09-1546-cv
N.Y. SMSA Ltd. P'ship v. Town of Clarkstown
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2009
5
6 Argued: March 8, 2010 Decided: June 30, 2010
7 Docket No. 09-1546-cv, 09-1860-cv
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9 NEW YORK SMSA LIMITED PARTNERSHIP, doing business as Verizon
10 Wireless, NEW CINGULAR WIRELESS PCS, LLC, SPRINT SPECTRUM L.P.,
11 and OMNIPOINT COMMUNICATIONS, INC., a wholly owned subsidiary of
12 T-Mobile USA, Inc.,
13 Plaintiffs-Appellees-Cross-Appellants,
14 v.
15
16 TOWN OF CLARKSTOWN and TOWN BOARD OF THE TOWN OF CLARKSTOWN,
17 Defendants-Appellants-Cross-Appellees.
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19 Before: McLAUGHLIN and CHIN, Circuit Judges.*
20 Cross-appeals from an order of the United States
21 District Court for the Southern District of New York (Young,
22 District Judge**) granting plaintiffs-appellees' motion for
23 summary judgment and denying defendants-appellants' cross-motion
*
At the time of oral argument, Judge Chin was a United
States District Judge for the Southern District of New York,
sitting by designation. Judge Rosemary S. Pooler was originally
a member of the panel, but did not participate in the
consideration of this appeal. The two remaining members of the
panel are in agreement and have determined the matter. See 28
U.S.C. § 46(d); 2d Cir. Internal Operating Procedure E; United
States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
**
Hon. William G. Young, of the United States District
Court for the District of Massachusetts, sitting by designation.
1 for summary judgment. The district court held that a local law
2 purporting to regulate the construction of wireless
3 telecommunications facilities was preempted by federal
4 communications law.
5 AFFIRMED.
6 ANDREW G. McBRIDE (Joshua S. Turner,
7 Jamie A. Aycock, Wiley Rein LLP,
8 Washington, D.C., Christopher B.
9 Fisher, Cuddy & Feder LLP, White
10 Plains, New York, John F. Stoviak,
11 Charles Michael Rowan, Jr., Saul
12 Ewing, LLP, Princeton, New Jersey,
13 Richard M. Fricke, Price, Meese,
14 Shulman & D'Arminio, P.C.,
15 Woodcliff Lake, New Jersey, on the
16 brief), for Plaintiffs-Appellees-
17 Cross-Appellants.
18 EDWARD M. ROSS (Judah Serfaty, Rosenberg
19 Calica & Birney LLP, Garden City,
20 New York, on the brief), for
21 Defendants-Appellants-Cross-
22 Appellees.
23 PER CURIAM:
24 In 2007, the Town of Clarkstown in Rockland County, New
25 York (the "Town"), passed a local law governing the installation
26 of wireless telecommunications facilities. The law was intended
27 to give the Town the ability to control visual and aesthetic
28 aspects of wireless telecommunications facilities within the
29 Town, and, in particular, it sought to implement a "preference"
30 in residential areas for smaller and less intrusive antennas.
31 Four national telecommunications service providers brought this
32 action below to challenge the law on the grounds that it was
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1 preempted by federal communications law. The district court
2 agreed, and held that the law was preempted. We affirm.
3 BACKGROUND
4 A. Federal Regulation of Telecommunications
5 The field of telecommunications -- the electronic
6 transmission of sounds, words, and images, usually over a great
7 distance -- has long been the subject of federal regulation. In
8 1910, Congress passed the Wireless Ship Act of June 24, 1910, 36
9 Stat. 629, and the Radio Acts of 1912 and 1927 followed, 37 Stat.
10 302; 44 Stat. 1162. See Nat'l Broad. Co. v. United States, 319
11 U.S. 190, 210-13 (1943) (reviewing history of radio acts). In
12 1934, Congress passed the Communications Act of 1934, 48 Stat.
