d the circuit court held that <\/span> the proper balance could be found by deciding \u201cwhat Congress meant by \u2018personal wireless services.’\u201d Id.<\/i> at 641. It then concluded that \u201clocal governments may not regulate personal wireless service facilities in such a way as to prohibit remote users from reaching such facilities.\u201d Id.<\/i> at 643. \u201cIn other words, local governments must allow service providers to fill gaps in the ability of wireless telephones to have access to land-lines.\u201d Id.<\/i><\/p>\n 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. \u00b6 151 (\u201cAt the level of signal strength is typically when the mobile user would experience their device \u2018downshift’ into 3G or even 1X service which only supports voice.\u201d (quoting ExteNet’s engineering expert)).<\/p>\n 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 \u201cclarif[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.\u201d In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv.,<\/i> 33 F.C.C.R. 9088, 9104-05 (2018) <\/span> (footnotes omitted).<\/p>\n 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<\/a> (1984). However, Chevron deference applies only when the statute in question is silent or ambiguous. See Id.<\/i> at 842-43. Although the Second Circuit found the phrase \u201cpersonal wireless services\u201d \u201copaque,\u201d it ultimately relied on \u201c[t]he plain statutory language\u201d to define it. Therefore, the phrase was not ambiguous.<\/p>\n 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<\/a> (\u201cWe 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.\u201d). 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) (\u201cA gap in 4G coverage does not establish that the target area is underserved by voice cellular telephone service.\u201d); Clear Wireless LLC v. Bldg. Dep’t of Vill. of Lynbrook, 2012 WL 826749, at *9<\/a>(E.D.N.Y. Mar. 8, 2012) (\u201c[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 <\/span> encompassed by the law.\u201d (internal quotation marks omitted)).<\/p>\n B. Was the Board’s denial supported by substantial evidence?<\/b><\/p>\n Although the Act requires that the denial of an application to install wireless facilities be supported by substantial evidence, see 47 U.S.C. \u00a7 332(c)(7)(B)(iii)<\/a>, it does not set any substantive standards for evaluating the application; \u201c[t]hat authority must be found in state or local law.\u201d Willoth, 176 F.3d at 644<\/a>. Under New York law, lack of \u201cpublic necessary\u201d can justify a denial. See Omnipoint, 430 F.3d at 535<\/a> (citing Consol. Edison Co. v. Hoffman, 43 N.Y.2d 598, 611<\/a> (1978)). In the context of wireless facilities, public necessary requires the provider \u201cto demonstrate that there was a gap in cell service, and that building the proposed [facility] was more feasible than other options.\u201d Id.<\/i><\/p>\n 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<\/a>.<\/p>\n C. Was the Board’s denial discriminatory?<\/b><\/p>\n Unlike the prior two issues, there is little caselaw as to what constitutes a <\/span>discriminatory denial. Fortunately, the statutory standard is clear. As noted, the comparison must be between \u201cproviders of functionally equivalent services.\u201d 47 U.S.C. \u00a7 332(c)(7)(B)(i)(I)<\/a>.<\/p>\n ExteNet principally argues that the Village’s permitting process singles out small wireless facilities and impose requirements \u201cabove and beyond those applied to any other telecommunication structure.\u201d 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.<\/p>\n 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.<\/p>\n D. Did the Board’s denial violate New York law?<\/b><\/p>\n Finally, ExteNet argues that the Board’s denial violates \u00a7 27 of New York’s Transportation Corporations Law. That statute-somewhat confusingly-governs telephone and telegraph corporations, and provides that \u201cany such corporation may <\/span> erect, construction and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets, and highways.\u201d Id.<\/i><\/p>\n Given its focus on \u201clines,\u201d it is far from clear that the statute applies to providers of wireless services. In any event, the statute requires that the corporation must \u201cfirst obtain from . . . the trustees of villages . . . permission to use the streets within such . . . village . . . for the purposes herein set forth.\u201d Id.<\/i> It is undisputed that ExteNet did not receive such permission.<\/p>\n IV<\/b><\/p>\n 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.<\/p>\n SO ORDERED.<\/b> <\/span><\/p>\n<\/section>\n<\/section>\n <\/p>\n <\/p>\n https:\/\/www.americansforresponsibletech.org\/flower-hill-decision<\/a><\/p>\n Copyright \u00a9 2022 Our mailing address is:<\/strong> Contact us! https:\/\/portwashington-news.com\/village-of-flower-hill-talks-small-cells-road-work\/<\/p>\n <\/p>\n https:\/\/childrenshealthdefense.org\/emr\/breaking-victory-against-5g-in-flower-hill\/<\/a><\/p>\n https:\/\/theislandnow.com\/news-98\/flower-hill-denies-all-18-cell-nodes\/<\/p>\nA copy of the judge’s decision can be found here<\/a>.<\/strong><\/h2>\n
\nExteNet Sys. v. Vill. of Flower Hill<\/h1>\n
19-CV-5588-FB-VMS<\/span><\/h2>\n
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\nGrassroots Communications, Inc.
\nAll rights reserved.<\/em><\/p>\n
\n184 Main Street
\nPort Washington, NY 11050<\/p>\n
\nEmail: info@americansforresponsibletech.org<\/a>
\nPhone: 516-883-0887<\/p>\nwww.americansforresponsibletech.org<\/a><\/h2>\n
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\nVillage of Flower Hill – https:\/\/ecode360.com\/34145126<\/a><\/h2>\n