T. Scott Thompson, Elizabeth A. Drogula, Davis Wright Tremaine LLP, Washington, District of Columbia, Lacy H. Koonce, III, Davis Wright Tremaine LLP, New York, New York, Counsel for Plaintiff.
Andrew D.H. Rau, James C. Dalton, Amanda J. Sundquist, Unruh, Turner, Burke & Frees, P.C., West Chester, Pennsylvania, Counsel for Defendants.
OPINION AND ORDER
CATHY SEIBEL, District Judge.
Plaintiff Crown Castle NG East Inc., and its predecessor in all relevant interests, NextG Networks of NY, Inc., sought permission to install a Distributed Antenna System ("DAS") in the Town of Greenburgh, New York ("Town"). The Town, after a protracted negotiation/application process, denied Plaintiff's applications. Plaintiff brought this action seeking declaratory and injunctive relief under 47 U.S.C. §§ 253, 332(c)(7)(B)(ii), and 332(c)(7)(B)(iii), provisions of the Federal Telecommunications Act of 1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56. Before the Court are Defendants' Motion to Dismiss the First Amended Complaint, (Doc. 27), and Plaintiff's Motion for Summary Judgment, (Doc. 32). The TCA requires expedited treatment of actions brought under Section 332(c)(7), see 47 U.S.C. § 332(c)(7)(B)(v), and thus, upon completion of the parties' briefing, I have taken up the Motions out of turn. For the following reasons, Defendants' Motion is GRANTED IN PART and DENIED IN PART and Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.
For purposes of Defendants' Motion to Dismiss, I accept as true the facts, but not the legal conclusions, as set forth in Plaintiff's First Amendment Complaint for Declaratory and Injunctive Relief and Request for Expedited Treatment ("FAC"), (Doc. 25). For purposes of Plaintiff's Motion for Summary Judgment, I resolve all factual disputes in favor of the Defendants as non-moving party. In any event, the relevant facts are largely undisputed; I will specifically note where they are not.
A. The Parties
Plaintiff is a "carrier's carrier that designs and installs fiber-optic based networks to improve wireless coverage and capacity." (P's 11/13/09 Letter Encl. 5, at 41.) Plaintiff does so by installing a DAS in a given area - that is, a system consisting of "[n]odes, " each having a "small, low-power antenna, laser and amplifier equipment for the conversion of RF [ i.e., radio frequency] signals to optical signals (and vice versa, i.e., from optical to RF), that is connected to the antenna, fiber optic lines, and associated equipment such as power supplies." (FAC ¶ 11.) A DAS expands wireless coverage of a given provider by a so-called "handoff and transport, " ( id. ¶ 10) - that is, receiving an RF signal from a wireless customer ( e.g., a mobile phone user) at a node antenna (the handoff), converting the RF signal to an optical signal and transporting it through Plaintiff's fiber optic lines to another site (the transport), and returning the optical signal to the wireless service provider for either routing elsewhere or interconnection with the public telephone network, ( see id. ¶ 12; see also P's 56.1 ¶¶ 7-10). In other words, Plaintiff's DAS can provide a wireless provider with a conduit from a mobile phone user to the provider's network, thereby extending that network without the provider erecting a cell tower in the area.
Plaintiff is not itself a commercial mobile radio service ("CMRS") or a wireless service provider. (P's 56.1 ¶ 14.) It has, however, obtained a certificate of public convenience and necessity ("CPCN") from the New York State Department of Public Service "to operate in New York State as a facilities-based provider and reseller of telephone service, without authority to provide local exchange service." (Delsman Decl. Ex. 1, at 1 (emphasis in original).) Although Plaintiff's proposed DAS is intended to initially serve one customer, MetroPCS, (Determination 12),  it will apparently be able to accommodate more, ( see FAC ¶ 9; Ds' Eng'g Report 4 ("[I]t may be possible for the system to accommodate another carrier at a similar frequency in the future."); Ds' Supp. Eng'g Report 1-2 ("[I]t is possible that additional wireless carriers may utilize NextG's DAS system in the future should the application be approved and equipment installed.")).
