The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
MEMORANDUM DECISION AND ORDER
In a motion pursuant to the All Writs Act, 28 U.S.C. § 1651,
plaintiff Sprint Spectrum L.P. d/b/a Sprint PCS ("Sprint") seeks to compel
the Ossining Union Free School District (the "District") to permit Sprint
to install a cellular telephone tower on the roof of the Ossining New
York High School pursuant to an existing, but disputed, lease agreement
between Sprint and the District.
The District contests this Court's jurisdiction under the All Writs
Act on the grounds that the remedy sought by Sprint is unrelated to this
Court's prior injunction permitting the construction of the tower and
that the disputed contractual provision is a matter for the state courts
to resolve, one that does not implicate the Telecommunications Act
("TCA") of 1996, 47 U.S.C. § 332 et seq.
The motion before the Court is part of a larger dispute involving
Sprint and various state and local governmental officials. In prior
proceedings in this case, this Court determined that Sprint was entitled
to a permit to place its cell tower on the High School and ordered
injunctive relief against the New York State Board of Education. See
Sprint Spectrum, L.P. v. Mills, 65 F. Supp.2d 148, 161 (S.D.N Y 1999).
Familiarity with that opinion is assumed.
In that opinion, this Court found that Sprint, pursuant to an FCC
auction, won the right to provide digital cellular services to the New
York/New Jersey metropolitan region and in order to provide an
appropriate level of service, the Ossining High School was an essential
site for a cell tower. Sprint contracted with the District to use the
rooftop of the school for a cellular phone transmission tower, which was
to be disguised as a flagpole.
On September 23, 1998, Sprint signed a lease with the District. When
Sprint sought construction approval from the State Board of Education, the
Board summarily denied the application on the ground that the District
lacked authority to enter the contract since, in violation of the New
York Constitution, it provide for the private use of public property.
Following that denial, Sprint sought injunctive relief in this Court.
After litigation, this Court granted Sprint injunctive relief on
August 27, 1999 determining that the Department's denial was not based on
the required "substantial evidence." This Court also rejected the Board's
Constitutional challenge under Article 8, Section 1 of the New York
Constitution prohibiting "the gift, grant or loan of public property to a
private party." Specifically, the Court noted that:
". . . that in denying Sprint's application to install
a telecommunications tower in the form of a flagpole,
defendants violated 47 U.S.C. § 332
(c)(7)(B)(i)(II). Defendants have suggested that, in
their view, the leasing of school property to a
telecommunications company for installation of a site
would be impermissible because such a lease would
invariably allow the use of public property solely for
the benefit of a private party. The Department asserts
that, as a consequence, such leases violate Article 8
Section 1 of the New York Constitution and § 403-a
of New York Education Law. In addition to concluding
that our understanding of the law does not compel or
authorize this result, we also note that defendant's
position, if accepted, would bar telecommunications
companies from installing facilities on any public
school property and, contrary to explicit
congressional policy, would frustrate rapid deployment
of the new digital PCS technology."
Following this Court's August 1999 injunction, the State engaged in
further delay. During a conference some weeks later, the Court learned
that the state had still refused to issue the permit. Following
additional arguments before the Court, the state finally issued the
required permit on October 1, 1999.
Since that point in time more than one year ago, Sprint has still been
unable to erect the tower. This time, however, the intransigence arises
from the District. Following extensive negotiations with the District, on
July 5, 2000, Sprint sent a construction crew to the school site but the
crew was turned away because the District believed that Sprint had not
complied with certain provisions of ...