13 1064, and thereby created the Federal Communications Commission
14 (the "FCC"). In doing so, Congress sought to create "a unified
15 and comprehensive regulatory system for the industry," "to
16 protect the national interest involved in the new and far-
17 reaching science of broadcasting." Nat'l Broad. Co., 319 U.S. at
18 213-14 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 137
19 (1940)). Congress gave the FCC the exclusive authority to grant
20 licenses to telecommunications providers, see 47 U.S.C. § 151,
21 and it "intended the FCC to possess exclusive authority over
22 technical matters related to radio broadcasting," Freeman v.
23 Burlington Broadcasters, Inc., 204 F.3d 311, 320 (2d Cir. 2000).
24 Most relevant to this case, in 1996, Congress enacted
25 the Telecommunications Act of 1996 (the "Telecommunications
26 Act"), Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §
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1 151 et seq., as amended). The Telecommunications Act made
2 substantial changes to the federal regulation of
3 telecommunications as Congress sought "to accelerate rapidly
4 private sector deployment of advanced telecommunications and
5 information technologies and services to all Americans by opening
6 all telecommunications markets to competition." See H.R. Rep.
7 No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 10,
8 124. The Telecommunications Act included "new provisions
9 applicable only to wireless telecommunications service
10 providers." Sprint Telephony PCS, LP v. County of San Diego, 543
11 F.3d 571, 576 (9th Cir. 2008) (emphasis omitted).
12 In section 332(c)(7) of the Telecommunications Act,
13 Congress preserved the authority of state and local governments
14 over zoning and land use issues, but imposed limitations on that
15 authority. See 47 U.S.C. § 332(c)(7). Section 332(c)(7),
16 entitled "Preservation of local zoning authority," provides:
17 Except as provided in this paragraph, nothing
18 in this chapter shall limit or affect the
19 authority of a State or local government or
20 instrumentality thereof over decisions
21 regarding the placement, construction, and
22 modification of personal wireless service
23 facilities.
24 47 U.S.C. § 332(c)(7)(A); see H.R. Rep. No. 104-458, at 207-08
25 (section 332(c)(7) "preserves the authority of State and local
26 governments over zoning and land use matters"). At the same
27 time, however, section 332(c)(7)(B) provides that "[t]he
28 regulation of the placement, construction, and modification of
29 personal wireless service facilities by any State or local
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1 government or instrumentality thereof (I) shall not unreasonably
2 discriminate among providers of functionally equivalent services;
3 and (II) shall not prohibit or have the effect of prohibiting the
4 provision of personal wireless services." 47 U.S.C. §
5 332(c)(7)(B)(i).
6 The FCC has promulgated regulations setting forth
7 "technical requirements for use of the spectrum and equipment in
8 the personal communications services." 47 C.F.R. § 24.50. Its
9 regulations cover matters such as, for example, transmitter type,
10 id. § 24.51, radio frequency radiation exposure, id. § 24.51-52,
11 the height of an antenna above average terrain, id. § 24.53, and
12 the marking and lighting of antenna structures, id. § 24.55.
13 B. The Clarkstown Wireless Law
14 In July 2007, the Town enacted Local Law No. 14 to
15 amend Chapter 251 of the Clarkstown Town Code. See Chapter 251
16 of the Clarkstown Town Code, as amended by Local Law No. 14,
17 enacted Jul. 24, 2007. Chapter 251's stated purpose is to
18 provide the Town with:
19 the authority to accommodate and regulate
20 necessary utility infrastructure for the
21 provision of wireless telecommunications
22 facilities within the Town . . . , to
23 encourage the siting of wireless
24 telecommunications facilities in
25 nonresidential areas on existing structures,
26 to address the safety, visual and aesthetic
27 aspects of . . . facilities and to provide
28 for public input in the process of siting
29 . . . towers.
30 Chapter 251 § 251-10(B). Chapter 251 also seeks to "establish
31 clear standards for the review and siting" of wireless
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1 telecommunication facilities, and to protect the residential
2 areas of the Town from "unsightly" and "intrusive" facilities.
