Representing NextG Networks in a five-year-long litigation with the City of New York regarding its antiquated scheme for granting franchises to provide telecommunications service in the City. The City treats the franchising process as if it were a government procurement, allowing new entrants to apply only if and when the City issues a new Request for Proposals (RFP). NextG filed an action challenging the City's requirements as a barrier to entry in violation of Section 253 of the Communications Act after the City refused for two years to issue an RFP for a franchise to deploy wireless telecommunications facilities in the public right of way. NextG also sought damages for violation of its Section 253 rights under 42 U.S.C. 1983. After NextG filed its complaint, the City issued an RFP, but in it created a scheme in which it auctioned priority access to public rights-of-way based on providers willingness to pay the City higher annual rents.
The district court initially granted summary judgment to the City, holding among other things that the particular City Resolution and RFP that were in place when NextG filed suit had expired, thus mooting NextG's facial challenge. In addition, the district court held that NextG had an action under Section 1983 but failed to demonstrate 'actual harm' that would be required in a typical Section 1983 claim. NextG appealed to the 2nd Circuit. The 2nd Circuit reversed, rejecting the Court's conclusion that the facial challenge was moot. The 2nd Circuit rejected the district court's conclusion that NextG had a claim under Section 1983 (a decision consistent with several other circuit courts at that point), but in so doing, also rejected the district court's mistaken application of an 'actual harm' standard as applicable to a Section 253 challenge. The case is before the district court on remand. 513 F.3d 49 (2d Cir. 2008)