Town’s Small-Cell Denial Was ‘Unreasonable and Improper,’ Says Crown Castle

Plaintiff Crown Castle is entitled to summary judgment as a matter of law on its claims that the town of Oyster Bay, New York, unlawfully blocked its applications to install 23 small wireless facilities (SWFs) in the town’s public rights-of-way (ROW). So said Crown Castle’s reply memorandum Friday (docket 2:21-cv-06305) in U.S. District Court for Eastern New York in Central Islip in further support of its summary judgment motion.

Crown Castle contends the SWFs are the “least intrusive means” to remedy “significant” 3G and 4G service gaps in around the areas of the SWFs. It’s “undisputed” that the SWFs comply with the Oyster Bay’s code requirements, said the memorandum. So the town’s “unreasonable and improper denial” of the applications isn’t supported “by substantial evidence contained in the written record,” in violation of the Telecommunication Act’s Sections 253 and 332, it said.

Oyster Bay’s refusal to allow Crown Castle access to the ROW violates the statute, said the memorandum. So does its imposition of “unnecessary, unreasonable, discriminatory, and prohibitive escrow charges,” plus its application fees, requirements and review processes, it said. All were impediments that “materially inhibited and effectively prohibited the provision of telecommunications services and personal wireless services,” it said.

The town’s opposition to the SWFs “fails to demonstrate a genuine issue of material fact, and thus should be rejected,” said the memorandum. The opposition fails to address several arguments raised in Crown Castle’s memorandum of law, it said. It also “completely conflates” several of the standards that are applicable to the instant motion for summary judgment, including the local and state law standards that govern local municipalities’ control over decisions about the placement, construction and modification of personal wireless facilities, it said. Oyster Bay’s opposition “relies on inapposite case law, misconstruing of the facts of this case, and misapplication of the law,” it said.

Crown Castle lawfully established the need for the SWFs, in compliance with Chapter 242 of the town code, said the memorandum. Though Chapter 242 requires a showing of only one need, Crown Castle “submitted all forms of documentation and data required,” it said.

Those forms of documentation included signal propagation and drive test data and maps, said the memorandum. It also submitted “key performance indicator data,” including drop call rates and utilization capacity charts, it said. The data established that Verizon has “significant gaps” in 3G and 4G coverage over a nearly five-square-mile portion of Oyster Bay in which about 10,000 individuals reside, it said.

The drop call rates tested in Oyster Bay exceeded the industry-standard “1% threshold,” said the memorandum. That “further demonstrates the existence of the significant gaps in coverage in and around the locations” of the proposed SWFs, it said. Despite this and other showings, Oyster Bay and its officials “baldly claim” that Crown Castle “failed to prove a need for the SWFs,” it said.

Oyster Bay urges the court “to adopt the wrong standard” to evaluate whether the town’s requirements have the effect of prohibiting service, said the memorandum. The FCC’s September 2018 small cell order is “the appropriate standard” for evaluation, it said. The town’s request that the court should “simply reject” the FCC’s decision in the small cell order and substitute its own judgment “is improper as such actions would constitute “a collateral attack” on that order, it said.

Even if the court had jurisdiction to revisit the small cell order, the court “still must defer to the FCC’s reasonable interpretations of ambiguous statutory language,” said the memorandum. It “thus should nevertheless apply the materially inhibit standards that the FCC adopted” in the small cell order, and which the 9th Circuit upheld on appeal, it said.