07-1767-cv
The New Phone Co., Inc. v. The City of New York


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
ORDER W AS ENTERED.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 7th day of December, two thousand and nine.


Present:       WILFRED FEINBERG,
               RALPH K. WINTER,
               ROSEMARY S. POOLER,

                              Circuit Judges.

___________________________________________________

  THE NEW PHONE CO., INC.,
                                     Plaintiff-Appellant,

                        -v-                                                07-1767-cv

  THE CITY OF NEW YORK,
                                     Defendant-Appellee.
Appearing for Plaintiff-Appellant:        Mayne Miller, New York, NY.


Appearing for Defendant-Appellee:         Francis F. Caputo, Assistant Corporation Counsel
                                          (Bruce Regal, Michael S. Adler, Jerald Horowitz, and
                                          Karen M. Griffin, Assistant Corporation Counsels, of
                                          counsel), for Michael A. Cardozo, Corporation
                                          Counsel of the City of New York, New York, NY.

Appeal from the United States District Court for the Eastern District of New York (Gleeson, J.).


     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

       This is an appeal from a judgment, filed April 10, 2007, of the United States District
Court for the Eastern District of New York (Gleeson, J.), granting the defendant’s motion to
dismiss the complaint. The judgment memorializes the district court’s order, filed April 6, 2007,
adopting in its entirety the Report and Recommendation of Magistrate Judge Kiyo Matsumoto,
filed November 30, 2006, and rejecting NPC’s objections thereto

        We assume the parties’ familiarity with the facts and procedural history of the case. In an
order, filed December 16, 2007, this Court granted the motion of plaintiff-appellant The New
Phone Co., Inc. (“NPC”) to have the instant appeal heard in tandem with the appeal in The New
Phone, Co., Inc. v. New York City Dept. Of Information Technology and Telecommunications,
06-5276. In its declaration in support of the motion, NPC stated that “[t]he basic complaints in
both cases are the same – the oppressive regulatory scheme for public pay telephones . . .
inaugurated by the City [of New York] and administered with ever more oppression and
favoritism . . . .” That is, in both cases, NPC challenges Local Law 68, passed by New York City
(“the City”) in 1995, which enacted a regulatory scheme for the placement of pay telephones on
public property.

       NPC asserts claims under: (1) the Federal Telecommunications Act of 1996 (“the TCA”),
47 U.S.C. Section 253; (2) Section 90 of the New York State Public Service Law, Pub. Serv. L.
Section 90; and (3) numerous provisions of the Federal Constitution. Also in its declaration in
support of the motion to have the instant appeal heard in tandem with the appeal in 06-5276,
NPC avers that “[m]ost of the alleged grounds for dismissal of the two actions . . . are identical . .
. .” Our review of the district court’s grant of dismissal is de novo. See Staehr v. Hartford Fin.
Serv. Group, Inc., 547 F.3d 406, 424 (2d Cir. 2008).

        Relying upon our recent decision in Global Network Communications, Inc. v. City of
New York, 562 F.3d 145 (2d Cir. 2009), a case also involving a challenge to Local Law 68, we
held in 06-5276 that NPC’s claims under the TCA fail because, pursuant to the statute’s “safe-
harbor” provision, 47 U.S.C. Section 253(c), the regulatory scheme set forth in Local Law 68
was exempt from the terms of the TCA. See The New Phone, Co., Inc. v. New York City Dept.
Of Information Technology and Telecommunications, No. 06-5276 (2d Cir. 2009). We believe

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that this holding is equally applicable to NPC’s claims under the TCA here, and we accordingly
affirm the dismissal of those claims.

        We have reviewed NPC’s arguments urging us to reverse the district court’s dismissal of
its remaining claims, and we believe they are without merit. Accordingly, we affirm the
dismissal of those claims.

       For the reasons stated above, the judgment of the district court is hereby AFFIRMED.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk

                                                   By:

                                                   _______________________________




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