ExteNet Systems, a private owner and provider of 5G wireless communications infrastructure and neutral-host facilities, can proceed with construction of 10 small wireless facilities in Plandome, a village in New York, following a federal district court ruling that the company said would have implications on the regulation of small cell wireless networks beyond the deployment in Plandome.
On Sept. 30, Federal Judge Gary R. Brown of the Eastern District of New York ordered the Plandome to “issue all necessary permits and authorizations” to allow ExteNet to proceed with its construction of the small wireless facilities, a statement from ExteNet reads. The company said the construction would enhance wireless access for residents of the north shore of Long Island. ExteNet said it initially approached the village for such permits in 2017 and worked with the village representatives to design and minimize the number of facilities and their aesthetic effect. In November 2019, the village denied ExteNet’s application, and ExteNet brought the court action pursuant to the federal Communications Act.
In response to what ExteNet called a long path toward approval, the company said, Brown noted that “it was [ExteNet] who engaged in good faith in a particularly arduous and drawn-out application review process for over a year, only to have its application denied on mere pretense.”
ExteNet said that Brown noted that the village’s court pleadings “are rich in heated invective but poor in supporting facts or law” and found that the village attempted to “entertain an unsubstantiated caricature of [ExteNet] more befitting of a Disney villain than a, frankly, rather quotidian wireless service contractor.”
The court decision mentioned that ExteNet does not provide macro towers and further said that the village cited ExteNet’s failure to consider installing a macro cell instead of a small cell network as one of the reasons for denying ExteNet approval to install small cells. The court recounted that ExteNet established on multiple occasions that it did not construct macro cells and was not in the business of doing so.
Nevertheless, the court said, at Plandome’s request — and in apparent conflict with its own economic interest — ExteNet reached out to Verizon to inquire as to the possibility of installing a macro cell as an alternative to the proposed small cell network. Verizon apparently affirmed that it was sticking to the small cell plan, the court said. This seemed to be surprising, the court said, given that even ExteNet’s own representatives testified that macro cells are typically more appealing to service providers like Verizon because they are far less expensive.
However, the rationale became clearer in light of the village deputy mayor, Ray Herbert, acknowledging that service providers previously had approached the village about installing macro towers, and a solution could not be arranged. The court referred to a series of emails sent from a macro cell contractor, Elite Towers, to the village government from 2014 to 2019, to which the village failed to respond until June 2019 — “surely by coincidence,” the court said.
Faulting ExteNet for failing to consider building a macro tower, which it was not in the business of constructing, when the village government ignored proposals for a tower for years prior to ExteNet’s application, was, in the words of the court, “at best, a bit disingenuous.”
According to ExteNet’s counsel, Chris Fisher of the law firm, Cuddy & Feder, “We are pleased the court recognized ExteNet’s good faith efforts to work with the village to improve wireless service in the community, particularly given an extraordinary local process not applied to other utilities and a permit denial after nearly a year of efforts. This is a significant ruling for the wireless industry and reiterates the limited scope of local regulatory authority municipalities have over small cell wireless infrastructure in the right of way under state and federal law and that community opposition alone is not a basis for denying a wireless application.”
ExteNet’s vice president and associate general counsel for regulatory affairs, Michael A. Hill, said that ExteNet was pleased with the outcome and looked forward to deploying improved cellular wireless coverage for residents, businesses and visitors of Plandome.
“We expect the village to issue all permits at its next regularly scheduled board meeting so we can offer the community enhanced cellular wireless services by the end of 2021,” Hill said.
At a meeting of its village board on Oct. 12, Plandome decided to comply with the court decision and issue special permits and other required approvals for the ExteNet small cells. The village board resolution implementing these steps said that the village was taking the action under protest and subject to Plandome’s and its village board’s appellate rights.
Moreover, the resolution authorized Plandome’s representatives to engage in settlement discussions with ExteNet and its representatives. The resolution did not disclose the nature of a potential settlement, but it said the purpose would be to avoid the necessity of an appeal of the court decision.
Don Bishop is executive editor and association publisher of AGL Magazine.