Agenda - Planning Commission - 07/12/2012

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May 10, 2012 I Volume 6 I Issue 9 Zoning Bulletin purpose, § 332(c)(7) of the TCA limits the authority of state and local govern- ments over zoning and land use issues related to the installation of wireless communications facilities. The court further explained that, under the TCA, a service is subject to a different regulatory framework depending on whether it constitutes an "infor- mation service" or a "telecommunications service." The court noted that the FCC has concluded that wireless broadband Internet access service, such as Clearwire's 4G, is an "information service" and not a "telecommunications service." This, said the court, means that the FCC has classified wireless broadband Internet access service outside of the statutory reach of § 337(c)(7) of the TCA. Thus, based on the FCC's definition, the court concluded that because Clearwire's Proposed Facility would be used solely to provide an "informa- tion service," it did not qualify as a "personal wireless service facility" subject to limitation on local zoning authority in § 332(c)(7)(B) of the TCA. Accord- ingly, the court denied Clearwire's motion for summary judgment and granted the Village Defendant's cross -motion for summary judgment, and dismissed Clearwire's cause of action for declaratory and injunctive relief based on violations of the TCA. See also: Comcast Corp. v. F.C.C., 600 F.3d 642 (D.C. Cir. 2010). See also: Arcadia Towers LLC v. Colerain Tp. Bd. of Zoning Appeals, 53 Communications Reg. (P & F) 410, 2011 WL 2490047 (S.D. Ohio 2011). Case Note: The court noted that "the law had not kept up with the changes of technology." However, the court also found that it was "not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law." Case Note: Clearwire had also raised state law claims. The court found these claims raised such an important issue (i.e., whether a provider of wireless broadband Internet services is a "public utility" and therefore subject to the `public necessity" standard for the purposes of zoning applications under New York law) that they should first be ad- dressed by the New York state courts. As such, the court declined to exercise supplemental jurisdiction over Clearwire's state law claims and granted the Village Defendants' cross -motion for summary judgment, dismissing those claims without prejudice. 8 © 2012 Thomson Reuters