3 Id. § 251-10(B), (D).
4 Chapter 251 establishes a multi-stage application
5 process for requests to install, modify, or renew permits for
6 wireless telecommunications facilities within the Town.
7 Applicants for wireless telecommunications permits are pre-
8 screened based on several factors, including their use of
9 "preferred alternate technology," such as a "microcell" or
10 "distributed antenna system" ("DAS"). Id. § 251-15. A DAS
11 consists of a "continuous grid of low-level antennas," NextG
12 Networks of N.Y., Inc. v. City of New York, 513 F.3d 49, 50 (2d
13 Cir. 2008), and because these antennas are lower in height and
14 operate with lower power, multiple antennas are required to cover
15 the same geographic area that could be served by just one of the
16 "macrocell" towers preferred by the service providers. Moreover,
17 a DAS would require more than simply substituting smaller
18 antennas for a larger one, as the construction of an integrated
19 system of transmitters, cables, routing devices, and specific DAS
20 equipment would be required.
21 Under Chapter 251, applicants are placed into four
22 categories based on their score in the pre-application
23 assessment. Category A applications receive the least scrutiny
24 and are subjected to a less rigorous application process, see
25 Chapter 251 §§ 251-15(C), 251-16 to 251-19, and applications
26 using preferred alternative technologies are accorded Category A
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1 status with a screening value of only 60 points, id. § 251-15(A).
2 In contrast, for applications proposing a location on an existing
3 tower or water tower to achieve Category A status, a screening
4 value above 90 points is required and for applications proposing
5 a "co-location" at an existing wireless telecommunication
6 facility or rooftop site require a screening value above 105
7 points is required. Id. Moreover, proposals using the preferred
8 DAS or microcells technology are given 30 points toward the
9 required screening value at the start, whereas proposals using a
10 new tower or pole are given only 5 points and proposals using a
11 roof top or other existing structure are given only 10 points.
12 Chapter 251, Table 1. Proposals using alternate technology are
13 also automatically given 10 points as a "stealthing proposal."
14 Id. The Category A designation entitles applicants to a faster
15 and less rigorous evaluation by the Planning Board. See id. §§
16 251-16 to 251-19. In contrast, Category D applicants are
17 required to "demonstrat[e] in detail the technological reason to
18 justify why alternate technologies cannot be utilized. . . . The
19 [applicant] seeking . . . an exception [to the use of preferred
20 technology is required to] satisfactorily demonstrate the reason
21 or reasons why such a permit should be granted for the proposed
22 technology." Id. § 251-19(G)(9). Applicants that do not meet
23 these requirements risk rejection by the Planning Board. See id.
24 § 251-19(C).
25 Certain provisions of Chapter 251 relate to
26 interference with radio frequency. For example, applicants in
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1 Categories B, C, and D are required to submit information
2 regarding radio frequencies and to certify that the proposed
3 antennas will not interfere with existing telecommunications
4 devices. See id. § 251-19(F)(19) & (24). Applicants seeking to
5 build new towers must demonstrate that "radio, television,
6 telephone or reception of similar signals for nearby properties
7 will not be disturbed or diminished." See id. § 251-22(A)(3).
8 C. Procedural History
9 On August 28, 2007, plaintiffs-appellants New York SMSA
10 Limited Partnership d/b/a/ Verizon Wireless, New Cingular
11 Wireless PCS, LLC, Sprint Spectrum L.P., and Omnipoint
12 Communications, Inc., a wholly owned subsidiary of T-Mobile USA,
13 Inc. (collectively, "the Carriers") sued the Town (and the Town
14 Board) for a declaration that Chapter 251 was preempted by
15 federal communications law. Subject matter jurisdiction was
16 based, inter alia, on federal question jurisdiction because the
17 Carriers' challenge to Chapter 251 invoked the Supremacy Clause
18 of the United States Constitution, U.S. Const. art. VI, cl. 2,
19 and the Communications Act of 1934, as amended, 47 U.S.C. §§ 253,
20 332. See 28 U.S.C. § 1331. Both sides moved for summary
21 judgment, eventually stipulating that the district court could
22 decide the case and rule on any issues of fact based on the
23 submitted record.
