Case 2:18-cv-00242-LDW-AKT Document 1 Filed 01/12/18 Page 1 of 10 PageID #: 15

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

NEW CINGULAR WIRELESS PCS, LLC

d/b/a AT&T Mobility,
Civil Action No. 18-242
Plaintiff,

v.

THE PLANNING BOARD OF THE TOWN OF EAST COMPLAINT

HAMPTON, THE TOWN OF EAST HAMPTON, THE
TOWN OF EAST HAMPTON ARCHITECTURAL
REVIEW BOARD, and THE TOWN OF EAST
HAMPTON BUILDING DEPARTMENT,

Defendants.

Plaintiff New Cingular Wireless PCS, LLC, by way of Complaint against defendants the

Planning Board of the Town of East Hampton, the Town of East Hampton, the Town of East

Hampton Architectural Review Board, and the Town of East Hampton Building Department,

hereby says:

PARTIES

1. Plaintiff New Cingular Wireless PCS, LLC (“AT&T”) is a Delaware Limited

Liability Company having an office at One AT&T Way, 3A212F, Bedminster, New Jersey.

2. Upon information and belief, defendant Planning Board of the Town of East

Hampton, New York (the “Board”) is a local government entity or instrumentality thereof duly

constituted and established pursuant to New York law and having an office at 300 Pantigo Place,

East Hampton, New York.

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3. Upon information and belief, defendant Town of East Hampton, New York (the

“Town”) is a local government entity or instrumentality thereof duly constituted and established

pursuant to New York law and having an office at 159 Pantigo Road, East Hampton, New York.

4. Upon information and belief, defendant Town of East Hampton Architectural

Review Board (the “Architectural Review Board”) is a local government entity or instrumentality

thereof duly constituted and established pursuant to New York law and having an office at 300

Pantigo Place, East Hampton, New York.

5. Upon information and belief, defendant Town of East Hampton Building

Department (the “Building Department”) is a local government entity or instrumentality thereof

duly constituted and established pursuant to New York law and having an office at 300 Pantigo

Place, East Hampton, New York.

JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331, as AT&T is asserting a claim arising under federal law, more particularly, 47 U.S.C. §

332(c)(7), enacted as part of the Telecommunications Act of 1996 (the “TCA”).

7. This Court has supplemental jurisdiction over all other claims herein, pursuant to

28 U.S.C. § 1367, as those claims form part of the same case or controversy and are related to

AT&T’s claims under the TCA.

8. Venue is proper in this District under 28 U.S.C. § 1391(b), as the defendants reside

or may be found in this District, the property that is the subject of this action is located in this

District, and the acts or omissions giving rise to this action occurred in this District.

9. Expedited review of this action is required pursuant to 47 U.S.C. § 332(c)(7)(B)(v).

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FACTUAL BACKGROUND

10. AT&T is a provider of personal wireless services pursuant to licenses issued by the

Federal Communications Commission (the “FCC”).

11. AT&T provides these services through an interlocking network of low-powered,

high-frequency, line-of-sight transceiver facilities that permit the efficient reuse of frequencies

located within the narrow sections of the electromagnetic spectrum allocated to AT&T by the FCC.

12. The radio signals used by AT&T to provide these services are subject to disruption

caused by topography, foliage, and man-made structures, as well as to range limitations inherent

in the use of low-powered signals that permit the frequency reuse on which a personal wireless

services communications system is predicated.

13. There currently exists an irregularly-shaped service gap in the Town within an area

extending from east of Osborne Lane to west of Stephen Hands Path, and from north of Rt. 27 to

north of Grape Arbor Lane (the “service gap”).

14. Within the service gap, a substantial number of users of personal wireless services

are unable to rely on their ability to use their personal wireless devices to make and maintain a

connection of reliable quality.

15. In particular, within the service gap, a substantial number of users of personal

wireless services located within structures cannot rely on their ability to use their personal wireless

devices to make and maintain a connection of reliable quality with 911 and Enhanced 911 (“E911”)

services.

16. Reliable access to 911 and E911 services from within structures by means of

personal wireless devices is an important public safety consideration given that 70% of 911 calls

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are made from personal wireless devices and over half of households nationally no longer utilize

landline service, relying instead on personal wireless services.

