City of Mount Vernon and Center for Municipal Solutions Admonished by United States District Court, Southern District of New York

In the 32 page decision, District Judge Stephen C. Robinson, granted summary judgment in favor of MetroPCS New York, LLC in which the city of Mount Vernon was ordered to immediately approve MetroPCS's application and grant any associated permits to enable it to install its antennas on an existing building located within the city boundaries. Specifically, the court found that the city of Mount Vernon violated the telecommunications act of 1996 by failing to base its denial of MetroPCS's application on substantial evidence, by discriminating against MetroPCS and unreasonably delaying its decision.

This case centers around an application for special use permit filed by MetroPCS with the city of Mount Vernon to authorize the installation and operation of six stealth panel antennas on the roof top of an existing building, on which antennas from three other competing wireless carriers are located. The application was originally filed on June 19, 2008. The city of Mount Vernon planning board denied the application of September 2, 2009.

Significantly, the city had retained the services of Richard Comi, one of the owners of the Center for Municipal Solutions.

The District Court found that the city of Mount Vernon failed to base its denial of the MetroPC's application on substantial evidence and such failure violated the TCA. It appears that one of the reasons for the denying the MetroPCS application related to the alleged failure of MetroPCS to provide the city with information about the viability of expanding the distributed antenna system ("DAS") network within the city.

The court also found that the city of Mount Vernon unreasonably discriminated against Metro PCS. The city acknowledged such discrimination but alleged that it was reasonable to treat MetroPCS differently than the other carriers who currently have antennas at the proposed site because MetroPCS is the only carrier with access to a DAS network. The Court rejected such an argument.

The court also found that the city unreasonably delayed review of the application. In doing so, the district court points out that

CMS and Mr. Comi delayed the application by repeatedly requesting unnecessary information and belaboring issues already resolved, resulting in a failure to put the application on the planning Board agenda for four months after MetroPCS made its final submission in February.

The District Court also tackled the issue of the reasonableness of Mr. Comi's consulting fees. In the view of the court, the assessment of fees was unreasonable. The special use permit application fee for a simple collocation in the city of Mount Vernon is $6000. On top of that outrageous fee, the city of Mount Vernon zoning law also requires an applicant to deposit $8500 to be used to pay the costs of the city's consultant. In striking down the city of Mount Vernon fee structure, it referenced Jewish Reconstructionist Synagogue case handed down by New York Court of Appeals in 1976. The District Court wrote that the fees charged should be reasonably necessary to accomplish the statutory command and fees should be assessed or estimated on the basis of reliable factual studies or statistics. The court was baffled by the fact that the city sought to charge a fee of $6000 for special use permit application for a collocation when a typical special use permit application for a non-telecommunications use was only $500.

In the end, the court struck down not only the $6000 application fee requirement but also the vague and limitless escrow requirement typically found in Mr.Comi's telecommunications laws. In fact, the court seemed so appalled with the fees charged by Mr. Comi that it ordered Mr. Comi to return a large portion of the fees charged.

Municipal agencies should carefully review this case to make sure that local telecommunications laws that may be in effect in their jurisdiction do not have similar problems as pointed out in the MetroPCS case. This is a good example to municipalities to remember to maintain control over the application review process and its consultants.

Second Circuit Rejects Town of Clarkstown Appeal involving DAS

The United States Court of Appeals for the Second Circuit affirmed the District Court Decision in New York SMSA Limited Partnership d/b/a Verizon Wireless, et al v. Town of Clarkstown, 2010 U.S. App. LEXIS 13364 (Decided June 30, 2010).

This action involved a challenge to Town of Clarkstown Local Law No. 14 enacted in 2007, which purported to amend chapter 251 of the Clarkstown Town Code, the purpose of which was to regulate wireless communications facilities. The local law was quickly challenged on several grounds by four FCC licensed communications carriers. The District Court held that Chapter 251 was preempted by the Federal Telecommunications Act in at least two respects. The District Court held that federal law preempted Chapter 251 from regulating proposed facilities with respect to radio frequency interference and alternate technologies.

The Second Circuit has affirmed the District Court Decision.

Town of Clarkstown Local Law No. 14 attempted to create an arbitrary point system designed to categorize various telecommunications applications, the result of which would dictate the specific review process to be followed. For purposes of this article, applications involving distributed antenna systems ("DAS") were highly favorable under the town of Clarkstown law. In fact, an applicant proposing a DAS would likely be subject to a much less rigorous application review process as compared to an application for co-location or a new tower.

