Friday, November 13, 2015

NY Appeals Court Invokes Telecom Act, Clears East Fishkill Tower

The U.S. Court of Appeals for the Second Circuit in New York on Tuesday handed the tower industry a significant victory by embracing a lower court’s ruling earlier this year on an effective prohibition claim made by a tower company after a town denied its application to build a 150-foot cell tower for Verizon Wireless.

A three-judge Appeals Court panel denied an appeal by the town of East Fishkill, NY, after a lower court, the U..S District Court for the Southern District of New York, ruled on January 30 the town’s denial to Homeland was effectively prohibiting it from providing wireless services in violation of the Telecommunications Act of 1996. The landmark decision demands the town immediately issue Homeland Towers LLC and its tenant, Verizon Wireless, a permit to build the tower but it also sets a precedent for all similar cases going forward that courts will generally interpret the Spectrum Act in the same manner.

“We are thrilled that the Second Circuit adopted Homeland and Verizon’s position regarding the significance of the service to be provided, looking at the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, drop call or failure rates and other real metrics associated with providing reliable wireless services to the public,” Christopher Fisher, one of four attorneys with the New York-based firm of Cuddy + Feder, LLP, who represented the plaintiffs, said. “This is a critical advancement of the law, particularly when it comes to regulatory barriers to services being provided in all wireless infrastructure scenarios including towers, DAS, small cells, whether it be coverage or capacity situations.” Continue reading here.

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