‘No Basis to Dismiss’ AT&T Cell Tower Claims, Says Its Opposition

The rejection of AT&T’s cell tower application in Muttontown, New York, “created a significant public safety issue as residents, visitors, and first responders do not have access to reliable wireless services in this area,” said AT&T’s opposition Monday (docket 2:22-cv-05524) to Muttontown’s motion to dismiss AT&T’s complaint in U.S. District Court for Eastern New York in Central Islip.

AT&T brought the action after Muttontown “unreasonably delayed the application process through improper means, and then inexplicably denied the application despite its merits,” said AT&T’s opposition. In seeking dismissal of AT&T’s action on the pleadings, Muttontown urges the court “to pay only lip service” to the requirement that on a motion to dismiss, the court “must take AT&T’s factual allegations as true and draw all reasonable inferences in AT&T’s favor,” it said.

The complaint alleges denial of the application “resulted in a prohibition of services, and was not supported by substantial evidence,” both of which violate the Telecommunications Act, said AT&T’s opposition. As the prohibition of services claim is considered "de novo" (from the beginning) “on a full record that can be supplemented by discovery, which has not yet occurred, there is no basis to dismiss this claim,” it said. The substantial evidence claim also can’t be dismissed on the pleadings, because the “fact-intensive allegations” in AT&T’s complaint “must be considered on the full hearing record,” which isn’t currently before the court, it said.

The village and its various component boards engaged in “a pattern of abusive, delay-inducing behavior” violating the TCA and justifying approval of the application, said AT&T’s opposition. Muttontown’s failure to act within the time required by the TCA bars it from acting if the village reverses its denial, it said. “To dismiss these claims would endorse the untenable position that municipalities can frustrate the TCA’s mandate of expedited review by requiring multiple approvals, and then sequentially issuing and litigating multiple denials.”

AT&T’s complaint alleges “detailed facts in support of all of its claims,” said the opposition. It alleges the record establishes the need for the proposed cell tower, “and that it was the least intrusive and most feasible means of remedying the service gap,” it said. “AT&T further alleges that the denial was pretextual, as there is no evidence of viable, less intrusive alternatives,” it said. Muttontown engaged “in a pattern of abusive behavior to frustrate AT&T’s right to a prompt resolution of its application,” it said.

Muttontown’s motion to dismiss “falls far short of the very high bar for such extraordinary relief at the pleadings stage,” said AT&T’s opposition. Courts applying the TCA don’t permit municipalities to do what Muttontown is “attempting to do here,” it said. That is to “whipsaw” tower applicants “by denying applications for not addressing impractical alternatives that would be time-consuming to pursue,” it said.

AT&T’s complaint “states valid claims that the denial of the application was not supported by substantial evidence,” said the opposition. Muttontown’s challenge to AT&T’s substantial evidence claim, like its challenge to the prohibition of services claim, “is a premature and meritless summary judgment argument disguised as a motion to dismiss,” it said. “Courts have rejected such challenges to TCA claims at the pleadings stage.”

Substantial evidence claims can’t be resolved on a motion to dismiss because, as Muttontown concedes, a substantial evidence claim requires the court “consider all record evidence, not merely handpicked, out-of-context excerpts,” said AT&T’s opposition. “Here, the evidence to be considered” includes not only the hearing transcripts provided by Muttontown but also “hundreds of pages of additional materials, including expert reports” supporting the application, that aren’t yet before the court, it said.