The Town of Greenburgh is a municipality in Westchester County, New York, which consists of a number of incorporated villages and an unincorporated section of less than twenty square miles. ( See Ds' 56.1 ¶ 28.) Plaintiff seeks to locate the nodes for its proposed DAS on Town-owned rights-of-way within the unincorporated section of Greenburgh. ( See P's 56.1 ¶ 29.)
B. The Application Process
1. Getting to the Antenna Review Board
a. Plaintiff's Initial Request for a Right of Way Use Agreement
On November 13, 2009, Plaintiff submitted a letter to the Town Supervisor with the subject line "Application for License Agreement between the Town of Greenburgh and NextG Networks for Use of the Public Rights-of-Way, " stating that the letter was being "submitted to the Town in accordance with Section 253 of the [TCA] and the relevant New York statutes governing the use of the public way by telecommunications carriers for the provision of their services." (P's 11/13/09 Letter 1.) It attached a proposed "Right of Way Use Agreement" ("RUA"), ( see id. at 14-36), which would "authorize the installation and operation of [Plaintiff's] equipment and network in, under, and over the public ways of the Town, " ( id. at 2), and would give the Town compensation for the same, ( see id. at 3). The letter made clear the preliminary nature of the request. ( See id. ("[T]he design [of the proposed DAS] is not yet finalized to the point where NextG can specify the exact Town-owned poles that it would like to use.").) The letter further suggested that Plaintiff's "voluntary application" under Section 253 was not legally necessary. ( See id. at 3-4.) Plaintiff requested a response from the Town within 30 days, stating that in the absence of a response it would "assume that the Town does not wish to proceed with an agreement." ( Id. at 4 (emphasis in original).) The Town apparently ignored the letter. ( See P's 56.1 ¶ 25.)
Several months later, Plaintiff followed up with a letter stating that it assumed the Town did not wish to proceed with the agreement proposed in Plaintiff's first letter, and indicating that Plaintiff would "soon be making an application for permits pursuant to Article II, § [ sic ] 430 et seq. of the Town of Greenburgh code." (P's 1/29/10 Letter 1-2.) The letter specifically referred to time limits for processing applications set forth in the so-called Shot Clock Order of the Federal Communications Commission ("FCC"),  and requested that "its site-specific application under the code... for a permit as outlined in § 430-3.A" be processed within those time limits. ( Id. at 2.)
b. Plaintiff's Chapter 430 Application
On March 25, 2010, Plaintiff submitted to the Town's Commissioner of Public Works what it dubbed "Permit Applications for NextG Networks of NY, Inc., " seeking permission under Chapter 430 of the Town Code "to install telecommunications/utility equipment, together with associated fiber, on one (1) new utility pole to be installed by NextG in the Town right-ofway and twenty (20) existing utility poles, pursuant to plans attached hereto." (P's 3/25/10 Letter 1.) In its letter, Plaintiff stated that it was a "duly certificated and regulated utility company, " and noted that its application materials were not being submitted on the form required by Section 430-3(A) of the Town Code because it and its contractor "made several good faith attempts to obtain this form from [the Town's] department staff on March 22, 2010 without success." ( Id. at 1-2.) The Town and Plaintiff met on March 30, 2010 to discuss the March 25, 2010 Letter. ( See P's 6/7/10 Letter 1.)
Apparently having received no response after 30 days, Plaintiff sent a follow-up letter to the Commissioner of Public Works asserting that, because the Town had not indicated that Plaintiff's Chapter 430 Application was incomplete within 30 days of its submission, the application "is now deemed complete by operation of default." (P's 4/27/10 Letter 1 (citing Shot Clock Order, 24 F.C.C. Rcd. at 14015).) Plaintiff went on to "remind" the town of the time periods to process the application under the Shot Clock Order, and to reiterate that it remained open to negotiating an RUA or the like with the Town. ( Id. at 1-2.) As of June 7, 2010 - 74 days after Plaintiff's March 25, 2010 Letter - the Town had yet to respond. ( See P's 56.1 ¶ 35.)
