Agenda - Planning Commission - 06/03/2010

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Zoning Bulletin April 25, 2010 ~ Volume 4 (No. B 5 \ Federal Telecommunications Act to bring an action challenging the decision. 'I•he Background/Facts: MetroPCS New York, LLC sought to con- struct new cell antennas on the rooftops of two properties in the city. In February 2008, MetroPCS applied to the city's planningboard (the "Board") for a special permit and for site plan approvals. Stephen Drago and 50 members of Neighborhoods Against Cell Towers objected to the proposed antenna installation. Despite the opposition, the Board approved MetroPCS's requested Special Permits and Site Plans. Drago challenged that decision by bunging an action in federal dis- trict court. The Board and MetroPCS asked the district court to dismiss Drago's action. They argued that he did not have standing (i.e., the legal right) to bring the action. They said that the Federal Telecommunications Act (the "TCA") does "not grant a private right of action to [Drago] or other similarly situated parties." Drago maintained that he did have standing under § 332(c)(7)(B) (v) of the TCA. That section provided a right to bring a legal action fo "[a]ny person adversely affected by any fmal action or failure to act by ~ --. a State or local government :..that is inconsistent [kvith subparagraph ~; ~ B of § 332(c)(7)]." Subparagraph B of § 332(c)(7) "impose[d] some limits on state and local government authority to regulate the location, construction, and modification of [facilities for wireless service]." The Court's Decision: Action dismissed. The United States District Court,- Southern District of New York agreed with the Board and MetroPCS. It held that Drago did not have standing: This was because the TCA "does not support a private right of action to persons adversely. affected by a local zoning board's deci- sion to allow the construction of a wireless cell. antenna." The court explained that to enforce the limitations of subpara- graph B of § 332(c)(7) of the TCA, Congress had created the right of action which Drago relied on in bringing this action. However, the court found it clear from the context of the whole of § 332(c)(7) that the right to bring such a federal action was limited to "persons .af- fected by a narrow set of actions by a state or local planning board." Namely, Drago could only bring such an action if he was affected by "any final action or failure to act" by the city that: "(1) unreasonably discriminate[d] against-a provider of functionally equivalent services; (2) prohibit[ed] or ha[d] the effect of prohibiting the provision of per- sonal wireless services; (3) [we]re not taken within a reasonable time ~; ) of the request for authorization to place, construct, or modify person- - al wireless service facilities; (4) den[ied] a request to place, construct, or modify personal wireless service facilities without substantial evi- dence or without putting the decision in writing; or (5) regulate[d] the © 2010 Thomson Reuters - 59