AT&T, N.Y. Village Open to Settlement Talks, but Sides Are Far Apart

The significant wireless service gap alleged in AT&T’s Dec. 22 complaint against the village of Oyster Bay Cove, New York, “has remained unremedied for years,” said AT&T’s portion of a joint status report on their three-month-long legal dispute (docket 2:22-cv-07807), filed Wednesday in U.S. District Court for Eastern New York in Central Islip. The impasse continues despite Telecommunications Act mandates ensuring wireless coverage for all, and despite the village having made property available for AT&T’s proposed 85-foot-tall cell tower to remedy the service gap, said the report.

AT&T contends the service gap is a public safety concern, since wireless devices now make up 70% of all 911 calls, said the report. The service gap also prevents AT&T from providing reliable services to FirstNet first responders, it said. Oyster Bay Cove’s denial of the proposed tower results in a “prohibition of service” violation of the TCA, it said. The denial also violates TCA provisions requiring that local decisions on wireless facility siting requests “be rendered within a reasonable period of time and in a written decision,” it said.

The village contends its zoning board’s denial of AT&T’s application “was supported by substantial evidence,” said the report. It says the denial was permitted under the 2nd Circuit’s 1999 decision in Sprint Spectrum v. Willoth because AT&T’s application “was not the least intrusive means of remedying the alleged significant gap.” The village also stands by its denial of the application as timely, it said.

Both sides insisted in the report they would be open to settlement discussions, but their hardened positions suggest that resolving the dispute won't be easy. AT&T is willing to discuss “reasonable modifications” of the proposed tower, but won’t accept reducing its height, said the report. The 85-foot height is already “the minimum necessary to provide meaningful service,” it said. AT&T also would also be willing to evaluate any “viable, available alternate location” for a facility to remedy the service gap, it said. But based on its knowledge of "the nature of the area,” AT&T doesn’t believe “that any viable, available alternative exists,” it said.

Oyster Bay Cove is “prepared to explore" a settlement that would remedy the service gap “through alternative means,” said the report. That would include redesigning the tower “to render it less visually and aesthetically intrusive in order to mitigate its adverse impact on surrounding property values,” it said. Notwithstanding AT&T’s insistence that reducing the tower’s height would be off the table in any settlement talks, the village is prepared “to explore a reduction in the height” of the proposed facility to “mitigate its impact on the surrounding community,” it said. That assumes “for purposes of settlement that AT&T produces adequate proof of a gap in coverage based upon all frequency bands and based upon signal strength insufficient to provide coverage,” it said.

The village believes, “even assuming the existence of the purported service gap,” that there are alternative and less intrusive means of “remedying said gap,” said the report. Those may include deployment of a distributed antenna system “to provide such signal coverage,” it said.