The Flower Hill decision establishes an important legal basis for denying 5G and small cell applications for towns and cities in Connecticut, New York and Vermont.
In a landmark legal decision in July of 2022, Judge Frederic Block, Senior United States District Judge for the Eastern District of New York, found that the Village of Flower Hill, NY, was justified in denying the application of ExteNet (acting as an agent for Verizon Wireless) to place 18 small cell antennas in the Village.
The Judge quoted from the 1996 Telecommunications Act, citing the provision that "nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities."
He noted that other courts have found the Act to be "in many important respects a model of ambiguity or indeed even self-contradiction." Nevertheless, he reasoned, a plain reading of the text supports the claim by the Village that it has acted legally, establishing a strong written record and denying the applications based on legitimate principles.
Most importantly, the Judge ruled that the provisions of the 1996 Act do not necessarily apply to the new uses of wireless to provide broadband and other services, as the FCC claimed in a 2018 Ruling. "Improved capacity and speed are desirable (and, no doubt, profitable) goals in the age of smartphones," he wrote, "but they are not protected by the Act."
The judge quoted a previous court case, in which the court found that "It is is not up to the FCC to construe the [1996 Telecommunications Act] to say something it does not say, nor up to the Court to find broadband communication encompassed by the law.”
This decision is at odds with a very confusing decision from the Ninth Circuit in California concerning the legitimacy of the FCC's action and whether or not Congress intended the Telecommunications Act to apply not only to talk and text, but to a broad array of new services. The Flower Hill case is being appealed to the Second Circuit; if the Appeals Court agrees with Judge Block the issue could go to the Supreme Court.
Nevertheless, for the moment, at least in the Eastern District of New York, local governments should consider denying permits for small cell antennas until and unless the applicant can prove that there is a significant gap in phone coverage in the area.
A copy of the judge's decision can be found here.
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