24 On March 29, 2009, in a thorough and carefully
25 considered decision, the district court (Young, District Judge)
26 granted the Carriers' motion and denied the Town's motion,
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1 holding that Chapter 251 was preempted by the Telecommunications
2 Act in two respects. See N.Y. SMSA Ltd. P'ship v. Town of
3 Clarkstown, 603 F. Supp. 2d 715, 722-28 (S.D.N.Y. 2009). First,
4 the district court held that provisions of Chapter 251 requiring
5 certain classes of applicants to certify that their proposed
6 facilities would not cause radio frequency interference were
7 impliedly preempted. Id. at 722-23 (citing Freeman v. Burlington
8 Broadcasters, Inc., 204 F.3d 311 (2d Cir. 2000)). Second, the
9 district court held that the provisions of Chapter 251 granting a
10 preference for certain "alternate technologies" were preempted
11 because they interfered with the federal regulatory scheme for
12 wireless technology. Id. at 724-28. The district court did not
13 reach certain issues and rejected certain of the Carriers'
14 claims, but held in the end that severance of the preempted
15 provisions was not appropriate. Id. at 734-35. The court gave
16 the Town six months to re-draft Chapter 251. Id. at 735.
17 On April 9, 2009, the Town filed a notice of appeal
18 from the district court's memorandum and order of March 26, 2009.
19 The Carriers filed a protective, conditional cross-appeal on
20 April 30, 2009, to preserve their right to appeal from issues
21 that the district court had decided against them in the event
22 this Court ruled in favor of the Town with respect to the Town's
23 appeal.
24 On April 30, 2009, the district court (Seibel, District
25 Judge) denied the Town's motion for a stay pending appeal and
26 also certified the case for an immediate appeal, pursuant to 28
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1 U.S.C. § 1292(b), to the extent Judge Young's decision was not
2 immediately appealable.
3 On May 7, 2009, the Town filed a motion in this Court
4 for a stay pending appeal and for permission to appeal pursuant
5 to § 1292(b) and Federal Rule of Appellate Procedure 5. By order
6 dated September 2, 2009, this Court denied the motion for a stay;
7 it did not rule on the motion for acceptance of the district
8 court's § 1292(b) certification.
9 After the Town's motions for a stay pending appeal were
10 denied, it amended Chapter 251 to remove the preference for
11 alternative technologies, subject to the outcome of this appeal.
12 At the same time, the Town "voluntarily" amended Chapter 251 to
13 eliminate any effort to regulate radio frequency interference.
14 DISCUSSION
15 A. Standard of Review and Appellate Jurisdiction
16 We have jurisdiction over this interlocutory appeal
17 pursuant to 28 U.S.C. § 1292(a) because the district court's
18 March 26, 2009, order effectively granted the Carriers a
19 preliminary and permanent injunction against enforcement of
20 Chapter 251, as it was then drafted.
21 We review de novo a district court's application of
22 preemption principles. See Premium Mortg. Corp. v. Equifax,
23 Inc., 583 F.3d 103, 106 (2d Cir. 2009); Drake v. Lab. Corp. of
24 Am. Holdings, 458 F.3d 48, 56 (2d Cir. 2006). We note that the
25 parties agree that this appeal raises only legal issues and that
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1 they agreed in the district court that the case could be decided
2 on a stipulated record.
