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SPRINT SPECTRUM L.P. v. MILLS

December 20, 2000

SPRINT SPECTRUM L.P. D/B/A SPRINT PCS, PLAINTIFF,
V.
RICHARD P. MILLS, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF EDUCATION, CHARLES A. SZUBERLA, INDIVIDUALLY AND AS COORDINATOR, FACILITIES MANAGEMENT AND INFORMATION SERVICES OF THE NEW YORK STATE DEPARTMENT OF EDUCATION, AND CARL T. THURNAU, INDIVIDUALLY AND AS ACTING SUPERVISOR OF THE NEW YORK STATE DEPARTMENT OF EDUCATION, OFFICE OF FACILITIES PLANNING, DEFENDANTS.



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.

BACKGROUND

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:

"Congress has expressly emphasized that providing wireless telephone services furthers an important public purpose as the federal statute under which plaintiff was issued its PCS license communicates. The statute . . . directs the Commission to issue wireless communications licenses, to make available, so far as possible, to all the people of the United States, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purposes of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication. . . ."

65 F. Supp. 2d at 155.

This Court also found

". . . 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."

65 F. Supp. 2d at 158.

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 ...


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