The key is understanding “general authority,” (47 U.S.C. § 332(c)(7)(A)) where the United States Congress preserved general authority to local governments to regulate placement, siting, maintenance, operations, and construction of cell towers and other wireless facilities within their jurisdictions.
It is necessary for communities to take control at the local level to strengthen wireless ordinances in order to assert their authority and protect residents.
August 18, 2022 | Zero5G.com | https://casetext.com/case/extenet-sys-v-vill-of-flower-hill
The far reaching decision on July 29, 2022, in Extenet Systems Inc v. The Village of Flower Hill, underscores the general authority of local governments and communities to control the placement of wireless facilities within their jurisdictions.
Local governments have been misinformed by municipal lawyers and consultants regarding the Telecommunications Act of 1996 (TCA) as to general authority by local jurisdictions to prevent irresponsible placement of cell towers and other wireless facilities.
A Senior United States District Court Judge in the Eastern District of New York rejected the FCC Order and issued two significant determinations in the Extenet Systems Inc. v. The Village of Flower Hill decision:
- The FCC order trying to strip local authority of power to regulate placement of wireless facilities is not binding upon federal Courts in New York nor is it binding upon local governments in New York;
2. Before they can sue a Town, City, Village or County, a wireless company must provide verifiable evidence to the local zoning board that a significant gap in personal wireless service exists. Additionally, the wireless company must prove that the new installation provides the least intrusive means in filling the gap.
The federal judge has made clear that local governments have the power to control the number and placement of wireless facilities in their jurisdictions, as intentionally preserved to them by Congress.
“…the statute requires that the corporation must “first obtain from . . . the trustees of villages . . . permission to use the streets within such . . . village . . . for the purposes herein set forth.” -p.13
The Flower Hill case underscores the authority of communities and local governments to enact strong local zoning provisions to protect residents from a blight of uncontrolled wireless infrastructure deployment.