3 B. The Merits
4 1. Applicable Law
5 Under the Supremacy Clause of the Constitution, state
6 and local laws that conflict with federal law are "without
7 effect." Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008)
8 (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)); see
9 U.S. Const. art. VI, cl. 2. In general, three types of
10 preemption exist: (1) express preemption, where Congress has
11 expressly preempted local law; (2) field preemption, "where
12 Congress has legislated so comprehensively that federal law
13 occupies an entire field of regulation and leaves no room for
14 state law"; and (3) conflict preemption, where local law
15 conflicts with federal law such that it is impossible for a party
16 to comply with both or the local law is an obstacle to the
17 achievement of federal objectives. Wachovia Bank, N.A. v. Burke,
18 414 F.3d 305, 313 (2d Cir. 2005); see English v. Gen. Elec. Co.,
19 496 U.S. 72, 78-79 (1990).
20 The key to the preemption inquiry is the intent of
21 Congress. Altria Group, 129 S. Ct. at 543; Medtronic, Inc. v.
22 Lohr, 518 U.S. 470, 485 (1996) ("'[t]he purpose of Congress is
23 the ultimate touchstone' in every pre-emption case") (quoting
24 Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).
25 Congress may manifest its intent to preempt state or local law
26 explicitly, through the express language of a federal statute, or
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1 implicitly, through the scope, structure, and purpose of the
2 federal law. Altria Group, 129 S. Ct. at 543. By their nature,
3 field preemption and conflict preemption are usually found based
4 on implied manifestations of congressional intent. Id. (citing
5 Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). Even
6 where a federal law contains an express preemption clause, the
7 court still may be required to consider implied preemption as it
8 considers "the question of the substance and scope of Congress'
9 displacement of state law." Altria Group, 129 S. Ct. at 543.
10 Traditionally, there has been a presumption against
11 preemption with respect to areas where states have historically
12 exercised their police powers. Id.; Wachovia Bank, 414 F.3d at
13 314 ("There is typically a presumption against preemption in
14 areas of regulation that are traditionally allocated to states
15 and are of particular local concern."). A local government's
16 legislative exercise of "historic police powers of the State[]"
17 is not to be superseded by a federal statute unless it was "the
18 clear and manifest purpose of Congress" to do so. Wyeth v.
19 Levine, 129 S. Ct. 1187, 1194-95 (2009) (quoting Medtronic, Inc.
20 v. Lohr, 518 U.S. 470, 485 (1996)) (internal quotation marks
21 omitted). The presumption has not generally been applied when a
22 local government regulates in an area "where there has been a
23 history of significant federal presence." United States v.
24 Locke, 529 U.S. 89, 108 (2000); see Ting v. AT&T, 319 F.3d 1126,
25 1136 (9th Cir. 2003) (refusing to apply presumption in favor of
26 state contract and consumer protection laws in telecommunications
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1 case "because of the long history of federal presence in
2 regulating long-distance telecommunications"). As the district
3 court noted below, however, the Supreme Court recently relied on
4 the presumption in a pharmaceutical failure-to-warn case, even
5 though the federal government has regulated drug labeling for
6 many years. See Wyeth, 129 S. Ct. at 1195 n.3.
7 This Court has recognized that the Telecommunications
8 Act "strikes a balance between two competing aims -- to
9 facilitate nationally the growth of wireless telephone service
10 and to maintain substantial local control over siting of towers."
11 Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529,
12 531 (2d Cir. 2005) (citation and internal quotations marks
13 omitted). In applying this balance between federal and local
14 regulation efforts, we have held that section 332(c)(7) of the
15 Telecommunications Act allows local authorities to regulate
16 matters that do not conflict with federal law. See Freeman, 204
17 F.3d at 323 ("In light of the FCC's pervasive regulation of
18 broadcasting technology, [section 332(c)(7)(A)] is most
19 reasonably understood as permitting localities to exercise zoning
20 power based on matters not directly regulated by the FCC.").
21 2. Application
22 The district court held that Chapter 251 was preempted
23 by field preemption. The district court concluded that federal
24 law occupied the fields of: (1) the regulation of radio
25 frequency interference and (2) the regulation of the technical
26 and operational aspects of wireless telecommunications service.
