Posted by: Patricia Salkin | April 8, 2009

Federal Telecommunications Act Preempts Local Wireless Ordinance That Is Based On Technological Preference

Judge William Young, sitting by designation in the Southern District of New York, held on March 26, 2009, that the Town of Clarkstown’s (“Town”) wireless communications zoning ordinance was unconstitutional.  In New York SMSA Limited Partnership d/b/a Verizon Wireless v. Town of Clarkstown,[1] the Court found that the Federal Telecommunications Act of 1996 (the “TCA”) effectively preempted the Town’s Wireless Communications Ordinance (“Town Ordinance”), such that the entire Town Ordinance was held to be unconstitutional.  The Court determined that the wireless carriers’ (the ”Carriers”) claims of federal preemption were valid with respect to the Town Ordinance where the Town Ordinance: (i) required Radio Frequency (“RF”) information for use in the Town’s zoning point scoring system, and (ii) favored “preferred alternative technologies.”[2]   The Court found that these aspects of the Town Ordinance impermissibly attempted to regulate in the area of communications technology, an area of significant federal presence.  This decision will likely have a significant impact on the application of wireless communications regulations in municipalities across New York State.


Factual Background

On July 26, 2007, the Town of Clarkstown, New York, enacted the Town Ordinance,[3] which amended Chapter 251 of its Town Code.  The Town Ordinance established a vigorous application and evaluation process for locating, renewing or modifying wireless communications facilities within the Town.  Among other things, the Town’s application process required wireless communications carriers to provide information about RF interference and emissions for potential wireless facilities.  Additionally, the Town established a pre-application point system which gave a 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 Claims

Verizon Wireless, Cingular Wireless, Sprint Spectrum and Omnipoint Communications jointly challenged the Town’s Ordinance, alleging that, under the Supremacy Clause of the United States Constitution, the Ordinance was expressly and impliedly preempted by the TCA.  The Carriers claimed that the RF information requirements, i.e., the Town’s preference for alternative technologies and the requirement to submit coverage maps showing minimum signal strength, were all impliedly preempted by the TCA.  In addition, the Carriers claimed that the Town Ordinance was facially unconstitutional because it was expressly preempted by the TCA, which 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. 


Implied Preemption

The Court found that two of the Carriers’ claims of implied preemption had merit.  First, the Court held that the Town Ordinance was impliedly preempted by the TCA because it attempted to regulate in an area of significant federal presence – communications technology.  Relying on precedent set in Freeman v. Burlington Broad., Inc.,[4] the Court determined that Congress gave exclusive jurisdiction to the Federal Communications Commission (the “FCC”) to regulate in the area of RF interference.  Specifically, the Court found that “Congress intended that the FCC enjoy exclusive jurisdiction to regulate RF interference phenomena,’ as a result of which ‘federal law has preempted the field of RF interference regulation.’”[5]  The Court held that the Town Ordinance, by requiring the Carriers to show that their equipment did not interfere with other signals, impermissibly regulated an area where Congress intended the FCC to have exclusive control.


Second, the Court determined that the Town Ordinance is impliedly preempted by federal law because the Town’s preference for alternative technologies impermissibly interferes with the comprehensive regulatory scheme of the TCA.  In order for an applicant to receive the Town’s preferred “A” status, the applicant was required to demonstrate that either it would use an alternative technology or its facilities would be located on an existing site.  The “A” status was most desirable because if obtained, the only step remaining in the application process was a Planning Department review on aesthetic grounds.  The other categories (“B” – “D”) required the applicant to endure a more rigorous process and obtain a special use permit following a public hearing.  The Carriers claimed that the Town’s grading system showed preference to alternative technologies over those accepted by the FCC and, thus, regulated in the technical and operational areas of wireless communications that were within the exclusive province of the FCC.  The Court agreed with the Carriers, stating “A town plainly may not impose separate, stricter certification requirements for wireless technology than those set forth by the FCC.  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.”[6]  Accordingly, the Court ruled that the parts of the Town Ordinance addressing alternative technologies were preempted by the FCC regulatory scheme.


Express Preemption Claims

The Court disagreed with the Carriers’ claims that the Town Ordinance was facially unconstitutional due to express preemption by the TCA.  The Carriers attempted to demonstrate that, contrary to FCC regulations prohibiting Town regulation of environmental effects, the Town prohibition against the placement of cellular towers near schools and day care centers was impermissibly related to RF emission concerns, rather than other factors, such as fall zone safety.  The Court found otherwise stating that the Town is entitled to a presumption against preemption and accepted the Town’s justification that the distance requirements for site locations were necessary for safety reasons – thereby falling within the Town’s traditional police powers in this regard.    


The carriers also claimed that, because there was an unduly burdensome application process, unlimited delays and the prohibition of new facilities in large parts of the Town, the Town Ordinance had the effect of making it impossible to provide communications services, contrary to the express requirements in the TCA.  The Court rejected these arguments and determined that there was no express preemption of the Town Ordinance in connection with these claims.


Severance Claim

The Court, having ruled that the Town Ordinance was federally preempted in several respects, next addressed whether the invalid portions of the Ordinance could be severed, such that the remainder of the Town Ordinance might be preserved.  The Court held that under New York law, “severance is inappropriate when the valid and invalid provisions are so intertwined that excision of the invalid provisions would leave a regulatory scheme that the legislature never intended.”[7]  The Court found that severing the unconstitutional portions of the Town Ordinance would cause the entire Ordinance to become unworkable because the point scoring and sorting scheme would be rendered meaningless and confusing by the severance of the scheme’s express and pervasive preference for alternative technologies.   Accordingly, the Court held the Town Ordinance unconstitutional and ordered the Town to redraft the entire wireless ordinance within six months from the date of the decision.  The Court further held that the Town’s failure to do so within the six-month period will “result in an impermissible total ban on the provision of personal wireless services.”[8] 



In light of the Court’s ruling in the Clarkstown case, a wireless ordinance that strays from traditional zoning authority, i.e., 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.  Municipalities should, therefore, review their wireless or proposed wireless ordinance and determine whether provisions thereof impermissibly tread on areas preemptively regulated by the FCC.



This posting was provided by Keith P. Brown, Esq. of Brown & Altman, LLP in Melville, NY.



[1] New York SMSA Ltd. P’ship v. Town of Clarkstown, No. 07 Civ. 7637 (S.D.N.Y. Mar. 26, 2009).

[2] Clarkstown Town Code Ch. 251(U)(5) “Proposed alternative technology includes the deployments of distributed  antenna systems (DAS) or microcells that are smaller in physical dimensions and that can be mounted on existing utility poles or other structures at relatively low elevations.”

[3] Local Law 14, enacted July 26, 2007.

[4] 204 F.3d 311 (2d Cir. 2000).

[5] Freeman, 204 F.3d at 321.

[6] New York SMSA Ltd. P’ship v. Town of Clarkstown, No. 07 Civ. 7637 (S.D.N.Y. Mar. 26, 2009).

[7] Id. at 40, citing National Advertising Co. v. Town of Niagara, 942 F.2d 145, 148 (2d Cir. 1991).

[8] Id. at 42.

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