Agenda - Planning Commission - 06/04/2009

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I I \ (j ',__,'. I ,I I I (l ...... ...- ~ I I I I ! i J Zoning Bulletin May 10, 20091 Volume 31 No.9 for alternate technologies; and (3) its mandated submission of coverage maps demonstrating certain minimal signal strength. The town had argued that: (1) it could make wireless facility siting de- cision based in part 'On preferences for less invasive structures and tech- nologies, and that Chapter 251's preference for alternate technologies merely "codified the weighing of interests that it lawfully [could] do with respect to any individual siting application;" and (2) Chapter 251's re- quirement that Carriers provide coverage maps showing signal strength was meant to merely establish a "baseline for review and comparison of application~. " Both the Carriers and the town @ed motions for summary judgment. "They each asked the court,to determine that there were not material is- sues offact and to decide the matter in theidavor on the law alone.' DECISION: Ordered accordingly (finding Chapter 251 was preempted and ordering it be redrafted). u.: The United States District Court for ,the Southern District of New York held that provisions of Chapter 251 were impliedly preempted by the Telecommunications Act. - The court found that: (1) Chapter 251's requirement that applicants submit information pertaining to RF interference by proposed facilities was clearly impliedly preempted by the FCC's exClusive authority to regulate RF interference under the Telecommunications Act; (2) Chap- ter 251's legislated "preference for certain technologies regardless of site location," interfered with the FCC's regulatory scheme; but (3) Chapter 251's requirement that Carriers provide" coverage maps showing signal strength was not a "regulation," imposing requjrements that conflicted wj!h federal law, but was rather a way for differing applications to be compar~d in a meaningful fashion. Although the coUrt only found portions' of Chapter 251 were pre- empted by the Telecommunications Act, the court invalidated Chapter 251 in its entirety. The court,explained that when portions of an ordi- nance were deemed invalid, courts preferred not to invalidate the entire statute. Instead, they preferred to sever the invalid portion. However, the court said that it could not sever the invalid portionsif they were "so in- tertwined that [their] excision... would leave [an"unintended] regulatory scheme." Here, the court found that the preference for alternate technol- ogies (which it had found was preempted) was "pervasive throughout" Chapter 251. Thus, the court concluded that severance of those invalid provisions would "create a confusing and unworkable statute." Chapter 251 was rendered invalid in its entirety. See also: GTE Mobilnet of South Texas Ltd. Partnership v. Pascouet, 61 S. W,3d 599 (Tex. App. Houston 14th Dtst. 4001). @ 2009 Thomson Reuters 11 I 81