On 9/1/2010 6:23 PM, Wilson wrote:
> FYI
>
> KD8DEG Tom
>
> ----- Original Message -----
> From: Fred Hopengarten
> To: Wilson
> Sent: Wednesday, September 01, 2010 3:36 PM
> Subject: [ham-law] Important Cellular Telephone Tower Decision
>
>
> Colleagues:
>
> The case described below, with URL, might be used, in the right ham radio
> case, to stand for several propositions:
Here in our township it's zoned either farming, residential, or
commercial. You can put up all the ham towers you want as they are now
excluded up to 100' and no permit is required or given. Above 100' they
only rules are it must be properly engineered and they are quite
lenient. It must also meet setback rules for safety. IOW it has to fall
on your own property.
Cell towers (any commercial towers except for farmers) are no longer
permitted as they are commercial and would require a rezoning of that
area, which if out in the farming country is quite possible.
> 1. The Town has no right to "prefer" another technology, such as remote
> siting.
>
> 2. The Town cannot force you to remedy RFI.
>
> I like cases where the court describes an ordinance as "crossing the line."
> Such cases give you a better idea of where the line is located!
There is a slight problem with this logic though. Each and every town
in the country could pass similar ordinances and they will stand until
challenged. If the town board/council is set in their ways it'll take
some with with a good grasp of the subject, law, AND DIPLOMACY to keep
it from going to court. This happens over and over with both the FAA
and FCC regs and has been supported in the courts a number of times.
Typically as in this example they failed when they got just a little too
specific.
73
Roger (K8RI)
> -Fred K1VR
>
> The United States Court of Appeals for the Second Circuit affirmed the
> district court's decision invalidating a local government's zoning
> ordinance which included a technological preference for DAS and microcell
> based systems. The case marks an important decision for the wireless
> industry which has long argued that municipalities have overreached by
> giving a "preference" to wireless carriers that use outdoor distributed
> antenna systems ("DAS") or "microcell" technology in residential areas,
> rather than "macrocell" technology. The Second Circuit Court of Appeals
> agreed with the wireless carriers, finding that a local zoning ordinance
> cannot dictate the type of antenna model and design that should be utilized
> or the technology deployed within its jurisdiction.
>
> In 2007, the Town of Clarkstown (the "Town"), located in Rockland County,
> New York, enacted Local Law No. 14 (the "Ordinance") to govern the
> installation of wireless telecommunications facilities. The law was
> intended, according to the Town, to give it the ability to control visual
> and aesthetic aspects of wireless telecommunication facilities development.
> Specifically, the Ordinance included a "preference" in residential areas for
> smaller less intrusive antennas and applicants for new wireless
> telecommunication permits were pre-screened based on several factors,
> including their use of "preferred alternate technology," such as microcell
> or DAS.
>
> The Ordinance was challenged by four of the nation's leading
> telecommunications service Carriers: Verizon Wireless, Cingular Wireless,
> Sprint and Omnipoint Communications (collectively, the "Carriers"), on the
> grounds that the Ordinance was preempted by federal law. The United States
> Court of Appeals affirmed the District Court's decision and held that the
> provisions of the Ordinance pertaining to: (1) radio frequency interference;
> and (2) giving a "preference" to "alternate technologies" were preempted
> under federal law under the theory of field preemption.
>
> Radio Frequency Interference
>
> With respect to the Town's attempt to regulate radio frequency interference,
> the Second Circuit reiterated its holding in the Freeman v. Burlington
> Broadcasters, that "Congress intended the FCC to possess exclusive authority
> over technical matters related to radio broadcasting" and that "Congress's
> grant of authority to the FCC was intended to be exclusive and to preempt
> local regulations."See, 204 F.3d 311. The Second Circuit found that the
> provisions of the Ordinance were indistinguishable from that in Freeman,
> where that Court invalidated a decision by a municipal zoning board that
> conditioned a permit to construct and use a new radio tower upon the
> applicant remedying any resulting radio frequency interference from the new
> communications facility.
>
> Outdoor DAS Preference
>
> In rejecting the provisions containing a material preference for
> "alternative technologies", the Second Circuit stated, "[these provisions]
> are also preempted because they interfere with the federal government's
> regulation of technical and operational aspects of wireless
> telecommunications technology, a field that is occupied by federal law."
> The Court stated that "the Ordinance clearly establishes a 'preference' for
> certain wireless technology - DAS and microcell systems" and that, by doing
> so, relegated other technology, such as macrocell, which otherwise meets the
> FCC standards, "to an inferior and decidedly disadvantaged status." The
> Court went on to add that the Ordinance interferes with Congress's goal of
> facilitating the spread of new technologies and the growth of wireless
> communications service.
>
> Moreover, the Second Circuit Court of Appeals rebuffed the Town's claim that
> it was simply regulating the aesthetic impacts of wireless communications
> facilities by establishing a preference for smaller, less visually
> obtrusive, wireless facilities. The Court stated that "[the Ordinance]
> crosses the line between zoning and land use regulation and the regulation
> of technical and operational standards. Even assuming that Chapter 251 is
> entitled to the presumption against preemption because zoning and land use
> are matters within a local government's traditional police powers, the
> presumption is overcome because Chapter 251 goes beyond those areas into the
> areas of technological and operational standards."
>
> Conclusion
>
> The Second Circuit Court of Appeals' decision in Clarkstown affirms and
> clarifies the limits and distinction between Federal regulation and local
> zoning authority. Congress has imbued the Federal Communications Commission
> with plenary authority over the technical aspects of the nation's wireless
> communications facilities development. While aesthetic impact of wireless
> communication facilities development remains within the police powers of
> local municipalities, such regulation cannot be achieved through means that
> effectively regulate wireless communications technology. A local zoning
> ordinance, such as the Clarkstown Ordinance, must yield to Federal
> regulation, particularly where that ordinance contains a provision(s) that
> attempts to regulate radio frequency interference and provides for an
> express preference for certain technology (i.e., DAS, microcell, etc.).
>
> New York SMSA Ltd. Partnership v. Town of Clarkstown, 2010 WL 2598310 (2nd
> Cir. 6/30/2010).
>
> http://go2.wordpress.com/?id=725X1342&site=lawoftheland.wordpress.com&url=ht
> tp%3A%2F%2Fwww.ca2.uscourts.gov%2Fdecisions%2Fisysquery%2F39d25656-fe9d-4584
> -a9d1-2ca25ea0d61a%2F7%2Fdoc%2F09-1546-cv_opn.pdf%23xml%3Dhttp%3A%2F%2Fwww.c
> a2.uscourts.gov%2Fdecisions%2Fisysquery%2F39d25656-fe9d-4584-a9d1-2ca25ea0d6
> 1a%2F7%2Fhilite%2F&sref=http%3A%2F%2Flawoftheland.wordpress.com%2F2010%2F07%
> 2F06%2Fsecond-circuit-finds-federal-telecommunications-act-law-preempts-loca
> l-wireless-ordinance-that-is-based-on-das-preference%2F%3Futm_source%3Dfeedb
> urner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BLawOfTheLand%2B%2528
> LAW%2BOF%2BTHE%2BLAND%2529
>
>
> Fred Hopengarten, Esq. hopengarten@post.harvard.edu
> Six Willarch Road * Lincoln, MA 01773
> 781.259.0088 FAX 419.858.2421
> www.antennazoning.com
>
>
>
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