New York Town Challenges Applicability of FCC Order to 4G LTE DAS Configurations

Contact: David Bronston and Douglas Dimitroff and Kimberley Nason, Phillips Lytle
Posted Jan 2, 2019

On May 24, 2017, telecommunications facility provider Crown Castle NG East LLC (“Crown Castle”) filed a complaint against the Town of Hempstead (“Town”) in the U.S. District Court for the Eastern District of New York, alleging various violations of Sections 253 and 332 of the federal Communications Act of 1934, 47 U.S.C. §§ 253, 332. Following the FCC’s September 2018 Declaratory Ruling & Third Report & Order, In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., WT Docket Nos. 17-79, 17-84, FCC 18-133 (Sept. 26, 2018) (“FCC Small Cell Order”), Crown Castle filed a Notice of Supplemental Authority, which argued that the FCC Small Cell Order provided critical clarification of a number of issues in dispute in the litigation. The Town responded to Crown’s Notice of Supplemental Authority with a letter which denied the applicability of the FCC Small Cell Order to the present litigation. The Town in its letter argued that the 4G LTE services provided by Crown Castle’s distributed antenna system (“DAS”) facilities are broadband information services rather than telecommunications services, and that the proposed DAS sites are not “small wireless facilities” as defined by the FCC.

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