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ExteNet Systems Inc. v. Village of Pelham

Code Sections Not Incorporated Into Compact; Spectrum Act Not Enforcible via 42 USC §1983

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OPINION & ORDER Before the Court are the motion for summary judgment of Defendant Village of Pelham, (Doc. 19), and the cross-motion for summary judgment of Plaintiff ExteNet Systems, Inc., (Doc. 29). For the reasons set forth below, Defendant’s Motion is GRANTED IN PART and DENIED IN PART, and Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART.I. BACKGROUNDA. FactsThe following facts are taken from the parties’ Local Civil Rule 56.1 Statements and supporting materials and are undisputed unless otherwise noted.1. PartiesPlaintiff “designs, builds, owns, and maintains distributed networks for use by wireless carriers.” (Doc. 21 (“Pitcoff Decl.”) Ex. C (“2014 App.”) at 1.)¹ To serve its wireless-carrier customers, Plaintiff installs in “the public right of way” “small cells” or “distributed antenna systems” (“DAS”), which typically consist of a “node” comprising “an antenna and equipment cabinet (typically a few cubic feet in volume) mounted to a utility pole, traffic stanchion or street light.” (Doc. 30 (“Lambert Decl.”)

8-9.) Nodes can accommodate “one or more FCC-licensed carriers to provide network wireless services to a discrete area.” (Id. 10.) Several nodes together create a network, which can extend wireless coverage “where a traditional tower is not practical and/or cannot achieve targeted coverage.” (2014 App. at 2.) Plaintiff obtained a certificate of public convenience and necessity from the New York State Department of Public Service to “operate in New York State as a facilities-based provider and reseller of telephone service.” (Lambert Decl. Ex. 3 at 2.)²The Village of Pelham is a municipality in the State of New York. (Doc. 2 (“Compl.”) 17.) Plaintiff seeks to modify three of its existing DAS installations located on Village-owned rights of way. (Doc. 33 (“D’s 56.1 Resp.”)

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