Crown Castle NG E. LLC v. Town of Hempstead

CROWN CASTLE NG EAST LLC, Plaintiff, v. THE TOWN OF HEMPSTEAD, THE TOWN OF HEMPSTEAD TOWN BOARD,JOHN ROTTKAMP AS THE TOWN OF HEMPSTEAD BUILDING DEPARTMENT COMMISSIONER(in his official capacity), AND THE TOWN OF HEMPSTEAD BOARD OF ZONING APPEALS, Defendants.

CV 17-3148 (GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 15, 2019

MEMORANDUM & ORDER

GARY R. BROWN, United States Magistrate Judge:

Following this Court's decision denying cross-motions for summary judgment, Docket Entry ("DE") 29, both parties seek certification of questions for interlocutory appeal to the United States Court of Appeals for the Second Circuit. Because the parties have not satisfied the elements required for such certification, the motion is DENIED.

BACKGROUND

Plaintiff Crown Castle NG East LLC ("plaintiff" or "Crown Castle") is a provider of wireless electronic services. Crown Castle seeks various forms of relief arising from its attempts to construct and install 4G LTE towers in areas designated as rights of way owned by the defendant Town of Hempstead. Plaintiff's claims are based upon defendant's alleged failure to timely resolve plaintiff's applications for permission to construct these facilities, purported administrative roadblocks in connection with these installations and ostensibly discriminatory fees connected with such applications. In a Memorandum and Order (the "Order"), which is incorporated by reference herein and familiarity with which is assumed, this Court denied cross-motions for summary judgment and resolved several other motions. Crown Castle NG E. LLC v. Town of Hempstead, No. CV 17-3148 (GRB), 2018 WL 6605857, at *3 (E.D.N.Y. Dec. 17, 2018). Specifically, the Court directed the parties "to meet and confer to determine if discovery, hearing and/or remand is required on the remaining claims, and if so, the scope and timing of said discovery as well as the remaining matters to be litigated." Id. at *11. Notwithstanding this Court's expressed preference for a joint status report, the parties filed separate reports. DE 30, 31. Crown Castle set forth a proposed discovery schedule, seeking to resolve, among other things, the question of available 3G service in the affected areas, and a possible hearing regarding alleged 47 U.S.C. § 332 violations. DE 30. Defendants ("defendants" or "The Town") requested a conference be held to determine whether discovery should await re-argument of the Order, and asserted that no discovery is required as the case should be based solely upon the administrative record. DE 31.

After several extensions of time were granted on the consent of the parties, plaintiff filed the instant motion for leave to appeal, which the Town joined. DE 38, 39. In its filing, the plaintiff identified two purportedly controlling issues of law for potential certification:

(1) whether the denial of an application to deploy wireless facilities has "the effect of prohibiting the provision of personal wireless services" within the meaning of 47 U.S.C. § 332(c)(7)(B)(i)(II) where, as here, the undisputed facts show that the subject facilities would remedy a gap in 4G LTE coverage; and

(2) whether the Hobbs Act, 28 U.S.C. § 2342, required the Court to accept as binding the Federal Communications Commission's ("FCC" or "Commission") legal interpretations of 47 U.S.C. § 332(c)(7)(B)(i)(II).

DE 38-1 at 6. The Town agreed that these questions should be certified and proposed a third question for certification:

whether the 4G LTE service to be provided by Verizon from Crown Castle's DAS installations is a broadband internet service, which is an information service --rather than an telecommunications service -- and thus not subject to the strictures of 47 U.S.C. § 332, which formed the basis for Crown Castle's causes of action.

DE 39 at 3 (citing Order at 4-13). Plaintiff does not believe this question is subject to certification. DE 40 at 2.

Both parties took the position that the Supreme Court's determination in the then-pending review of Harris Chiropractic, Inc, v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018) might have had an effect on one or more of the pending issues for certification. After the Supreme Court issued its determination in June 2019, the Court directed the parties to brief its potential effect on the instant motion. Electronic Order dated June 25, 2019 (citing PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019) [hereinafter "PDR"]). The Town argued that "the majority opinion of the Supreme Court provided absolutely no insight, analysis, or determination as to resolving the tensions between Hobbs Act and Chevron as to the ability of a district court to interpret the provisions of the [Telecommunications Act of 1996 ("TCA")] or disregard the prior (conflicting or non-conflicting) interpretations of the FCC." DE 41 at 2. Plaintiff argued that PDR read only on the Hobbs Act issue raised, noting that the majority opinion "does not resolve the issue." DE 42 at 2. Plaintiff's counsel did make certain observations about the concurring opinions in PDR, which the Court will address below. Id. at 2-3.

