Not in Westchester County?
September 23, 2019Cart

Business

by Westchester County Business Journal
by WCBJ

Pelham loses constitutional challenge on wireless equipment

Three 29-pound bundles of electronics and antenna installed on utility poles in the village of Pelham have survived a constitutional challenge.

The equipment is owned by ExteNet Systems Inc. and is part of a vast wireless communications network.

In 2015, the Pelham Board of Trustees granted ExteNet a special permit and a right-of-way agreement to fill dead spots in T-Mobile’s cellular service that could not be reached with a traditional cell tower.

Last year, the Lisle, Illinois company applied for a permit to modify the equipment so that it could also be used by Verizon Wireless network.

Pelham balked, and ExteNet sued the village in federal court in White Plains.

Pelham law requires proof that a wireless communications facility fills a significant gap in coverage. The data that ExteNet used to justify a permit for T-Mobile’s coverage could not be used to establish a need for Verizon.

The company claimed it was entitled to the permit because the existing nodes are “eligible facilities,” under federal law and Federal Communications Commission regulations.

The Spectrum Act requires local governments to approve modifications of existing wireless facilities, as long as the physical dimensions of the equipment do not change substantially.

Pelham cited the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The federal law violates the anti-commandeering principle of the Tenth Amendment, Pelham argued, “by directing local governments to reach a federally mandated result.”

The federal law also undermines public accountability, the village contended, and forces local officials to rubber stamp permit approvals for private companies at the behest of the federal government.

ExteNet also has a contractual obligation to meet Pelham’s code requirements, the village argued, because the code is incorporated in the right-of-way agreement.

U.S. District Court Judge Cathy Seibel found the village’s positions unpersuasive.

The anti-commandeering clause does not apply, she ruled on March 27, when Congress validly preempts local laws, under the Supremacy Clause. The clause holds that federal law generally takes precedent over state laws, and states may not interfere with the federal government’s exercise of constitutional powers.

Congress has regulated telecommunications since 1934, Seibel noted, and wireless infrastructure since 1996. The purpose of the laws is to promote competition and accelerate deployment of private sector services and technologies.

At their core, FCC laws and regulations limit the ability of state and local governments to regulate telecommunications, and they confer a right to private telecommunications companies to modify their equipment “without having to seek local approval.”

As to public accountability, Seibel wrote, the permit approvals bear the imprimatur of federal authority, so voters who like or dislike the effects of the regulation know who to credit or blame.

And since the village code is preempted by federal law, the terms of the right-of-way agreement have no bearing on ExteNet’s right to a permit.

ExteNet was represented by Andrew P. Schriever, Christopher B. Fisher and Leanne Shofi of Cuddy & Feder LLP of White Plains. Pelham was represented by Kenneth E. Pitcoff, of Morris Duffy Alonso & Faley of New York City.