17. On September 1, 2011, the Town, by Resolution #2011-799, approved the

placement, on the Iacono Farm at 100-06 Long Lane, East Hampton, NY, of a 120-foot-tall tripod

lattice tower supporting a wind turbine whose blades reach a height of 136 feet above ground level

(the “Iacono tower”).

18. Resolution #2011-799, in approving the Iacono tower, recites a determination that

the Iacono tower “posed no danger to the safety or welfare of the public” and “would not adversely

affect the natural environment or character of the community.”

19. Resolution #2011-799, in approving the Iacono tower, also recites that the Iacono

tower “will be located within an area where the fall zone is within the property lines of the

aforementioned property.”

20. On January 26, 2015, AT&T submitted an application (the “application”) to locate

a personal wireless services facility (the “facility”) on a 0.016-acre portion of the 7.7-acre Iacono

farm, with the antennas mounted on the Iacono tower.

21. The Iacono tower is an existing non-wireless structure.

22. Section 255-5-50(2)(c) of the Town Code expresses a preference for locating

personal wireless services facilities on existing non-wireless structures over creation of new

ground-mounted personal wireless facilities.

23. As originally proposed, the facility would have included a dozen panel antennas

mounted on a triangular platform at a height of 95 feet above ground level, with associated radio

heads and cabling as well as an equipment shed at the base of the tower.

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24. At the suggestion of the Town Planning Department, AT&T changed the

configuration of the facility to reduce the number of antennas to nine and eliminate the mass of

the platform by mounting the nine antennas (each 55 inches tall and 11.85 inches wide) in three

tiers, flush-mounted on each leg of the tower, at heights of 95 feet, 85 feet and 75 feet above ground

level.

25. The antennas of the facility will not project more than 20 inches from the face of

the mounting structure.

26. Section 255-5-50(2)(e) of the Town Code expresses a preference that antennas for

personal wireless services facilities be mounted within 20 inches of the supporting structure.

27. The top of the highest antenna of the facility would be more than 20 feet below the

top of the lattice tower and more than 30 feet below the tip of the wind turbine blades.

28. The antennas of the proposed facility would be painted a neutral blending color of

the Board’s choice.

29. Sections 255-5-50(2) and (3) of the Town Code express preferences for minimizing

the height of antenna placement in relation to the height of the mounting structure, and coloring

personal wireless facilities to be complementary with natural tones.

30. By making use of neutral-colored, flush mounted antennas located well below the

maximum height of an existing structure, AT&T minimized the visual impact of the facility in

accordance with Section 255-5-50(3)(b) of the Town Code.

31. The facility would comply with all structural requirements imposed by Section 255-

5-50(4)(a) of the Town Code.

32. The facility will comply with all requirements imposed by Section 255-5-50(7) of

the Town Code concerning radio frequency radiation emissions.

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33. The facility will comply with all requirements imposed by Section 255-5-50(7) of

the Town Code concerning noise.

34. The facility’s equipment shed at the base of the tower would be fenced, shielded

from view by 10-foot-tall red cedars, and set back over 570 feet from Long Lane behind numerous

other existing structures on the Iacono Farm.

35. The record contains credible and unrebutted evidence, including the illustrations

set forth herein, depicting the current appearance of the Iacono tower (left) and its appearance with

the modifications necessary to install the facility (right).

36. Given the minimal width, height and color of the flush-mounted antennas, the

modifications to the Iacono tower necessary to install the facility would have, at most, a de minimis

additional visual impact on neighboring properties.

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37. The facility will cause no material increase in light, traffic or demand for utilities

associated with the Iacono tower.

38. The use of 0.016 acres of the 7.7-acre Iacono Farm by the facility will not interfere

with the existing agricultural use of the Iacono Farm.

39. The use of 0.016 acres of the 7.7-acre Iacono Farm for a personal wireless services

facility would not alter the status of the Iacono Farm as an agricultural use under New York law.

40. The record contains credible and unrebutted evidence that the facility will have no

material impact on property values.