LEGAL STANDARD

Authority of a Magistrate Judge to Certify a Question for Appeal

A threshold question not addressed by the parties is whether the undersigned, who has assumed jurisdiction of this matter upon the consent of the parties under 28 U.S.C. § 636(c)(1), has the authority to certify a question for appeal under 28 U.S.C. §1292(b). That section provides, in relevant part, as follows:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order . . .

28 U.S.C. §1292(b) (emphasis added). While the Second Circuit has not expressly held that a magistrate judge has authority to certify a question for appeal, several courts that have considered this question have so determined. See Verizon New York Inc. v. Vill. of Westhampton Beach, No. CV 11-252 (AKT), 2014 WL 12843520, at *6, n.6 (E.D.N.Y. Dec. 22, 2014) [hereinafter Verizon] (collecting cases). As such, the Court will assume for the purposes of this decision that the undersigned does have the authority to certify questions under §1292(b).

Standard for Certification of Appeal

As Magistrate Judge Tomlinson has observed:

Section 1292(b) permits a party to appeal "an order not otherwise appealable" as of right upon certification by the district court and permission of the court of appeals. 28 U.S.C. § 1292(b); see Nat'l Asbestos Workers Med. Fund v. Philip Morris, 71 F. Supp. 2d 139, 145 (S.D.N.Y. 1999). A court may certify an order for interlocutory appeal under section 1292(b) only if it finds that three conditions have been met: first, that ruling on which the appeal is sought involves a controlling question of law; second, that there is substantial ground for a difference of opinion as to that controlling question of law; and, third, that an immediate appeal will materially advance the litigation. Tyco Intern., Ltd. v. Kozkowski, 02-CV-7317, 2011 WL 2038763, at *4 (S.D.N.Y. May 24, 2011) (citing 28 U.S.C. § 1292(b)); see City of New York v. Milhelm Attea & Bros., Inc., No. 06-CV-03620, 2012 WL 4959502, at *3 (E.D.N.Y. Oct. 17, 2012).

"As with the entry of partial judgments under Rule 54(b), the Second Circuit has held repeatedly that 'use of this § 1292(b) certification procedure should be strictly limited because only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Milhelm, 2012 WL 4959502, at *3 (quoting In re Flor, 79 F.3d 281, 284 (2d Cir. 1996) ) (alteration omitted). To that end, certification under 1292(b) must be "reserved for those cases where an intermediate appeal may avoid protracted litigation." Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-866 (2dCir. 1996); see e.g. Tyco, 2011 WL 2038763, at *4. Even where the moving party demonstrates that the statute's three conditions have been met, the district court retains "unfettered discretion" to deny this extraordinary relief. In re Vitamin C Antitrust Litig., No. 06-MD-1738, 2012 WL 425234, at *1 (E.D.N.Y. Feb. 9, 2012) (internal quotation marks omitted); see Milhelm, 2012 WL 4959502, at *3 (quoting Nat'l Asbestos, 71 F.Supp.2d at 162).

Verizon, 2014 WL 12843520, at *5-6. With this standard firmly in mind, the Court turns to the application at bar.

DISCUSSION

Proposed Question 1: Personal Wireless Services/Gap in 4G LTE Coverage

The first question is whether the actions by the Town in this case have "the effect of prohibiting the provision of personal wireless services" under 47 U.S.C. § 332(c)(7)(B)(i)(II), where the proposed facilities would remedy an undisputed gap in 4G LTE coverage. In the Order, this Court explored this issue in detail, examining binding appellate case law holding that "the plain focus of the statute is on whether it is possible for a user in a given remote location to reach a facility that can establish connections to the national telephone network," and holding that:

A local government may also reject an application that seeks permission to construct more towers than the minimum required to provide wireless telephone services in a given area. A denial of such a request is not a prohibition of personal wireless services as long as fewer towers would provide users in the given area with some ability to reach a cell site.

Crown Castle NG E. LLC, 2018 WL 6605857, at *7 (quoting Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 641-3 (2d Cir. 1999))....