Plaintiff sent a follow-up letter on June 7, 2010 to both the Commissioner of Public Works and the Building Inspector expressing concern about the Town's silence, and stating that it would "assume that the Town concurs that no permits or authorizations are required for the attachments" if no response was received within the Shot Clock Order time period. ( See P's 6/7/10 Letter 1-2.) Although the Commissioner of Public Works did not respond to this letter, (P's 56.1 ¶ 36), the Building Inspector, who apparently received it on June 15, did respond, indicating that he was forwarding Plaintiff's April 27, 2010 Letter to the Town's Antenna Review Board ("ARB") for processing under the Town's Antenna Law,  (Ds' 6/15/10 Letter).
2. Completeness Proceedings Before the Antenna Review Board
a. The June 28, 2010 Meeting
On June 16, 2010, Catherine Lederer-Plaskett, the Chairperson of the ARB, issued a notice of a public hearing to be held on June 28, 2010 at which the ARB was to "review an application from MetroPCS" and to provide "a review of the application process for [Plaintiff]." (Ds' Ex. D-3.) Plaintiff's attorney attended this meeting, at which the ARB reviewed the antenna application process. (P's 56.1 ¶ 39; see Ds' 6/29/10 Letter.) The next day, the Chairperson sent a letter to Plaintiff indicating that its materials "do not constitute an application" under Section 285-37(A)(16) of the Town Code and that "an application is needed for each site and all application materials for a site must be submitted as a cohesive report." (Ds' 6/29/10 Letter.)
b. The July 20, 2010 Meeting and Plaintiff's July 22, 2010 Letter
On July 20, 2010, Peter Heimdahl, Plaintiff's Senior Director of Government Relations, met with the Town's Building Inspector and Thomas Madden, the Commissioner of the Town's Department of Community Development and Conservation, regarding the materials submitted to the Town. (P's 56.1 ¶ 40.) Plaintiff later disputed that the Town's Antenna Law applied to it as a "regulated public utility... seeking to conduct business in the Town's public ways, " but agreed to an analysis under the Antenna Law as to whether its proposed facilities could be classified as "as-of-right" under Section 285-37(A)(8) of the Town Code; if so characterized, Plaintiff agreed to a review by the ARB for aesthetic considerations. ( See P's 7/22/10 Letter.) Madden responded to Plaintiff's letter - which included detailed siting proposals - with an email indicating that most of the proposed sites were "as-of-right." (Ds' 8/6/10 E-mail.)
c. Plaintiff's September 2010 Section 285-37(A)(8) Application
On September 8, 2010, Plaintiff submitted to the Building Inspector "an application for permits, if so required, pursuant to § 285-37A et seq. ... to install telecommunications/utility equipment, together with associated fiber, on one (1) new utility pole to be installed by NextG in the Town right-of-way and fourteen (14) existing utility poles, pursuant to plans, required information, and Town application forms attached hereto." (P's 9/8/10 Letter 1.) Relying on Madden's August 6, 2010 E-mail, Plaintiff sought "as-of-right" treatment of its application. ( See id. ) Plaintiff also noted that the technical information it was providing in accordance with the Antenna Law was based on studies performed at a Long Island site with "the same equipment and specification as the equipment NextG hereby submits to the Town under this application." ( Id. at 2.)
