PCIA Pleased with 2nd Circuit Zoning Decision
A federal appeals court decision (http://1.usa.gov/1cWoAVt) upholding a lower court’s decision that the Town of Greenburgh, N.Y., had unlawfully denied Crown Castle’s application to install a distributed antenna system (DAS) in a public right of way is not precedent-setting but a positive for industry nonetheless, PCIA Director of Government Affairs Jonathan Campbell told us Friday. But other wireless lawyers said the decision is mostly in keeping with other developing case law. The 2nd U.S. Circuit Court of Appeals released a summary decision, which the court said does set precedent.
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The court ruled that a tower company like Crown Castle “has rights as a provider to deploy their facilities independently of the carrier that might use that facility further down the road,” Campbell said. “In this case Crown was very much on the right path and had its own rights to be able to deploy facility. We're glad to see that.” PCIA was also pleased the court recognized that DAS has a minimal impact, he said. “The court recognizes that these distributed antenna systems which added a few feet to the top of this 30-foor utility pole ... shouldn’t have been a great concern to the local jurisdiction.”
Campbell said there is a “growing recognition” that DAS and small cells are “minimally impactful” and shouldn’t face “huge constraints and regulatory hurdles” from local government. As a summary decision it’s less significant “than a full-on court decision,” but “it’s still, I think, a positive for the direction that the industry is moving,” he said.
But Joseph Van Eaton, a lawyer from the Best Best firm who represents cities, questioned how significant the 2nd Circuit decision was. “This is an unpublished decision, so I am not sure how important it is as precedent -- probably none,” he said. “I thought the district court order was important for one reason: It indicated that the relevant federal test under Section 332(c)(7) for whether a proposed installation closed a ’significant gap’ was whether … the facility closed a gap in the coverage area for a personal wireless service provider. That is, if T-Mobile is leasing from Crown Castle, the issue is not whether Crown Castle needs the facility to serve T-Mobile; it is whether T-Mobile needs the facility in order to close a gap in its service area."
One industry lawyer said the decision is of “modest” importance. “The ‘aesthetic’ zoning issue has been affirmed” in the 9th U.S. Circuit Court of Appeals and elsewhere “as a legitimate state basis to deny zoning approvals for towers so a 2nd Circuit decision to the contrary is significant."
"It is not a DAS issue,” said Peter Tannenwald of Fletcher Heald. “It is an issue of federal limits on municipal authorities to reject antenna construction requests and is consistent with other court decisions.”