AT&T to File Summary Judgment Motion vs. N.Y. Village Over Denied Cell Tower

AT&T seeks the scheduling of a pre-motion conference for its anticipated motion for summary judgment against Oyster Bay Cove, New York, counsel Andrew Joseph of Faegre Drinker wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip Thursday (docket 2:22-cv-07807). AT&T’s December 2022 complaint alleges the village and its planning and zoning appeals boards subjected the carrier to an “unreasonably protracted” application process to approve an 85-foot cell tower, ultimately failing to act on the application before the last-extended expiration of the Telecommunication Act’s shot clock (see 2212230054). AT&T contends it needs the tower to remedy a service gap that's “significant in terms of size, number of persons affected, and degree of service deficiencies.” The company can’t provide “reliable” service in the area that the proposed tower would serve, Joseph told the judge. “This affects not only the public at large, but public safety agencies unable to access the FirstNet first responder broadband system operated by AT&T,” he said. The company’s motion for summary judgment will show that denial of the application resulted in a prohibition of services, in violation of the TCA, he said. There’s undisputed expert testimony that AT&T can’t provide reliable in-vehicle service for a mile-long stretch in the affected area, he said. There’s also undisputed evidence that the proposed tower is the least intrusive means to remedy the service gap, “as it will be located within a grove of trees of similar height to the monopine,” he said. AT&T will also show that the denial of the application violated the TCA’s Section 332, as the denial wasn't not supported by substantial evidence under New York State law, he said. The denial decision “is facially invalid as it applied the federal prohibition of services test rather than New York’s public utility standard,” he said. The parties have completed all fact and expert discovery, and the matter is ready for summary judgment briefing, Joseph told the judge.