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MetroPCS Mount Vernon

MetroPCS Mount Vernon

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Published by David Sanger

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Published by: David Sanger on Feb 24, 2012
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07/31/2013

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Courtesy of Wirelessestimator.com
1
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKM
ETRO
PCS
 
N
EW
Y
ORK
,
 
LLC,Plaintiff,v.T
HE
C
ITY OF
M
OUNT
V
ERNON AND THE
C
ITY OF
M
OUNT
V
ERNON
P
LANNING
B
OARD
,Defendants.09 Civ. 8348 (SCR)OPINION AND ORDERSTEPHEN C. ROBINSON, District Judge:
The Plaintiff in this case, MetroPCS, is suing the City of Mount Vernon forviolations of the Telecommunications Act (TCA) of 1996, 47 U.S.C. § 332(c)(7)(B),New York State and local law by denying MetroPCS’s wireless facility application andillegally assessing filing fees and consulting fees against MetroPCS. Specifically,MetroPCS claims that the City of Mount Vernon (1) denied MetroPCS’s applicationswithout substantial evidence; (2) attempted to illegally impose the City’s preference foruse of an alternative technology; (3) unreasonably discriminated against MetroPCS byrefusing to approve a wireless facility that was indistinguishable from the other carriers’screened facilities providing functionally equivalent services at the site; and (4)arbitrarily assessed fees on MetroPCS that were not reasonably related to the reviewprocess. MetroPCS seeks summary judgment on these claims, and requests a permanentinjunction requiring the City to immediately approve MetroPCS’s application.
Case 7:09-cv-08348-SCR Document 28 Filed 07/22/10 Page 1 of 32
 
Courtesy of Wirelessestimator.com
2The City of Mount Vernon counters that MetroPCS’s application was incompleteand full of contradictory data that showed that the gap in coverage was not primarily inMount Vernon but in the neighboring municipality of Pelham. The City also argues thatMetroPCS failed to consider the less obtrusive alternative of expanding coverage usingits already existing distributed antenna system (DAS).From reviewing the record that was available to the City of Mount Vernon’sPlanning Board, the Court finds that the City’s denial was not based on substantialevidence—until the City’s opposition memo, there was no mention of why the sitechosen by MetroPCS was too obtrusive, unsafe, or otherwise counter to the City’sobjectives in regulating wireless facility siting. The City improperly insisted thatMetroPCS use the DAS system, delayed the application for an unreasonable period of time, and thus discriminated against MetroPCS in violation of the TCA. The Courtgrants an injunction requiring the City of Mount Vernon to approve MetroPCS’sapplication and all concomitant permits to enable MetroPCS to erect the proposed stealthantenna. The Court finds that § 267-28(J)(17)(a) and § 267-28(J)(12) of the City’sZoning Code are illegal as they relate to fees to apply for the collocation of a wirelesstelecommunications facility, and the City unreasonably assessed fees under thoseprovisions that it must now return to MetroPCS.
I.
 
FACTUAL BACKGROUND
The facts are taken from the Plaintiff’s Rule 56.1 statements, since the Court findsthat there are no material facts in dispute. MetroPCS is a telecommunications carrierlicensed by the Federal Communications Commission (FCC) to construct and operate anetwork of wireless telecommunications facilities. On June 19, 2008, MetroPCS applied
Case 7:09-cv-08348-SCR Document 28 Filed 07/22/10 Page 2 of 32
 
Courtesy of Wirelessestimator.com
3to the City of Mount Vernon Planning Board for a Special Use Permit that would allowMetroPCS to install a stealth six panel antenna on the rooftop of a building at 590 East 3
rd
 Street in Mount Vernon, New York, pursuant to Section 267-28(J) of the Zoning Code of the City of Mount Vernon. Declaration of Andrew Schriever (“Plt’s Decl.”), Ex. 3. Thesite is located on a building that had already been approved by the Planning Board tohouse the same type of wireless facilities for three other competing wireless carriers whoprovide functionally equivalent services: Nextel, T-Mobile, and AT&T.
See
Plt’s Decl.,Ex. 2 at Ex. L (Planning Board resolutions approving those applications).MetroPCS chose the site in part because it qualified as the highest priority site inthe community pursuant to the City’s Zoning Code, Section 267-28(J)(5)(A)(1). Plt’sDecl., Ex. 3. MetroPCS also modeled its proposed stealth rooftop wireless facility on thefacilities that had already been approved for the three other carriers. At the City’srequest, MetroPCS submitted its $6,000 zoning application fee and a $8,500 check toestablish an escrow account for the payment of the fees incurred by the City’s consultant,Center for Municipal Solutions (CMS). Plt’s Decl., Ex. 7-8.MetroPCS submitted its application on June 19, 2008.
See
Plt’s Decl., Ex. 2. Itincluded with its application various exhibits and reports as required by the City’s ZoningCode, including a report by one of MetroPCS’s radio frequency (RF) engineers whostated the MetroPCS’s existing wireless network was not adequate to properly serve itscustomers who live in and travel through the City of Mount Vernon. Plt’s Decl., Ex. 2 atEx. C. As stated in the application cover letter, MetroPCS informed the Planning Boardof the following:
Case 7:09-cv-08348-SCR Document 28 Filed 07/22/10 Page 3 of 32

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