Posted by: Patricia Salkin | April 29, 2016

Fed. Dist. Court in KY Reiterates that Health Claims Related to RF Emissions in Siting of Wireless Facilities are Preempted by the TCA

New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T) wanted to construct a 125-foot cellular antenna tower in Lexington, Kentucky. It applied for permission to do so with the Lexington-Fayette Urban County Government (“LFUCG”) Planning Commission and the Commission granted the application. The plaintiffs, Robbins and Lutz, who reside near the site of the proposed tower, appealed the commission’s decision which was dismissed because the plaintiffs failed to name the property owners as required by Kentucky state statute, KRS 100.347(4). While their appeal was pending, the plaintiffs filed a civil action asserting state-law tort claims of negligence, negligence per se, nuisance, and gross negligence.

The Federal District Court noted that the plaintiffs’ complaint was primarily based on the negative health effects that they alleged could result from exposure to a cell tower’s radio-frequency (RF) emissions, and that they sought to certify a class of individuals living within 500 meters of the proposed tower. The plaintiffs asserted that studies show “increased prevalence of adverse neurobehavioral symptoms or cancer in populations living at distances less than 500 meters from cell phone towers.” However, any claim based on alleged damages from the tower’s RF emissions was preempted and must be dismissed. The Court noted that the Telecommunications Act of 1996 (TCA) expressly prohibits state and local governments or any instrumentality thereof from regulating the “placement, construction, and modification of personal wireless services facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

The plaintiffs also asserted that the proposed tower would damage their health and wellbeing because of its noise, light, and aesthetic pollution. Further, the proposed tower would interfere with the use and enjoyment of Plaintiffs’ properties resulting in the diminution of the fair market value” of their properties. The court stated that the LFUCG planning commission specifically approved of the proposed location and design for the tower when it approved AT&T’s application. Article 25, the local zoning ordinance specifically regulates tower location and sets forth design standards. The ordinance makes clear that, in approving AT&T’s application, the LFUCG approved of the tower site and design. Because the tower had not yet been constructed, the plaintiffs had no claims based on any damages that the tower has actually caused. Instead, their complaint was with the commission’s approval. They asserted that the approval had already damaged their property values and that the proposed tower violated certain unnamed sections of the local zoning ordinance. 

As to the negligence claim, the plaintiffs stated that the defendants breached the duty of care “as a result of their negligent design and siting of the cell tower despite strong and vocal opposition by the surrounding residential property owners.” The court stated that these were conclusory allegations that cannot defeat a motion to dismiss.

Robbins v New Cingular Wireless PCS, LLC, 2016 WL 1089252 (EDKY 3/18/2016)

 


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