On June 26, Judge Edward Korman of the Eastern District of New York ruled in favor of ExteNet Systems in its lawsuit against the Town of North Hempstead.
ExteNet filed an application with the town to install 16 cell nodes on utility poles in the unincorporated areas of Port Washington. Cell nodes are typically used to boost areas where the network coverage is poor. On Jan. 22, ExteNet filed a lawsuit against the town alleging the town failed to approve or deny the application by the deadline in late December. The lawsuit states that under Federal Communications Commission (FCC) ruling, known as a Shot Clock Order, an entity is required to answer an application request within a reasonable amount of time, (90 or 150 days depending on the application).
The town amended the town code in March 2019, which states that the applicant must apply for a right-of-way (ROW) application before they can apply for an antenna location or construction permit. Counsel for the Town of North Hempstead disputed the claim stating that ExteNet’s application submitted to the town did not trigger the shot clock. The town was set to have a public hearing on ExteNet’s 16 cell node applications on March 19, but due to the coronavirus, that meeting was indefinitely postponed.
According to Korman’s letter “it is undisputed that a Right Of Way Use Agreement (ROW Agreement) is necessary before ExteNet can deploy its sixteen proposed small wireless facilities, one of which would be placed on a new structure. Thus, as a matter of law, ExteNet’s application for an ROW Agreement activated a ninety-day ‘shot case.’ It is also undisputed that, after the town received additional materials from ExteNet that were intended to cure deficiencies in ExteNet’s initial application, on or about Oct. 1, 2019, the town took no action on the application for over ninety days. As the town has produced no reasonable explanation for this delay, ExteNet is entitled to summary judgment on its claim that the town failed to act within a reasonable period of time.”
Gordon Tepper, the director of communications for the Town of North Hempstead stated in an email that the town is “disappointed” with the court’s decision and they are “considering their options going forward.”
As part of the proposed judgment, ExteNet’s application to install the cell nodes would be granted “immediately,” however Korman has not issued a full judgment on that matter.
Michael Hill, the assistant general counsel of regulatory affairs at ExteNet Systems, said that ExteNet is “pleased” by the courts ruling in the case against the town.
“We look forward to improving wireless connectivity for North Hempstead, including its residents, businesses and visitors,” Hill said.
Last year, ExteNet also sued four villages including Flower Hill, Lake Success, Plandome and recently, Plandome Manor. All of these lawsuits are still pending further litigation. There is no word yet as to how this judgment may affect other lawsuits.