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1 The district court further concluded that the provisions of
2 Chapter 251 pertaining to radio frequency interference and giving
3 a preference to "alternate technologies" were preempted. N.Y.
4 SMSA Ltd. P'ship, 603 F. Supp. 2d at 722-23, 725-28.
5 We agree with the district court's conclusions for the
6 following reasons.
7 First, as to the regulation of radio frequency
8 interference, our decision in Freeman v. Burlington Broadcasters,
9 204 F.3d 311 (2d Cir. 2000), is dispositive. There, a local
10 zoning board issued a permit for the construction and use of a
11 radio tower on the condition that the permitees remedy any
12 resulting interference with radio frequency. Id. at 315. The
13 issue arose as to whether the zoning board's authority to enforce
14 the permit condition was preempted. This Court concluded that it
15 was, holding that "federal law has preempted the field of [radio
16 frequency] interference regulation." Id. at 320. Reviewing the
17 applicable statutes, we held that "Congress intended the FCC to
18 possess exclusive authority over technical matters related to
19 radio broadcasting" and that "Congress's grant of authority to
20 the FCC was intended to be exclusive and to preempt local
21 regulation." Id. at 320-21; accord Southwestern Bell Wireless
22 Inc. v. Johnson County Bd. of County Comm'rs, 199 F.3d 1185, 1193
23 (10th Cir. 1999) ("Congress intended federal regulation of [radio
24 frequency interference] issues to be so pervasive as to occupy
25 the field.").
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1 The provisions of Chapter 251 pertaining to radio
2 frequency interference are indistinguishable from the permit
3 condition in Freeman. Therefore, they are preempted. Indeed,
4 the Town has acknowledged as much, as it "voluntarily" amended
5 Chapter 251 following the district court's decision "to clarify
6 that the Town is not imposing any regulation with regard to RFI
7 (radio frequency interference)."
8 Second, the provisions setting forth a preference for
9 "alternate technologies" are also preempted because they
10 interfere with the federal government's regulation of technical
11 and operational aspects of wireless telecommunications
12 technology, a field that is occupied by federal law. The federal
13 government has long regulated telecommunications, and in passing
14 the Telecommunications Act, Congress took further steps "to
15 facilitate nationally the growth of wireless telephone service."
16 Omnipoint Commc'ns, Inc., 430 F.3d at 531. The FCC has issued
17 regulations setting technical standards for wireless technology,
18 including, in particular, antennas. See Bastien v. AT&T Wireless
19 Servs., Inc., 205 F.3d 983, 989 (7th Cir. 2000) (The FCC is
20 "responsible for determining the number, placement and operation
21 of the cellular towers and other infrastructure.").
22 Chapter 251 explicitly establishes a "preference" for
23 certain wireless technology -- DAS and microcell systems. By
24 doing so, Chapter 251 relegates other technology -- including
25 technology that would meet the FCC's standards -- to an inferior
26 and decidedly disadvantaged status. As a consequence, Chapter
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1 251 interferes with Congress's goal of facilitating the spread of
2 new technologies and the growth of wireless telephone service.
3 To take advantage of Chapter 251's preference, carriers would
4 have to utilize technology that would require many more (albeit
5 smaller) antennas and substantially different supporting
6 equipment and services. Federal law has preempted the field of
7 the technical and operational aspects of wireless telephone
8 service, and there is "no room" for the provisions of Chapter 251
9 that give a preference to "alternate technologies." Id. at 986.
10 The Town argues that Chapter 251 merely sets forth a
11 "preference" for less intrusive alternative technologies, and
12 that therefore it does not amount to the "regulation" of antenna
13 technology. We disagree. In fact, the "preference" permeates
14 Chapter 251. Applicants using alternate technologies are given a
15 double advantage right at the outset: they are granted 40 points
16 merely because they are using DAS or microcells (including the 10
17 points for stealthing technology), and they need reach only 60
18 points (as opposed to more than 90 or more than 105 points
19 required for other applicants) to attain the much-desired
20 Category A status. Once they attain Category A status, the
21 applicants using alternate technologies undergo a speedier and
22 less rigorous approval process. Indeed, Chapter 251's preference
23 for alternative technologies is so substantial that it
24 effectively mandates their use and interferes with the federal
25 regulatory scheme that occupies the field.