The Second Circuit very clearly rejected the approach adopted by the town of Clarkstown. In doing so, the court holds that the town of Clarkstown Local Law No. 14

provisions setting forth a preference for "alternative technologies" are also preempted because they interfere with the federal government's regulation of technical and operational aspects of wireless telecommunications technology, a field that is occupied by federal law.

Municipalities need to be careful (and properly advised and counseled) when attempting to establish regulations that impact wireless communications facilities.

FCC Shot Clock Declaratory Ruling

On November 18, 2009, the FCC released a Declaratory Ruling (WT Docket No. 08-165) affecting, among other things, the time within which a municipality must act on an application for a wireless telecommunications facility. The FCC ruled that municipalities must generally act on application for collocation within 90 days and within 150 days for a new tower application. An applicant is entitled to commence an action in Federal Court against any municipality which fails to act within the established timeframes. Such action should be commenced within 30 days of expiration of the relevant time frame.

The declaratory ruling also confirms that a local municipality may not deny an application for a new facility on the grounds that existing service within the target area exists from other carriers. While this has been the case in New York, other federal jurisdictions have held otherwise.

New York State Wireless Association 2010 Trade Show and Conference kicks off Today!

The much anticipated NYSWA 2010 trade Show & Conference is scheduled to open today, May 4, 2010, in Niagara Falls, NY. Registration is between 3 PM and 6 PM. Don't miss the opening reception at the "Top of the Falls."

The show continues Wed. and Thurs. and concludes with a complimentary ride on Maid of the Mist.

The two day conference is packed with numerous keynote speakers and various workshops sure to appeal to anyone in the wireless industry including municipal officials. Workshops will include discussion on the recent FCC Shot Clock Declaratory Ruling, current municipal wireless issues and public networks, to name only a few. For more information, you are encouraged to visit the NYSWA's web site at www.newyorkstatewireless.org.

NYSWA is also offering an exclusive offer to municipal officials; purchase an educational conference pass for only $25.

New York State Wireless Association 2010 Trade Show Scheduled for May 4-6

The much anticipated w2010 NYSWA wireless trade show is scheduled to kick off today in Niagara Falls, NY. The kick off starts at

NY STATEWIDE WIRELESS NETWORK HOLDS FINAL ADVISORY COUNCIL MEETING ON MARCH 25, 2010

The Statewide Wireless Network (SWN) held its final Advisory Council Meeting on Thursday, March 25, 2010, in Albany, New York.

The 27 member SWN Advisory Council assisted in the development and implementation of an integrated statewide communications system; consulted with CIO/OFT regarding state purchases of information and communications technology; and made recommendations to state elected leaders concerning the availability and reliability of communications to ensure timely assistance in even the most challenging of areas, such as underground mass transit systems and mountainous terrain.

The webcast can be viewed on the Internet here

A copy of the presentation can be found at this link.

The webcast will be available on the web site for 30 days.

NYS STATEWIDE WIRELESS NETWORK HOLDS ADVISORY COUNCIL MEETING ON MARCH 25, 2010

STATEWIDE WIRELESS NETWORK HOLDS
ADVISORY COUNCIL MEETING ON MARCH 25, 2010

The Statewide Wireless Network (SWN) will hold an Advisory Council Meeting on Thursday, March 25, 2010, at 2:00 p.m., in Albany, New York.

The 27 member SWN Advisory Council assists in the development and implementation of an integrated statewide communications system; consults with CIO/OFT regarding state purchases of information and communications technology; and makes recommendations to state elected leaders concerning the availability and reliability of communications to ensure timely assistance in even the most challenging of areas, such as underground mass transit systems and mountainous terrain.


In keeping with the Governor’s policy on open meetings, the meeting will be web cast for public access and will be available through either of the following links:

http://pointers.audiovideoweb.com/asxfiles-live/1c2winlive6580.asx

http://interface.audiovideoweb.com/lnk/avwebreallivemt1077/live.rm/play


The webcast will be available on the Office for Technology web site for 30 days following the meeting.


Date: Thursday, March 25, 2010
Time: 2:00 p.m. – 4:00 p.m.
Location: Empire State Plaza Concourse
Meeting Rooms 2 and 3
Albany, NY