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April 25, 2012

Telecommunications Act of 1996 Struggles to Keep Up with Technology

The Telecommunications Act of 1996 ("the Act") overhauled federal regulation of telecommunication companies in order to "provide for a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services."
See § 332(c)(7).

In Clear Wireless LLC v. Building Dep't of the Village of Lynbrook, et al, No. 10-CV-5055 (E.D.N.Y., March 8, 2012), the plaintiff ("Clearwire") applied for a special use permit from the Village to construct and operate a facility consisting of antennas and related equipment to provide 4G wireless broadband internet service for a broad area covering portions of Nassau County, Queens, and Suffolk County. According to the Court's decision, it did not include any cellular or other telecommunication equipment.

The Village held two public hearings on the application, which included testimony from five expert witnesses. The Village Board denied the application, claiming that because 4G service was an "advanced Internet product," the application was not entitled to the deference generally afforded telecommunications applications under the Act. The Village Board also concluded that the proposed facility would increase the height of an already non-conforming building in violation of the Village Code, that the facility was not necessary, and that Clearwire had failed to show that the proposed location was the only one suitable for its installation.

Clearwire subsequently sued the Village claiming that the Village's grounds for denial violated the Act. Both sides moved for summary judgment. The Court noted that the question was one of first impression in the Second Circuit, and could find only one similar case nationally (Arcadia Towers LLC v. Colerain Tp. Bd. Of Zoning Appeals, No. 10-CV-585 (S.D. Ohio 2011)). Focusing on the plain language of the Act and interpretations offered by the Federal Communications Commission, the Court concluded that broadband internet services did not fall within the definition of "personal wireless services," and therefore the plaintiff's application was not entitled to special consideration by the Village Board.

Agreeing with the Arcadia Towers court that "the law has not kept up with changes in technology," the E.D.N.Y. Court found that it had no basis to determine that broadband internet service was covered by the Act, despite proffered evidence of the importance of the wireless broadband internet access, and Congressional and FCC statements on the need to encourage the proliferation of 4G and similar technologies. The Court made clear in its decision that "commingled" siting applications where broadband internet service was part of the same infrastructure as personal wireless services would still be protected by the Act. It remains to be seen whether ultimate relief will stem from an appellate court or federal legislation to bring the Act up to date with today's technological innovations.

For more information. Please contact Jeff Davis, Chair of the Telecommunications Practice Area at (315) 425-2823 or by e-mail at jdavis@hblaw.com.

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