This action involved a challenge to Town of Clarkstown Local Law No. 14 enacted in 2007, which purported to amend chapter 251 of the Clarkstown Town Code, the purpose of which was to regulate wireless communications facilities. The local law was quickly challenged on several grounds by four FCC licensed communications carriers. The District Court held that Chapter 251 was preempted by the Federal Telecommunications Act in at least two respects. The District Court held that federal law preempted Chapter 251 from regulating proposed facilities with respect to radio frequency interference and alternate technologies.
The Second Circuit has affirmed the District Court Decision.
Town of Clarkstown Local Law No. 14 attempted to create an arbitrary point system designed to categorize various telecommunications applications, the result of which would dictate the specific review process to be followed. For purposes of this article, applications involving distributed antenna systems ("DAS") were highly favorable under the town of Clarkstown law. In fact, an applicant proposing a DAS would likely be subject to a much less rigorous application review process as compared to an application for co-location or a new tower.
The Second Circuit very clearly rejected the approach adopted by the town of Clarkstown. In doing so, the court holds that the town of Clarkstown Local Law No. 14
provisions setting forth a preference for "alternative technologies" are also preempted because they interfere with the federal government's regulation of technical and operational aspects of wireless telecommunications technology, a field that is occupied by federal law.
Municipalities need to be careful (and properly advised and counseled) when attempting to establish regulations that impact wireless communications facilities.
