Verizon Wireless Court Win May Ease Tower-Siting Litigation

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By Lydia Beyoud

Nov. 25 — A federal court decision in a tower-siting fight between Verizon Wireless Inc. and the small town of East Fishkill, N.Y., may help tip the scales for wireless companies trying to build out broadband infrastructure amid resistance from local officials and groups.

Wireless companies have been winning court fights around the country against municipalities that don't want the big towers built in their towns. The decision by the U.S. Court of Appeals for the Second Circuit is likely to influence other circuits that haven't established their own standard of review for tower-siting denials to see things the same way, attorneys told Bloomberg BNA.

East Fishkill denied a building permit to Verizon Wireless and another company, Homeland Towers, LLC, stating that a coverage gap affecting more than 35,000 commuters on a daily basis was “de minimis,” according to the court's decision. The companies took East Fishkill to court. In the first decision of its kind in the Second Circuit, the court ruled Nov. 10 the town's permit denial was a violation of the 1996 Telecommunications Act. The court ordered the municipality to grant wireless-tower construction permits to Verizon and wireless-tower company Homeland Towers (Orange County Poughkeepsie Limi v. The Town of East Fishkill, 2d Cir., No. 15-521, summary order, 11/10/15).

The Second Circuit decision by Chief Judge Robert A. Katzmann upheld a lower court summary judgment that East Fishkill and its municipal zoning board of appeals violated Section 332(c)(7)(B), which bars municipalities from “effective prohibition” of wireless services. Verizon and Homeland argued that East Fishkill's denial of a building permit request amounted to an effective prohibition of wireless services, and that the decision wasn't supported by substantial evidence.

Section 332 Litigation

The effective prohibition clause has been the subject of litigation across the country, Christopher B. Fisher, a partner at Cuddy & Feder, LLP in New York and president of the New York State Wireless Association, told Bloomberg BNA. The decision may help wireless industry groups arguing this point in court, Fisher said.

By providing data on what constitutes a significant gap, including the number of people affected and the mileage of the gap, Verizon and Homeland were able to support their claim that the town of East Fishkill had inappropriately denied their construction permit application.

The Second Circuit ruled using a “least intrusive means” standard of review, by which the plaintiffs demonstrated that construction of a new tower would be the least intrusive means of closing the coverage gap compared with other alternatives. The Second Circuit decision adds to a handful of other circuits that have established a similar standard of review for tower-siting cases.

Though there have been a number of tower-denial cases in recent years under Section 332, some circuits haven't decided on an appropriate standard of review under the section. With this decision, the Second Circuit confirmed the standards that have been established in the circuit, and followed the same standard applied in several others, Scott Thompson, a partner at Davis Wright Tremaine LLP in Washington, told Bloomberg BNA.

The decision may help move other circuits that haven't established a specific standard of review to the use of the “least intrusive means” standard of review for effective prohibition claims, said Thompson, whose practice focuses on wireless facilities deployment litigation and policy. In this case, the companies established that building a new wireless tower would be the least intrusive means of closing the service gap.

The decision also adds to a growing tendency of courts finding that an appropriate remedy in such cases is an order from the court requiring municipalities to grant the application for a tower that has been denied, Thompson said.

Though the court's summary order doesn't have precedential effect, the facts of the case make it less likely that judges in lower courts in the Second Circuit will decide to stray from the decision, said Andrew P. Schriever, a partner at Cuddy & Feder in New York and lead counsel for Homeland in the case.

“When you can show a judge that a case had facts that don't stray in large part on the facts before you, judges frequently will say they're not going to go against what the panel decided,” Schriever said.

Infrastructure Deployment

The decision isn't just a win for Verizon and Homeland Towers. Wireless and wireless infrastructure industry advocates say that resistance from cities and local groups who don't want large wireless towers built in their towns has slowed deployment of the infrastructure required to support the surge in mobile broadband use.

“The need for mobile infrastructure is kind of on a hockey stick curve,” Fisher told Bloomberg BNA.

With nearly any type of wireless infrastructure technology being deployed to meet demand for greater wireless data capacity, “this case and cases like it are instructive on the proper role of municipal government when it comes to zoning,” Fisher said.

The municipal defendants in the Second Circuit case haven't indicated whether they intend to appeal.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine in Washington at kperine@bna.com