AT&T Shoots Down Judge’s Recommendation to Dismiss Its Complaint vs. N.Y. Village

The Dec. 18 report from U.S. Magistrate Judge Lee Dunst for Eastern New York in Central Islip erred for multiple reasons when it recommended the dismissal of AT&T’s cell tower complaint against Muttontown, New York (see 2312190057), said AT&T’s opposition brief Friday (docket 2:22-cv-05524).

AT&T applied in October 2021 for approval of a 165-foot-tall cell tower that’s “urgently needed to remedy a service gap” in the village, said AT&T’s opposition brief. Muttontown’s denial of that application is “a textbook example” of what the Telecommunications Act “was enacted to prevent,” it said.

AT&T’s application “was inordinately delayed and unjustifiably denied,” said the brief. Dunst’s report recommending dismissal of AT&T’s action “misreads” the complaint, “misapprehends” key provisions of the TCA and “misapplies the standards” governing a motion to dismiss under Rule 12(b), it said.

Dunst’s report “ignores the painstaking details” included in AT&T’s complaint, said the brief. It also imposes “a wholly unreasonable threshold” that would require a plaintiff to prove its claim in a complaint, “not merely plead it,” it said.

The complaint defines the significant service gap at issue, and demonstrates that the proposed tower “is the least intrusive means to remedy it,” said the brief. AT&T’s allegations “must be accepted as true,” it said. Those allegations “are to be decided by the court de novo on a record to be developed in this litigation,” it said. The allegations “are far more than sufficient to state a claim that the denial resulted in an illegal prohibition of services under the TCA,” it said.

AT&T’s “substantial evidence” claim “must be considered on the full hearing record,” which isn’t currently before Dunst’s court, it said. The complaint alleges, “in detail,” why the proposed tower “is the most feasible means” of remedying the service gap and why the reasons stated for the denial in the written record as offered by Muttontown’s zoning board of appeals aren’t “supported by substantial evidence,” it said.

The report’s “deference” to the board decision’s “vague statement” that AT&T failed and refused to seriously consider any lesser intrusive alternatives to the 165-foot-tall tower “credits a pretextual denial without ever even seeing the record,” said the brief. The hearing record, as alleged in the complaint, “lacks the evidence of viable alternatives that would be needed to support denial,” it said.

The report also wrongly recommends that AT&T’s unreasonable delay claims against the village and its board of trustees, planning board and site and architectural review board aren’t “justiciable” because those entities “did not act” on the cell tower application, said the brief. That recommendation “ignores that the entities were required to act” before the TCA’s shot clock expired in August 2022. “Far from being a defense, their inaction is an element of the claim against them,” it said.