Agenda - Planning Commission - 07/12/2012

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Zoning Bulletin May 10, 2012 I Volume 6 I Issue 9 NEW YORK (03/08/12)—As a matter of first impression (i.e., the first time the court ever addressed the specific issue), this case addressed the issue of whether a local zoning board is limited by § 332(c)(7)(B) of the federal Telecommunications Act of 1996 (the "TCA") in reviewing an application to construct a facility providing wireless broadband Internet access services. The Background/Facts: Clear Wireless LLC ("Clearwire") is an affiliate entity of Sprint Nextel ("Sprint"). Clearwire provides the wireless broadband component of Sprint's telecommunications network —known as "wireless broadband Internet access service" or "4G" technology. In February 2010, Clearwire applied to the Village of Lynbrook (the "Vil- lage") to obtain a special use permit to construct and operate a telecommunica- tions facility consisting of antennas and related equipment (the "Proposed Facility"). The Board of Trustees of the Village (the "Board") eventually denied Clearwire's application. Among the reasons for its denial was the Board's belief that because the 4G service is an "advanced Internet product," Clearwire's application was not entitled to the level of review afforded under the TCA. Thus, the Board only analyzed Clearwire's application under the criteria set forth in the Village Code. Clearwire filed a legal action against the Board, the Village, and the Vil- lage's Building Department (hereinafter, collectively, the "Village Defendants"). Clearwire alleged that denial of its application was not sup- ported by substantial evidence, as required by TCA § 332(c)(7)(B)(iii). Among other things, Clearwire sought declaratory and injunctive relief under federal law pursuant to the TCA. Clearwire moved for summary judgment, asking the court to find there were no material issues of fact and decide the matter in its favor on the law alone. The Village Defendants also cross -moved for summary judgment, ask- ing the court to find in their favor. DECISION: Clearwire's motion for summary judgment denied; Vil- lage's motion for summary judgment granted. Clearwire's cause of ac- tion for declaratory and injunctive relief based on violations of the TCA dismissed. The United States District Court, E.D., New York, held that "the plain language of the TCA does not limit a local government's authority over zon- ing issues involving applications for wireless broadband Internet access ser- vice facilities." In other words, a local zoning board is not limited by § 332(c)(7)(B) of the TCA in reviewing an application to construct a facility providing wireless broadband Internet access services. In so holding, the court explained that, the TCA was adopted in order to "provide for a pro -competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecom- munications and information technologies and services . . . by opening all telecommunications markets to competition . . .." In furtherance of that © 2012 Thomson Reuters 7