Town Violated “Shot Clock Order” Federal Court Decides

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The case of Up State Tower Co., LLC v. Town of Kiantone ended when the district court in New York state decided the town interfered with the deployment of wireless services, but it offers little clarity for the situation. Up State Tower Co. sought to provide a cell tower for the area’s consumers over a year ago. After a ten-month battle, the court ruled the Town of Kiantone violated Section 332(c)(7)(B)(ii) of the Communications Act, which establishes tower applications should be acted upon within 150 days of submission.

While the court ruled the town violated the code, it did not issue an order requiring Kiantone to immediately grant the application, which is a common remedy according to JD Supra Business Adviser. Instead, the town will be given twenty days to make a final decision. In the process of issuing a decision, the court made several significant findings. It established Up State Tower’s requests to continue public hearings did not equate to extending the FCC’s Shot Clock. Additionally, it recognized the town’s notice was not issued until four months after the application was submitted, instead of within the required thirty-day period after submission.  

According to analysts, deciding not to automatically grant the tower application contradicts the court’s decision in a similar case, Bell Atlantic Mobile of Rochester, L.P. v. Town of Irondequoit, in 2012. T. Scott Thompson explains the end result of the case was to send the application back to the town that delayed action, without a clear remedy to the situation. Thompson writes, “Certainly, the lack of clarity that leads to the outcome in Kiantone – with the court correctly finding a violation of the Act, but failing to impose a meaningful remedy – may prompt action by the FCC or Congress, or both.”

December 19, 2016

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