24 Jan BROWN & ALTMAN ATTORNEY SAYS TOWNS AND VILLAGES SHOULD REVIEW WIRELESS PROVISIONS AFTER U.S. JUDGE VOIDS PARTS OF A ZONING CODE
MELVILLE, N.Y. (April 24, 2009) — Municipalities will have to review their wireless ordinances or proposed wireless code provisions to ensure they are not preempted by the FCC as the result of a recent federal court decision, Keith P. Brown, a telecommunications zoning law specialist said.
In March, a New York federal court judge ruled that a local zoning law that preempted federal regulations was unconstitutional.
Brown, a partner in the Melville, N.Y-based law firm, Brown & Altman LLP, said a March 26 ruling by Judge William Young of the Southern District of New York in a case involving the Town of Clarkstown, in Rockland County, necessitates the reviews. Young ruled that federal law preempted a 2007 local ordinance that legislated a preference for alternate technologies. New York SMSA LP, New Cingular Wireless PCS, LLC, Sprint Spectrum LP and Omnipoint Communications Inc. jointly challenged Clarkstown’s ordinance. The judge ordered Clarkstown to revise its code within six months to avoid “an impermissible total ban” on wireless service.
“In light of the court’s ruling in this case, a wireless ordinance that strays from traditional zoning authority, that is, aesthetics, height, setback and distance, and attempts to regulate in an area of significant federal presence – communications technology – will likely be subject to a preemption challenge,” Brown said.
In his ruling, Young cited a statement by the Ninth U.S. Circuit Court of Appeals that the Telecommunications Act “represents a congressional judgment that local zoning decisions harmless to the FCC’s greater regulatory scheme—and only those proven to be harmless—should be allowed to stand.”
Clarkstown’s application process, among other things required wireless communications carriers to provide information about RF interference and emissions for potential wireless facilities, according to Brown. Additionally, the town established a preapplication point system that gave preferred status to applications demonstrating that a “preferred alternate technology” would be used. The pre-application point system applied an “A” to “D” ranking of applications, which was used to guide the remainder of the application process, with “A” being the most desired and least burdensome score. The carriers claimed that the RF information requirements – the town’s preference for alternative technologies, such as the use of smaller antennas mounted on utility poles, and the requirement to submit coverage maps showing minimum signal strength – were all impliedly preempted by the federal telecommunications law. In addition, the carriers claimed that the town ordinance was facially unconstitutional because federal law expressly prohibited local laws from regulating the environmental effects of wireless facilities and barred local acts that effectively interfered with a carrier’s ability to provide personal wireless communications services.
“A town plainly may not impose separate, stricter certification requirements for wireless technology than those set forth by the FCC,” Young stated in his ruling. “Federal law has preempted the field of technology authorization and station licensing and there is no room for state and local authorities to regulate in this area.”
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