Posted by: Patricia Salkin | March 30, 2021

Tenth Circuit Court of Appeals Holds Plaintiff Advanced Sufficient Allegations to Satisfy Standing Requirements in Telecommunications Act Case

This post was authored by Matthew Loescher, Esq.

Plaintiffs/Appellants Santa Fe Alliance for Public Health & Safety, Arthur Firstenberg, and Monika Steinhoff brought this case claiming that Section 704 of the Telecommunications Act of 1996 (“TCA”), New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), the Amendments to Chapter 27 of the Santa Fe City Code, and three proclamations by the Santa Fe mayor violated due process, the Takings Clause, and the First Amendment. The Alliance claimed the installation of telecommunications facilities, primarily cellular towers and antennas, on public rights-of-way exposed its members to dangerous levels of radiation. The district court concluded that while the Alliance pled sufficient facts to establish standing, the Alliance failed to allege facts stating any constitutional claim upon which relief could be granted. The district court dismissed the Alliance’s claims as against all defendants, including Hector A. Balderas, the New Mexico Attorney General.

On appeal, the Alliance contends the WCAIIA and the Amendments to Chapter 27, by facilitating the placement of telecommunications facilities on the public rights-of-way, constituted a taking of its members’ homes and businesses. Moreover, to the extent the Alliance sought redress for alleged future losses of homes and business, because the taking had not occurred at the time the Alliance filed its amended complaint any injury was speculative. Even if the placement of telecommunications facilities on public rights-of way constituted a taking of adjoining private property, no just compensation was due to any particular individual for a yet-to-occur taking.

Next, the Alliance alleged the WCAIIA and the Amendments to Chapter 27 violated procedural and substantive due process. The record reflected that the WCAIIA and the Amendments to Chapter 27 directly altered the process used by Santa Fe to approve new telecommunications facilities. Specifically, the WCAIIA limited the ability of localities to regulate “small wireless facilities” in the public rights-of-way. Therefore, the Alliance satisfied the standing requirements relative to its Count One claim that the WCAIIA and the Amendments to Chapter 27 deprived its members of notice and an opportunity to be heard.

The Alliance next claimed the TCA, by giving authority to the FCC to regulate radio-frequency emissions, preempted state and local regulation of those emissions, as well as the ability of state and local authorities to provide legal remedies for injuries attributable to radio-frequency, radiation emissions. The court held that the Alliance lacked standing to advance this claim, as it was contingent on New Mexico and/or Santa Fe, in the absence of the TCA, regulating radio-frequency emissions to a greater degree than the FCC does through 47 C.F.R. § 1.1310. No allegations in the amended complaint make such an inference plausible, however.

The Alliance lastly contended that the TCA, the WCAIIA, and the Amendments to Chapter 27 all infringed on its members’ First Amendment right to petition the government by foreclosing the ability of local officials to consider their arguments about the health effects of exposure to radio-frequency emissions. Count Nineteen alleged the TCA infringes the First Amendment free speech rights of Alliance members because local officials relied on the TCA to ignore and reject health-effect-related speech against new telecommunications facilities. In Count Twenty, the Alliance alleged the Amendments to Chapter 27 violate its members’ freedom of speech rights because the Amendments formally adopt the TCA’s delegation of regulation of radio-frequency emissions to the FCC. The court held that the Alliance’s allegations were sufficient to satisfy the standing requirements.

Santa Fe Alliance for Public Health and Safety v City of Santa Fe, NM, 2021 WL 1182285 (10th Cir. CA 3/30/2021)

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