Case Information

‐ Tower Co., LLC Town Kiantone, et. al UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, New York, th day December, thousand seventeen.

PRESENT:

DENNIS JACOBS,

ROBERT D. SACK,

BARRINGTON D. PARKER, Judges

_____________________________________ Tower Co., LLC,

Plaintiff Appellant, Kiantone, York, Board Kiantone,

New York, Building Department

the Kiantone, New York,

Defendants –Appellees

___________________________________ FOR PLAINTIFF ‐ APPELLANT: Thomas Scott Thompson, Davis

Wright Tremaine LLP, Washington, D.C. (Reuben Ortenberg, the brief, Woods Oviatt Gilman, LLP, Rochester, NY). DEFENDANTS ‐ APPELLEES: Paul V. Webb, Erickson Webb Scolton

& Hajdu, Lakewood, NY. Appeal from judgment the United States District Court the Western District New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED judgment the AFFIRMED

Plaintiff appellant Up State Tower Co. (“Up State”) appeals December Decision Order United States District Court Northern District York finding Kiantone (“Town”) violated 332(c)(7)(B)(ii), but injunctive appeals relief, argues abused wording purpose 332(c)(7)(B), precedent, public policy dictate only proper government’s “within period time” order approve application. assume parties’ familiarity underlying facts, procedural history case, issues appeal.

1 . The Telecommunications Act of 1996 (“TCA”) is intended to speed spread of wireless telecommunications technology throughout country. See of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005). To end, subsection 332(c)(7)(B) limits traditional regulatory authority of state local governments over wireless facilities. One such limitation requirement to act on a wireless siting application “within a reasonable period time.” 47 332(c)(7)(B)(ii). The failed to do so, and, by way remedy, gave additional time to decide application, which has now been denied. review grant or a permanent an

discretion. Paramedics Electromedicina Commercial, Ltda. GE Med. Sys. Info. Techs., Inc., F.3d 645, (2d Cir. 2004). “A has abuse[d] if it based ruling erroneous view law or a clearly erroneous assessment evidence, or rendered a decision cannot be located within range permissible decisions.” In re Sims, 117, (2d Cir. 2008) (internal citations quotation marks omitted). TCA “is omnibus overhaul federal regulation

communications companies” was intended “to provide a pro competitive, de regulatory national policy framework designed to accelerate rapidly private sector deployment advanced telecommunications information technologies services . . . by opening all telecommunications markets competition.” Cellular Tel. Co. 492–93 (2d Cir. 1999) (internal citation quotation marks omitted). A government must siting “within a reasonable time . . taking into account nature scope such request.” 332(c)(7)(B)(ii). ‐‐ federal agency charged enforcing ‐‐ established such time “presumptively, days process personal service facility applications requesting collocations, and, also presumptively, days process all other applications.” See In Matter Petition Declaratory Ruling Clarify Provisions Section 332(c)(7)(b), F.C.C. Rcd. (2009) (“Shot Clock Order”). If violates Order taking more than days evaluate *4 siting application, as the did here, the aggrieved company must file suit challenging the to act within days. 47 § 332(c)(7)(B)(v). Act then requires that courts “hear decide” such appeals “on an expedited basis.” § 332(c)(7)(B)(v).

“The does not specify remedy for violations the cellular siting subsection.” at 497. Interpreting 332(c)(7)(B)(v) in its Shot Clock Order, the FCC rejected “ presumption that the should issue granting the application” violation any provision Section 332(c)(7)(B); instead, courts have discretion to fashion appropriate remedies. F.C.C. Rcd. 14009. This because the text the statute “indicates Congressional intent that courts should have the responsibility to fashion appropriate case specific remedies.” Id. While the FCC does “agree injunctions granting applications may be appropriate in many cases, proposals in personal service facility applications surrounding circumstances can vary greatly. It therefore important courts to consider specific facts individual applications adopt remedies based those facts.” Five years after issuing Order, FCC reiterated it “decline[d] adopt additional failures act within presumptively reasonable time limits,” courts are empowered “to decide [the remedy] in light ‘the specific facts individual applications.” In Matter Acceleration Broadband Deployment by Improving Wireless Facilities Siting Policies, F.C.C. Rcd. (2014) (“Infrastructure Order”) (internal citation quotation marks omitted). We owe Chevron deference FCC in its reasonable interpretations TCA.

Based plain text statute consistent interpretation FCC, did Affording twenty more days provided a short, finite interval issue a decision, in accordance purpose of TCA. Further, Up State may still bring suit alleging that reasons for Town’s subsequent are not supported substantial evidence, presumptive that violation is affirmative injunction. Town of Oyster Bay, at 497.

2. Up State next argues district court abused discretion other courts have “overwhelmingly recognized appropriate

remedy” a violation of § 332(c)(7)(B) is order local government grant requested application. Pl. Br. at ‐ 19. Up cites a number of cases in this in which courts granted injunctive relief § 332(c)(7)(B) violation; but governments in those actions violated other subsections of § 332(c)(7)(B) in addition Clock. See, e.g., of at (violation § 332(c)(7)(B)(iii)); Bell Atl. Mobile Rochester L.P. v. Irondequoit, N.Y., F. Supp. 2d 391, (W.D.N.Y. 2012) (violation § 332(c)(7)(B)(ii) § 332(c)(7)(B)(i)(II)); Upstate Cellular Network v. Auburn, No. 5:16 ‐ CV ‐ 1032, WL 2805820, at *8 (N.D.N.Y. June 28, 2017) (violation § 332(c)(7)(B)(ii) § 332(c)(7)(B)(i)(II)); York SMSA Ltd. P’ship Inc. Vill. Mineola, No. CV ‐ WL 25787525, at *11 (E.D.N.Y. Mar. 2003) (violation 332(c)(7)(B)(iii)). One district court case involving only violation 332(c)(7)(B)(ii) is Masterpage Commc’ns, Inc. Olive, et. al, F. Supp. 2d (N.D.N.Y. 2005), but there unreasonably adopted moratorium cellular towers, extended moratorium over year period. 78. district here has made no finding similar abusive behavior designed frustrate purpose TCA. did in affirmative final argument in light national policies

programs promoting rapid deployment broadband other advanced communications services, court’s issue undermined federal policies. This argument also unavailing light text interpretation relief presumed required violation.

For foregoing reasons, we hereby AFFIRM judgment court. THE COURT:

Catherine O = Hagan Wolfe, Clerk

[1] agree 5th Orders cited herein are constructions 332(c)(7)(B), they “are thus entitled Chevron deference.” Arlington, Tex. F.C.C., (5th Cir. 2012), aff ʹ d, U.S. (2013).