Magistrate Judge Calls for Dismissing All AT&T Cell Tower Claims vs. N.Y. Village

U.S. Magistrate Judge Lee Dunst for Eastern New York in Central Islip is recommending that U.S. District Judge Joanna Seybert grant the motion of Muttontown, New York, to dismiss all claims in AT&T’s September 2022 cell tower complaint for its failure to properly make a legally justiciable claim, said Dunst's report Monday (docket 2:22-cv-05524). Seybert referred the case Oct. 26 to Dunst for his recommendation (see 2310270055). AT&T alleges Muttontown unlawfully denied its application to build a 165-foot-high cell tower to remedy a significant coverage gap. The village contends that its planning board and its site and architectural review board had no subject-matter jurisdiction over AT&T’s tower application, so there’s no justiciable controversy between the company and those entities. It also argues that AT&T’s claims against those bodies must be dismissed under Article III. Dunst finds that AT&T’s shot clock violation claims under the Telecommunications Act are “are abstract and speculative,” said his report. It’s also long settled that Article III limits the subject matter of federal courts to justiciable cases or controversies, it said. AT&T’s allegations don’t demonstrate “any actual controversy” against the village or its various boards, it said. There’s no claim in AT&T’s complaint that, if taken as true, would demonstrate that any of these entities had jurisdiction to approve the proposed cell tower, it said. The defendants argue that the claims against Muttontown’s zoning board should be dismissed under Rule 12(b)(6) because AT&T doesn’t plausibly allege violations under the TCA or applicable state statutes, and the magistrate judge agrees, said the report. It’s difficult, for example, to see how the zoning board could have violated the TCA’s shot clock, it said. Much like the shot clock claim, AT&T provides only “cursory legal allegations” in support of its claim that Muttontown’s denial effectively prohibited AT&T from providing wireless services, said the report. To pursue a “valid” prohibition claim, a plaintiff must plausibly allege that defendants “rejected a proposal to remedy an existing gap in coverage by rejecting an application that was the least intrusive means of closing that gap,” it said. But AT&T’s complaint has no “factual allegations” that the proposed tower “was the least intrusive means of closing the service gap,” said the report. In fact, the complaint “provides only one cursory allegation on this point,” it said.