District Judge Grants Summary Judgment for Crown Castle Over N.Y. Town

U.S. District Judge Joan Azrack for Eastern New York in Central Islip adopted U.S. Magistrate Judge James Wicks' Jan. 19 report and recommendation (R&R) and granted summary judgment for Crown Castle on all three of its claims against Oyster Bay, New York (see 2401220028), said her signed memorandum and order Wednesday (docket 2:21-cv-06305).

Wicks’ “thorough and well-reasoned R&R” also recommended the dismissal of Crown Castle’s claims against Oyster Bay’s town board and zoning board of appeals because those entities “lack the capacity to be sued,” and Azrack agrees, said her memorandum and order. The court reviews that recommendation for “clear error,” and “finds none,” it said. She ordered the parties to submit a joint status report by March 26, describing “what issues, if any, they contend remain in this litigation.”

The town’s denial of Crown Castle’s applications to install 23 small cells in the public rights of way wasn’t supported by substantial evidence in the record, in violation of the Telecommunications Act’s Section 332(c)(7)(B)(iii), per Wicks’ R&R, said Azrack’s memorandum and order. That denial also effectively prohibited Crown Castle’s provision of wireless services in and around the town, in violation of the TCA’s Section 332(c)(7)(B)(i)(II), it said. The town’s application criteria and fees imposed also effectively prohibit the provision of telecommunications services, in violation of the TCA’s Section 253(a), it said.

The town’s Feb. 16 objections to the R&R acknowledged the report’s comprehensive references to the factual background of the case and the detailed summary of the parties’ contentions and concedes that the R&R was well-reasoned, said Azrack’s memorandum and order. It nonetheless objected to the R&R’s recommendation on the first claim insofar as its underlying analysis discussed the aesthetic impact of Crown Castle’s proposed small cells, it said. The town also objected to the R&R’s recommendation on the second claim, it said.

The town contends that Wicks erred in his R&R by failing to acknowledge and consider the deference owed to local governments’ aesthetic considerations under the 9th Circuit’s 2020 decision in City of Portland v. U.S., said Azrack’s memorandum and order. In briefing its summary judgment motion, Crown Castle contended that there was insufficient evidence to deny the applications on aesthetic grounds, it said.

The town didn’t respond to those contentions, said the memorandum and order. Its arguments instead about the “sufficiency of evidence” in the case asserted only that the evidence was sufficient to conclude that no service gap existed to warrant approval of the small-cells applications, it said.

The town can’t now argue for the first time -- when the argument could have been made in its opposition -- that summary judgment against the town should be denied as to Crown Castle’s first claim, said the memorandum and order. That’s because sufficient evidence existed to deny the applications on aesthetic grounds, but the town didn't argue it, it said.

The court would reject the town’s objection even on de novo review, said Azrack’s memorandum and order. The pertinent portion of the 9th Circuit U.S. Court of Appeals’ City of Portland decision concerned whether local governments prohibit service in violation of the TCA’s Sections 253(a) and 332(c)(7)(b)(i) by denying relevant applications based on subjective aesthetic considerations, it said.

That analysis didn’t concern whether substantial evidence exists under the TCA’s Section 332(c)(7)(B)(iii) to support denying relevant applications for aesthetic reasons, said Azrack’s memorandum and order. The court agrees with Wicks on the merits that the Oyster Bay’s decision that the proposed small cells would have a negative aesthetic impact on the area of the proposed nodes isn’t supported by substantial evidence, it said.

On the town’s objection to the R&R's recommendation on the second claim -- that denial also effectively prohibited Crown Castle's provision of wireless services -- the town contends that Wicks erred to the extent he recommended that the court authorize Crown Castle to install certain small cells outside the five-mile service gap area, said Azrack's memorandum and order. That’s because, according to the town, those small cells are unnecessary, it said.

After conducting a de novo review of the full record and applicable law, the court agrees with Wicks that Crown Castle “advanced the least intrusive means of closing the coverage gap,” said Azrack's memorandum and order. In light of the lack of further objections, the court reviews the balance of the R&R’s analysis as to Crown Castle’s entitlement to summary judgment for “clear error,” it said. The court “finds no clear error therein,” it said.