355 F. App'x 501

2d Cir.

2009

The NEW PHONE CO., INC., Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Appellee.

No. 07-1767-cv.

United States Court of Appeals, Second Circuit.

Dec. 7, 2009.

501

Mayne Miller, New York, NY, for Plaintiff-Appellant.

Francis F. Caputo, Assistant Corporation Counsel (Bruce Regal, Michael S. Adler, Jerald Horowitz, and Karen M. Griffin, Assistant Corporation Counsels, of counsel), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.

Present: WILFRED FEINBERG, RALPH K. WINTER, and ROSEMARY S. POOLER, Circuit Judges.

SUMMARY ORDER

This is an appeal from a judgment, filed April 10, 2007, of the United States District Court for the Eastern District of New York (Gleeson, J.), granting the defendant‘s motion to dismiss the complaint. The judgment memorializes the district court‘s order, filed April 6, 2007, adopting in its entirety the Report and Recommendation of Magistrate Judge Kiyo Matsumoto, filed November 30, 2006, and rejecting NPC‘s objections thereto

We assume the parties’ familiarity with the facts and procedural history of the case. In an order, filed December 16, 2007, this Court granted the motion of plaintiff-appellant The New Phone Co., Inc. (“NPC“) to have the instant appeal heard in tandem with the appeal in The New Phone, Co., Inc. v. New York City Dept. Of Information Technology and Telecommunications, 06-5276. In its declaration in support of the motion, NPC stated that “[t]he basic complaints in both cases are the same—the oppressive regulatory scheme for public pay telephones ... inaugurated by the City [of New York] and administered with ever more oppression and favoritism....” That is, in both cases, NPC challenges Local Law 68, passed by New York City (“the City“) in 1995, which enacted a regulatory scheme for the placement of pay telephones on public property.

NPC asserts claims under: (1) the Federal Telecommunications Act of 1996 (“the TCA“), 47 U.S.C. Section 253; (2) Section 90 of the New York State Public Service Law, Pub. Serv. L. Section 90; and (3) numerous provisions of the Federal Constitution. Also in its declaration in support of the motion to have the instant appeal heard in tandem with the appeal in 06-5276, NPC avers that “[m]ost of the alleged grounds for dismissal of the two actions ... are identical....” Our review of the district court‘s grant of dismissal is de novo. See Staehr v. Hartford Fin. Serv. Group, Inc., 547 F.3d 406, 424 (2d Cir. 2008).

Relying upon our recent decision in Global Network Communications, Inc. v. City of New York, 562 F.3d 145 (2d Cir. 2009), a case also involving a challenge to Local Law 68, we held in 06-5276 that NPC‘s claims under the TCA fail because, pursuant to the statute‘s “safe-harbor” provision, 47 U.S.C. Section 253(c), the regulatory scheme set forth in Local Law 68 was exempt from the terms of the TCA. See The New Phone, Co., Inc. v. New York City Dept. Of Information Technology and Telecommunications, No. 06-5276 (2d Cir. 2009). We believe that this holding is equally applicable to NPC‘s claims under the TCA here, and we accordingly affirm the dismissal of those claims.

We have reviewed NPC‘s arguments urging us to reverse the district court‘s dismissal of its remaining claims, and we believe they are without merit. Accordingly, we affirm the dismissal of those claims.

For the reasons stated above, the judgment of the district court is hereby AFFIRMED.

The NEW PHONE CO., INC., Plaintiff-Appellant, v. NEW YORK DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS, Verizon New York, Inc., and The City of New York, Defendants-Appellees.

No. 06-5276-cv.

United States Court of Appeals, Second Circuit.

Dec. 7, 2009.