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Federal judge orders town to allow cell tower

‘Public necessity’ standard should have been used

A federal judge has overruled local officials and ordered a Chautauqua County town to approve an application to erect a wireless cell tower.

Up State Tower Co. LLC, which builds telecommunications towers for Blue Wireless, filed an application in July 2015 to build the tower at 1710 Foote Ave., in the town of Kiantone, which is about five miles south of Jamestown.

In December 2016, town officials denied the application, claiming Up State failed to show that the tower is the least intrusive means to close a gap in Blue Wireless’ coverage, or that a tower at the location and height requested is needed to close the gap in coverage.

In a decision filed Monday, U.S. District Court Judge Michael A. Telesca ruled that the town must approve the application, along with any necessary variances.

Up State claimed the town’s decision violated the federal Telecommunications Act (TCA) of 1996.

The TCA recognizes local authority over the siting of wireless facilities, but the methods used to make siting decisions are subject to judicial oversight, under the TCA.

“Substantively, the TCA provides that no state or local law may prohibit or have the effect of prohibiting the provision of personal wireless services,” Telesca wrote in the 30-page ruling.

Under the TCA, a local government’s decision to deny a request to build a cell tower must be based on “substantial evidence” in the record, Telesca wrote.

Substantial evidence means “less than a preponderance, but more than a scintilla of evidence,” Telesca wrote, quoting from Universal Camera v. NLRB, a 1951 Supreme Court of the United States decision.

The Supreme Court also described substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In New York state, cell phone companies are considered public utilities, so a cell phone company’s application is judged on a different standard than other applications for a use variance.

The wireless provider must show that the tower is needed to provide safe and adequate service and there are compelling reasons, economic or otherwise, which make it more feasible, Telesca wrote, referring to Omnipoint Communications Inc. v. City of White Plains, a 2005 Second Circuit case.

The applicant must show there are gaps in service, the location of the proposed tower will eliminate the coverage gaps, and the tower will be a “minimal intrusion on the community,” according to T-Mobile Ne. LLC v. Town of Islip, a 2012 decision from the U.S. District Court for the Eastern District of New York.

Kiantone officials denied Up State’s application because Up State supposedly did not show that the proposed tower would be the least intrusive means to close the coverage gap, or that a tower at that location and height was needed to close the gap.

The denial was based on Up State’s supposed failure to investigate other, less intrusive sites.

But the “least intrusive” standard is not the correct standard in connection with a substantial evidence claim, Telesca wrote.

The correct standard is the public necessity standard, under New York law.

“To establish public necessity, the carrier must demonstrate not that the proposed facility was the ‘least intrusive means,’ but rather that the proposed facility was more feasible than other options,” Telesca wrote.

The Board also denied the application on the grounds that Up State did not show a need for the tower at that location and height to close the gap in coverage. But the Board did not meaningfully or substantively dispute the existence of a significant coverage gap, Telesca wrote.

Up State provided documents and testimony detailing the gap in coverage.

The town is represented by Paul Webb Jr. He said town officials have not decided whether to ask Telesca to reconsider the decision of appeal to the Second Circuit.

Up State is represented by Jon P. Devendorf, an attorney at Barclay Damon LLP, in Syracuse. He did not immediately respond to a telephone message seeking comment.

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