Town Asks Judge To Dismiss Lawsuit Brought By ExteNet

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The proposed 16 nodes are located in Port Washington, north of the Village of Plandome Manor. (Photo source: Google Images)

On May 27, attorneys representing the Town of North Hempstead asked a judge to dismiss the lawsuit ExteNet brought against the town. 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.

The town was set to have a public hearing on ExteNet’s 16 cell node applications on March 19, but due to the coronavirus pandemic, the meeting was indefinitely postponed. The board has been unable to approve ExteNet’s application for a right-of-way agreement until a public hearing can be held.

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.

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 wanted to avoid creating future liability under the TCA’s prohibition of anti-competitive behavior by creating one set of rules for ExteNet and another for every other provider,” Town counsel explained in the lawsuit. “ExteNet was demanding special treatment, while the town was trying to establish procedures to create a fair and balanced regulatory environment within in the town, as required by the TCA and the FCC.”

Christopher M. McDonald an Albany-based attorney with Whiteman Osterman & Hanna LLP said in court documents from May 8 that, “ExteNet has chosen to harp on a few facts which, taken out of context, attempt to suggest some nefarious plot on behalf the town to block or delay ExteNet’s application. In truth, the town has been more than patient with ExteNet’s complete disregard for the town’s procedures and legal obligations.”

ExteNet argues that the court should reject this circular reasoning based on the fact that the “town cannot seriously claim that its lengthy application process is ‘necessary for maintenance of the rights-of-way’ but makes absolutely no showing of any kind as to why the ROW Agreement application process is prohibitive. They offer no proof, as is their burden as the moving party seeking summary judgment, that the length of the process to obtain a ROW Agreement is discriminatory, competitively biased, or that is has the effect of discouraging or precluding providers from entering the market.”

Anton Media Group reached out to the Town of North Hempstead regarding the lawsuit, but a spokesperson for the town stated that “the town would not comment on pending litigation.” Town of North Hempstead Supervisor Judi Bosworth last commented on the application in her State of the Town Address, which she delivered in January.

“We have heard from many residents who are alarmed at the aggressive tactics of the companies who want to install upgraded 5G cell phone transmission equipment in residential areas,” Bosworth said in her January speech. “There are many things that need to be taken into consideration and we feel that the wireless industry and the FCC are trying to drown our voices out. Instead of listening and trying to address the concerns of the communities, they seem determined to sue their way into our backyards whether we like it or not. We shouldn’t have to endure that kind of bullying and we should have some say in where these installations can and cannot be placed.”

According to a letter written by McDonald on May 1, the town is looking to pursue mediation with ExteNet.

“I am writing to advise the Court that the town is interested in pursuing mediation of this matter,” McDonald wrote. “Towards that end, I have conferred with opposing counsel to discuss the parameters of the proposed mediation.”

At the end of May, Magistrate Judge Sanket J. Bulsara of the U.S. District Court for the Eastern District of New York ordered an in-person settlement conference to take place on Oct. 14 in Brooklyn. Anton Media Group reached out to ExteNet but they would not provide further comment regarding the ongoing lawsuit against the town.

In 2019, ExteNet also sued four villages including Flower Hill, Lake Success, Plandome and recently, Plandome Manor. Each of these lawsuits are still pending further litigation.

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