Crown Castle Sues NY Towns for Blocking Small-Cells Builds; FCC, States Mull Rules

Litigation on small-cells wireless infrastructure deployment flared in New York state as legislatures and the FCC mull actions to spur 5G builds. Over the past two months, Crown Castle sued southeastern New York localities Rye, Hempstead and Oyster Bay for allegedly blocking small-cells deployment. An official representing New York mayors said litigation stems from federal rules not keeping up with technology. Local officials outside the state said they’re not yet seeing much similar litigation elsewhere.

“The existing statutory and regulatory framework at the federal level has failed to keep pace with rapidly evolving telecommunications technology,” said New York Conference of Mayors Executive Director Peter Baynes. “Particularly as it relates to small cells, this regulatory-technology gap has created an ambiguous void that has led to … an increasing degree of litigation.” NATOA Executive Director Steve Traylor said he hasn’t seen much small-cells litigation nationally, but agreed “technology is evolving so quickly that it is difficult for federal, state and local laws to keep pace.”

Crown Castle hopes "to avoid litigation and move through a city’s local permitting process by working together to finalize locations and other details,” a spokesman said. “We remain optimistic that we will be able to resolve any local matters so that small cell network improvements are allowed to move forward.”

The company sued over Rye’s allegedly "improper refusal" to give Crown Castle access to the right of way to expand its small-cells network, said a May 11 complaint (in Pacer) in U.S. District Court for the Southern District of New York. The refusal was “despite Crown Castle placating the City by responding to repeated requests for legally irrelevant information and providing the City with three alternative plans for this expansion, over the course of a year and a half review process,” it said. Rye violated Communications Act Sections 253 and 704, New York state law and Rye-Crown agreements, the company said. In a May 26 memo (in Pacer), Rye urged the court to dismiss the suit, saying the city gave “diligent and proper review” over the past 18 months to more than 60 small-cells locations.

The company sued Hempstead later that month after the city hired a consultant. In the May 24 complaint (in Pacer) in U.S. District Court for the Eastern District of New York, the company said it filed 14 siting applications on Jan. 18, but the consultant “frustrated the Town's process and review authority by imposing on Crown Castle unreasonable and vague demands for information and facility design changes based upon arbitrary and unsupported findings of visual impact.” The actions violate sections 253 and 332, Crown said. Hempstead’s consultant, Center for Municipal Solutions (CMS), declined comment.

Then in a June 18 lawsuit, Crown Castle claimed Oyster Bay illegally issued a cease-and-desist order revoking permits to install wireless equipment in the right-of-way due to environmental concerns about RF emissions. "Federal law specifically prohibits the use of such concerns as a reason to delay or deny permits for personal wireless service facilities,” Crown Castle said, citing Section 332 in a complaint (in Pacer) in the same court as the Hempstead case. The town didn’t comment.

New York may be “the exception and not the rule,” said local government attorney Ken Fellman, saying he hasn’t seen much similar litigation. The consultant cited in Hempstead was an “alleged cause” for a few earlier industry lawsuits against localities, Fellman noted. The lawyer said it’s uncommon for a town to knowingly challenge federal RF emissions rules, as alleged against Oyster Bay, “but it points out that a small number will, so that even a new FCC decision wouldn’t insulate the industry from some community that didn’t want to comply with the then-federal law.”

More than 10 states passed small-cells legislation, with others considering (see 1706260042 and 1706220026). Ohio’s small-cells law, passed last year, precipitated lawsuits by Cleveland and many other localities against the state (see 1706060048). Meantime, the FCC Broadband Deployment Advisory Committee mulls recommendations on reducing barriers and the commission eyes possible actions in a wireless infrastructure rulemaking and in response to a Mobilitie petition.

State laws may provide guidance to localities on some issues, including application processing deadlines, but it “doesn’t help that the FCC is engaged in numerous proceedings addressing many of the same issues,” Traylor said. “It’s creating a sense of uncertainty that is not helpful to either local governments or industry.” Baynes said the state laws and FCC proceeding favor industry and fail to protect local rights.

“There are multiple unintended consequences that could flow from FCC pre-emption of traditional areas of local control,” including lawsuits from parties not historically involved, like homeowner groups or developers, said Fellman. It could be like how an increasing number of people are pushing back on the FCC about privacy and net neutrality, he said. An FCC spokesman noted that the agency’s May notice sought comment on sections 253 and 332.