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:
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!
-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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