On September 10, 2010, the Building Inspector acknowledged receipt of Plaintiff's application and forwarded it to the ARB for a completeness review, but also indicated that his department "does not accept applications for work performed in the Town's right-of-way" and asked Plaintiff to forward the application and fees to the Commissioner of the Department of Public Works. (Ds' 9/10/10 Letter.) Within 30 days of this submission, the Chairperson of the ARB rejected Plaintiff's Section 285-37(A)(8) Application. (Ds' 10/1/10 Letter ("The materials submitted do not constitute an application in accordance with the Town's Antenna Law.").) In her rejection letter, the Chairperson did not set forth in what respects the application was deficient, but invited further communication on the subject by phone or in person. ( See id. )
The Chairperson also informed Plaintiff (by telephone on October 5, 2010) that Madden had no authority to determine whether its proposed sites qualified for "as-of-right" treatment, ( see P's 56.1 ¶ 51; Ds' 56.1 ¶ 51), and soon thereafter, the Building Inspector informed Plaintiff that none of its proposed sites qualified as "as-of-right" locations, ( see P's 56.1 ¶ 53). The next day, Plaintiff forwarded Madden's August 6, 2010 E-mail to the ARB (presumably to show what it considered a prior "as-of-right" determination by the Town), and requested sample applications deemed acceptable by the ARB. (P's 10/19/10 E-mail.)
d. Plaintiff's November 2010 Section 285-37(A)(9) Applications
On November 23, 2010, Plaintiff submitted a second round of Section 285-37 applications, this time for all 21 proposed sites, seeking a special permit under Section 285-37(A)(9). ( See P's 11/23/10 Letter.) The ARB reviewed these applications at a public meeting on December 14, 2010. (Heimdahl Decl. Ex. 14, at 2; P's 56.1 ¶ 55.) The record is unclear as to what happened at this meeting. Plaintiff alleges that no action was taken then. (FAC ¶ 51; P's 56.1 ¶ 55.) Defendants assert that the ARB advised Plaintiff of numerous deficiencies in its applications under Section 285-37(A)(16). ( See Ds' 56.1 ¶ 55; Lederer-Plaskett Decl. ¶ 19.)
Following the December 14, 2010 meeting, Plaintiff, along with members of the ARB and Councilman Francis Sheehan (the Town Board's liaison to the ARB), went on site visits to review Plaintiff's proposed locations. (P's 56.1 ¶ 56.) Plaintiff alleges that as a result of these visits, it agreed to shift four of its proposed locations to sites preferred by the ARB. ( Id.; FAC ¶ 51.) Defendants, not inconsistently, assert that these new locations were not "as-of-right." (Ds' 56.1 ¶ 56.)
On February 8, 2011, Plaintiff sent a letter to the Town Attorney (copying most Town officials involved with the process) again asserting that the Town's Antenna Law should not apply to its proposed "installation of public utility equipment in the Town's public right-of-way, " but requesting relief from strict compliance with certain provisions of the Antenna Law, to the extent it did apply, such as those requiring vicinity maps showing most or all nearby structures within 1500 feet of the proposed installation. ( See P's 2/8/11 Letter 1-2 (referencing Town of Greenburgh, N.Y., Code § 285-37(A)(16)(q)-(r)).) The Town Attorney apparently never responded.
e. Plaintiff's March 2011 Template Application and Subsequent Revisions
On March 15, 2011, Plaintiff submitted to the ARB a single "template" application, the purpose of which was to ease the burden on both parties by allowing them to focus the completion review on only one application initially. (P's 56.1 ¶ 60.) The ARB first reviewed the template application at a public meeting held on April 4, 2011, at which time the ARB identified numerous deficiencies in it. ( Id. ¶ 61.) On April 7, 2011, the Chairperson of the ARB issued an incompleteness letter, which again did not set forth the specific respects in which the template application was deficient. (Heimdahl Decl. Ex. 22, at 1.)
Thus began a series of revisions. The first set, ( see P's 56.1 ¶ 65 (5/9/11, six applications); id. ¶ 67 (5/16/11, seven applications)), was addressed at a public ARB meeting held on May 17, 2011, ( id. ¶ 68). Again, the ARB identified alleged deficiencies. ( Id. ¶ 69.) The second set of revisions was discussed at a public ARB meeting held on June 27, 2011. ( Id. ¶ 71; Heimdahl Decl. Ex. 14, at 9.) The ARB again identified deficiencies, [32 ...