March 19, 2015 — The U.S. District Court for the Southern District of New York recently struck down a cell tower denial by the Town of East Fishkill, New York. This is one of the first instances in which a federal court has applied the FCC’s Accelerating Wireless Siting Report and Order, according to Andrew Schriever, partner, Cuddy & Feder law firm.
The FCC Report and Order codified language from Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, which requires municipalities to approve applications for collocations and modifications that do not substantially change the physical dimensions of an existing wireless facility.
The Town of East Fishkill blocked the development of Homeland Towers’ proposed 150-foot monopole and was sued by Orange County-Poughkeepsie Limited Partnership d/b/a Verizon Wireless and Homeland Towers.
In the town’s argument against the proposed tower it said that even though the tower was designed to collocate five carriers, none of the carriers would be able to locate below Verizon (which would be at the top). Consequently, each carrier applying for collocation could use Section 6409 to require the town to approve indefinite extensions of the height of the tower, Schriever wrote in an article for AGL Magazine.
“In examining the implications of Section 6409 for the first time in the context of a new tower application, the court rejected this argument, pointing out that under the FCC order, extensions are available once and municipalities still retain the ability to deny a Section 6409 application under certain conditions, so the town’s concerns about mandatory indefinite tower height extensions were not established,” Schriever wrote.
The court also overruled the town’s argument that the plaintiffs had an obligation to demonstrate that future carriers would be technically able to collocate below the Verizon antennas.
“The East Fishkill decision contributes to a growing line of important precedents supporting the federal goals of rapid and robust deployment of wireless services, and it provides those seeking to provide the infrastructure for these services with another tool to help guide the municipal review process,” Schriever wrote.