Right to Place Telecommunication Infrastructure

A legal decision in New York State found that the Village of Flower Hill reserved the right to deny ExteNet, an agent of Verizon Wireless, from placing small cell sites within the Village. The decision raises interesting legal and other issues about telecommunications infrastructure. ExteNet was hired by Verizon Wireless to place 66 small cells site in and around the Village, including 18 within the Village, for the stated purpose of strengthening the existing 4GLTE network. Ultimately, the denial was on the grounds that the Village didn’t see any evidence of current gaps in 4GLTE cellular coverage. The case boiled down to language included in the Telecommunications Act of 1996 – language that has been described in some cases as ambiguous. ExteNet cited the provisions of the Act that says that no state or local government shall prohibit the ability of an entity to provide any interstate or intrastate telecommunications service. The Village countered with language also from the Act that says that the Federal Communications Commission cannot preempt the rights of state or local governments to manage the public rights-of-way in a competitively neutral and nondiscriminatory manner. The Court ultimately decided in favor of the Village using additional language from the Act that says that any denial for the placement of telecommunications infrastructure must be supported by substantial evidence. This case says that the community can deny placement if there is evidence to support the denial. The evidence could be something as simple as not wanting construction that disturbs the paved streets.