AT&T Says It’s Entitled to Summary Judgment in Tower Fight vs. N.Y. Town

AT&T’s motion for summary judgment should be granted, ordering the town of Corinth, New York, and its planning board and building department to approve AT&T’s proposed 150-foot-tall monopole wireless telecommunications tower, said AT&T’s response Friday (docket 1:21-cv-00149) in U.S. District Court for Northern New York in Syracuse to Corinth's Dec. 23 cross-motion for summary judgment (see 2212280003).

Corinth’s planning board “engaged in an illegal prohibition of services” when it denied AT&T’s application for the proposed tower, “and additionally because the reasons for that denial were not supported by substantial evidence,” as the Telecommunications Act requires, said AT&T. The town’s opposition “does nothing to alter these conclusions,” it said.

Corinth and its planning board “have not rebutted AT&T’s compelling proofs that there is a significant gap in reliable wireless communications services in the community, and that the proposed tower “is the least intrusive means” of remedying that gap, said AT&T. They have “similarly failed to rebut” the proofs demonstrating that AT&T established its right to relief under New York’s public utility standard, “because there is not a more feasible alternative” to remedy the gap, it said.

Because Corinth and the planning board are unable to contend with any of these points, “their opposition relies on semantics to avoid admitting facts that are fatal to their defenses,” said AT&T. The town also tries to introduce new arguments “that are devoid of any support in the record and improper as a matter of law,” it said. Corinth and its board “also either misconstrue, or altogether ignore, the controlling authority that governs the disposition of this lawsuit,” it said. As a result, AT&T is entitled to summary judgment in its favor on both its prohibition of services and substantial evidence claims under Section 332 of the TCA, it said.

The defendants “do not dispute that an illegal prohibition of services occurs when a board denies an application for a proposed facility needed to remedy a significant gap in service when there are no viable and less intrusive alternatives,” said AT&T. They also don't dispute the existence of the service gap, “or that it is significant,” it said. They likewise fail to point to a “single viable, less intrusive means” of remedying the gap, it said. “This comes as no surprise,” as the town “previously ruled out every identified potential alternative,” it said.

Since there's no dispute about “the unsuitability of every alternative” previously identified, Corinth and the planning board “now argue for the first time that AT&T did not disprove the possibility of co-locating on a new Verizon tower in town, said AT&T. “This belated and unsupported argument fails favor,” it said.

The defendants “have not previously identified the Verizon tower as a viable alternative,” said AT&T. The Verizon tower “was not referenced as an alternative” in the town’s expert witness at hearings or in discovery during litigation, it said. Nor was it mentioned when the defendants responded to AT&T’s interrogatories “specifically asking them to identify potential less intrusive alternatives,” it said.

Even if the issue weren't precluded, “the record demonstrates that AT&T did consider, and rule out, the Verizon tower” as a viable alternative to the proposed tower, said AT&T. As AT&T explained during the application process, “there was no coverage overlap between the two facilities, as the Verizon tower would be located two miles west” of AT&T’s proposed tower, it said. The defendants “do not even allege in their opposition brief that the Verizon tower is actually a feasible alternative” to remedy the service gap, it said.