• On November 23, 2010, the US District Court for the Middle District of Pennsylvania denied a Pennsylvania township’s motion to dismiss a zoning-related suit brought by wireless tower developer Global Tower LLC under section 704 of the Telecommunications Act. The suit arises out of the zoning board’s denial of Global Tower’s 2009 application for a special-use permit to build and lease a cell tower in commercially zoned property. The zoning board, after twenty hearings on the matter, denied Global Tower’s application because, it found, the leased area was a new “lot” requiring “subdivision”. As the court explained, this led the zoning board to conclude that the “leased area should therefore be subject to requirements of the Zoning Ordinance only applicable to new and distinct lots.” The township argued that it should be dismissed from the suit because it was a distinct legal entity from the zoning board and has no authority to resolve a special-use application. The court disagreed, reasoning that “one of the Defendant Zoning Board’s central findings in denying Plaintiff’s ‘special use’ application was that the leased property on which Plaintiff wishes to build the radio tower is a ‘subdivision,’ a finding which alters the Plaintiff’s obligations under the Zoning Ordinance. All subdivision approval issues are within the exclusive jurisdiction of the Defendant Hamilton Township. If this Court was to dismiss the Defendant and then determine that the Zoning Board had erred and the leased property is not a ‘subdivision,’ the Defendant could then simply turn around and declare that it is.” Global Tower LLC v. Hamilton Township, et al., No. 3:10-cv-1705 (M.D. Pa.).
  • Also on November 23, 2010, the US District Court for the District of Kansas dismissed a request for declaratory judgment that a non-profit Kansas cable purchasing cooperative did not violate the Communications Act by denying the application for membership of Lafayette, Louisiana. The court dismissed the case on the ground that the FCC has exclusive jurisdiction to resolve the parties’ dispute. As the court found, “[b]ecause Congress designed Section 628 to bring FCC expertise to bear, and because the statutory scheme displays a ‘fairly discernable’ [sic] intent to limit jurisdiction, the FCC has exclusive original jurisdiction over plaintiff's claim.” The court also concluded that it did not have Article III jurisdiction to issue declaratory relief relating to federal or state unfair competition laws or claims of malicious prosecution. National Cable Television Co-op., Inc. v. Lafayette City-Parish Consol. Government of Lafayette, La., No. 10-2254 (D. Kan.).