257 F. Supp. 3d 309
N.D.N.Y.2017Background
- Verizon submitted an application on March 4, 2016 to build a 100-foot monopole wireless facility at 246 Franklin Street, Auburn, NY; the City refused to accept or process the application because it had adopted a six‑month moratorium on new telecom facility applications on March 3, 2016.
- Verizon re‑sent and requested consideration multiple times during the moratorium; the City repeatedly refused to accept or act on the application during the 150‑day FCC "shot clock."
- Verizon sued on August 23, 2016 under 47 U.S.C. § 332(c)(7), claiming (1) failure to act/unreasonable delay (shot‑clock violation) and (2) an effective prohibition on service.
- The FCC’s rules (2009 and 2014 Orders) set presumptive processing times (90 days for collocations; 150 days for other applications) and state the shot clock runs regardless of moratoria.
- The court found the shot clock began when Verizon properly submitted its application (March 4, 2016), that Auburn failed to act within 150 days, that the delay was not rebutted as reasonable, and that the moratorium did not toll the shot clock. The court granted Verizon summary judgment and entered a mandatory injunction ordering approval of the application under the City Code as of March 4, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 150‑day TCA/FCC "shot clock" began when Verizon submitted the application during a local moratorium | Shot clock began on March 4, 2016 when Verizon properly submitted the application; moratorium does not toll the clock | Moratorium precluded filing/acceptance so the application was not "duly filed," therefore the shot clock never began and the suit is not ripe | Held for Verizon: moratorium does not stop the shot clock; shot clock began March 4, 2016 and expired August 1, 2016 |
| Whether City’s failure to act within the shot clock was reasonable (rebut presumption of unreasonable delay) | Delay was unreasonable; City made no requests for information or substantive action during the shot clock and cannot rebut the presumption | Delay was short (175 days to adoption of new code) and resulted from legitimate need to revise zoning after related litigation and local controversy | Held for Verizon: City failed to rebut presumption; refusal to process application during shot clock was unreasonable/failure to act |
| Whether the moratorium and refusal to process the application amounted to an "effective prohibition" of service under § 332(c)(7) | The moratorium/refusal effectively prohibited Verizon from filling a significant coverage gap and the proposed monopole is the least intrusive means | No final denial was issued; claim not ripe because application was not rejected on the merits | Held for Verizon: claim ripe; refusal to process amounted to effective prohibition because application showed a significant gap and no less intrusive alternative |
| Appropriate remedy once TCA violation established | Seek mandatory injunction directing City to approve the pending application and issue required permits under the law in effect at submission | City argued application should be resubmitted and considered under new Code with a new shot clock | Held for Verizon: mandatory injunction ordered — application deemed received March 4, 2016 and must be approved (including site plan and variance) under City Code as of that date; compliance deadlines set by court |
Key Cases Cited
- Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d Cir.) (interpreting § 332(c)(7) effective‑prohibition standard and least intrusive means test)
- City of Arlington v. FCC, 569 U.S. 290 (Supreme Court) (deference to FCC interpretation of ambiguous TCA provisions)
- Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir.) (courts may issue injunctions directing approval under the TCA)
- Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Planning Bd., 302 F. Supp. 2d 205 (S.D.N.Y.) (zoning boards have narrower discretion on utility applications and injunctions are appropriate remedy)