41. The facility would remedy the service gap by providing reliable personal wireless

services in the service gap, including substantially increasing the area of reliable in-structure

access to 911 and E911 services in the service gap.

42. The Board held public hearings on AT&T’s application on March 23, 2016 and

August 9, 2017, and public work sessions on the application on April 22, 2015, January 27, 2016,

April 27, 2016, September 21, 2016, March 8, 2017, June 28, 2017, September 13, 2017 and

October 25, 2017.

43. The application was denied by a Finding and Determination of the Board adopted

December 13, 2017.

Count I

44. AT&T incorporates the paragraphs set forth above as if set forth at length herein.

45. 47 U.S.C. § 332(c)(7)(B)(iii) requires that “any decision by a State or local

government or instrumentality thereof to deny a request to place, construct or modify personal

wireless service facilities shall be in writing and supported by substantial evidence contained in a

written record.”

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46. Under New York law, AT&T is a public utility with respect to the provision of

telecommunications services.

47. Under New York law, a public utility providing telecommunications services

seeking approval of a proposed facility need only establish that there are gaps in service, that the

location of the proposed facility will remedy those gaps, and that the facility presents a minimal

intrusion on the community.

48. The written record of the proceedings before the Board establishes the existence of

gaps in service in the area to be served by the facility, that the location of the facility would remedy

those gaps, and that the facility would represent, at most, a minimal intrusion to the community

outweighed by the public utility benefit of the facility.

49. The record does not contain substantial evidence supporting denial of the

application under New York law.

Count II

50. AT&T incorporates the paragraphs set forth above as if set forth at length herein.

51. The application is a request to place, construct, or modify a personal wireless

facility within the meaning of 47 U.S.C. § 332(c)(7).

52. 47 U.S.C. § 332(c)(7)(B)(i)(II) prohibits denial of an application for a personal

wireless facility where denial of that application would prohibit or have the effect of prohibiting

the provision of personal wireless services.

52. The area to be served by the facility is a significant gap in service under the TCA

(the “significant gap”), as without the facility, a substantial number of users of personal wireless

services in that area cannot receive reliable personal wireless services, including 911 and E911

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services, as they are unable to rely on their ability to use their personal wireless devices to make

and maintain a connection of reliable quality.

53. The facility would be the least intrusive means of providing reliable personal

wireless services, including 911 and E911 services, to users of personal wireless services in this

significant gap.

54. The alternate “Brush Dump” facility discussed in the Findings and Determination

of the Board would not provide reliable personal wireless services, including 911 and E911

services, to users of personal wireless services in the significant gap.

55. The alternate “Brush Dump” facility would not be the least intrusive means of

providing reliable personal wireless services to users of personal wireless services in the significant

gap.

56. Under 47 U.S.C. § 332(c)(7)(B)(i)(II), denial of the application has the effect of

prohibiting the provision of personal wireless services in the significant gap.

Count III

57. AT&T incorporates the paragraphs set forth above as if set forth at length herein.

58. The application complied with all applicable requirements of the Town Code.

59. The denial of AT&T’s appeal by the Board is arbitrary, capricious, unreasonable,

and an abuse of discretion in violation of State law including but not limited to CPLR Article 78.

WHEREFORE, plaintiff AT&T requests judgment against the Defendants as follows:

A. Expedited disposition of this action pursuant to 47 U.S.C. § 332(c)(7)(B)(v);

B. Reversal of the denial of the application for violation of 47 U.S.C.

§ 332(c)(7)(B)(iii);

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C. Reversal of the denial of the application for violation of 47 U.S.C. § 332(c)(7)(B)(i)

(II);

D. Reversal of the denial of the application for violation of CPLR Article 78;

E. Entry of an Order directing Defendants to grant all variances, permits and approvals

necessary to allow construction of the proposed facility; and

F. Such other relief as this Court may deem equitable and just.

Respectfully submitted,

By: /s/Andrew B. Joseph

Andrew B. Joseph
DRINKER BIDDLE & REATH LLP
1177 Avenue of the Americas, 41st Floor
New York, NY 10036-2714
Tel.: (212) 248-3148
Fax: (212) 248-3141
Andrew.Joseph@dbr.com

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