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1 The Town also argues that Chapter 251's preference for
2 alternate technologies is not preempted because it relates solely
3 to an area over which local governments traditionally have had
4 authority -- local zoning and land use. The Town relies heavily
5 on section 332(c)(7)(A), which preserves a local government's
6 authority "over decisions regarding the placement, construction,
7 and modification of personal wireless service facilities." 47
8 U.S.C. § 332(c)(7)(A). The reliance is misplaced.
9 By its terms, section 332(c)(7)(A) preserves the
10 authority of local government over zoning and land use decisions
11 "[e]xcept as provided in this paragraph." In fact, section
12 332(c)(7)(B) imposes limitations on this authority, as it
13 provides that local governments may not discriminate "among
14 providers of functionally equivalent services" or take action
15 prohibiting or effectively prohibiting "the provision of personal
16 wireless services." Id. § 332(c)(7)(B)(I), (II). While section
17 332(c)(7) "preserves the authority of State and local governments
18 over zoning and land use matters," H.R. Rep. No. 104-458, at 207-
19 08 (1996), this authority does not extend to technical and
20 operational matters, over which the FCC and the federal
21 government have exclusive authority, id. at 209. Indeed, in
22 Freeman we held that, "[i]n light of the FCC's pervasive
23 regulation of broadcasting technology, [section 332(c)(7)(A)] is
24 most reasonably understood as permitting localities to exercise
25 zoning power based on matters not directly regulated by the FCC."
26 204 F.3d at 323. Chapter 251 crosses the line between zoning and
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1 land use regulation and the regulation of technical and
2 operational standards.1 Even assuming that Chapter 251 is
3 entitled to the presumption against preemption because zoning and
4 land use are matters within a local government's traditional
5 police powers, the presumption is overcome because Chapter 251
6 goes beyond those areas into the area of technological and
7 operational standards.
8 Finally, the Town relies heavily on this Court's
9 decisions in Omnipoint Commc'ns, Inc. v. City of White Plains,
10 430 F.3d 529 (2d Cir. 2005), and Sprint Spectrum L.P. v. Willoth,
11 176 F.3d 630, 639 (2d Cir. 1999). These were cases where this
12 Court held that a local government could reject an application
13 for approval of the construction of a wireless service facility
14 on the grounds that "less intrusive means" for providing service
15 (e.g., limiting the impact of a cell site by reducing tower
16 height or using a preexisting structure or choosing a different
17 site) could be utilized. Willoth, 176 F.3d at 643. The question
18 of field preemption, however, was not raised in Willoth and
19 Omnipoint, see N.Y. SMSA Ltd. P'ship, 603 F. Supp. 2d at 726, and
20 these were individual permit cases involving specific
21 applications to build specific facilities on specific sites.
22 Particular aesthetic concerns over specific sites were at stake.
1
To the extent that section 332(c)(7)(A) explicitly
addresses preemption, this is a case where implied preemption
must still be considered because the substance and scope of
Congress's preemption of local law remain in question. See
Altria Group, 129 S. Ct. at 543.
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1 In contrast, this case involves a local law that applies to all
2 applications for the construction of wireless service facilities
3 within the Town, and the Town's legislated preference for
4 alternate technologies and a local law's interplay with federal
5 law are thus very much in issue here. Under these circumstances,
6 Willoth and Omnipoint are not controlling.
7 We have considered the Town's remaining arguments and
8 conclude that they are without merit.
9 CONCLUSION
10 For the foregoing reasons, the order of the District
11 Court is affirmed.
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