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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