Muttontown’s Cell Tower Denial ‘Untenable’ Under TCA, Says AT&T

The request of the village of Muttontown, New York, to file a motion to dismiss AT&T’s complaint over the municipality’s denial of the carrier’s efforts to build a cell tower should be rejected “because the application would be futile,” AT&T wrote U.S. District Judge Joanna Seybert for Eastern New York in Central Islip in a letter Friday (docket 2:22-cv-05524). Muttontown and its four component governing boards signaled their intentions to seek dismissal of AT&T’s complaint in a Dec. 12 letter motion to the judge (see 2212140001).

AT&T alleges the municipality violated the Telecommunications Act by denying the company’s application to build a 165-foot-tall cell tower to remedy service gaps in its wireless coverage, “and there is no prospect that permitting the proposed motion would expedite the resolution of this matter, as required by the TCA,” the carrier told Seybert. Other than giving a “conclusory assertion” that AT&T’s complaint fails to state a claim, Muttontown and its boards “point to nothing” that would preclude the court’s need to resolve AT&T’s dispute under the statute, it said.

The Muttontown zoning board’s denial of the cell tower application “is not supported by substantial evidence,” as the TCA requires, said AT&T. Nor have Muttontown and its boards “offered any basis” that would justify the court’s refusal “to consider the merits of AT&T’s prohibition of services claim,” also under the statute, it said. AT&T’s various filings have demonstrably shown “there is a significant service gap” in the community, and the proposed cell tower “is the least intrusive means of remedying that gap,” it said.

Since the litigation will continue, “there is nothing to be gained by adding months of unnecessary motion practice to a proceeding that already has been delayed” by two intervention motions filed by about 30 Muttontown residents seeking to protect their property rights, said AT&T. Muttontown’s boards and AT&T are all on record as opposing the motions to intervene. Attesting to the delays in the litigation, AT&T said its complaint was filed in September, but Muttontown and its boards have yet to file an answer.

Muttontown and its boards “offer absolutely no support or analysis for its conclusory statement that AT&T has not plausibly stated a claim for relief on its TCA prohibition,” plus its substantial evidence and shot clock claims against the zoning board, said AT&T. The complaint “easily sets forth the facts necessary to support each of its claims” against the zoning board and the other defendants, “which is all that is required at the pleadings stage,” it said.

Muttontown’s argument that claims must be dismissed against the board of trustees, the planning board, and the site and architectural review board (SARB) “fares no better,” said AT&T. The claim that AT&T did not need to apply to those boards runs contrary to the village code, it said. The defendants themselves “required AT&T to make these applications at various times,” it said. The complaint contends Muttontown forced AT&T to make “an unnecessary referral” to the zoning board for relief that could have been provided by the board of trustees, and it did so “in retaliation for AT&T demanding compliance” with the shot clock. The defendants’ “current posture cannot be reconciled with these facts and it does not support dismissal in any event,” AT&T said.

Muttontown’s argument that the shot clock claim against the zoning board must be dismissed as moot “is likewise futile,” said AT&T. The zoning board “plainly violated” the shot clock by failing to act on the cell tower application “within the deadline that was extended by consent,” it said. Though the shot clock was extended until Aug. 18, the defendants “still failed to meet this deadline,” and the zoning board did not produce its required written denial until Sept. 8, it said.

AT&T’s “unreasonable delay” claim against the zoning board and other defendants is not limited to the statutory shot clock, “but also to the overarching statutory requirement” under the TCA that action on installing a wireless facility “be taken in a reasonable period of time,” said the company. A board’s “reasonableness and good faith is relevant” to the court’s discretion in imposing remedies, it said.

It is “undisputed” the board of trustees, planning board and SARB “never acted” on the application at all, said AT&T. The defendants’ argument that this inaction “somehow immunizes the boards from liability” ignores that the shot clock was put in place “to provide remedies for inaction,” it said. “The failure of these boards to have acted in a timely manner cannot be used as a remand for further proceedings by them” in the event, as AT&T contends, that the zoning board denial “is untenable under the prohibition of services and substantial evidence provisions of the TCA,” it said. The defendants “do not address any of these facts or the allegation that their bad faith delay tactics resulted in the failure to render a decision within a reasonable time,” it said.