Cross-appeals from an order of the United States District Court for the Southern District of New York (Young, District Judge*fn2) granting plaintiffs-appellees' motion for summary judgment and denying defendants-appellants' cross-motion for summary judgment. The district court held that a local law purporting to regulate the construction of wireless telecommunications facilities was preempted by federal communications law.
Before: McLAUGHLIN and CHIN, Circuit Judges.*fn1
In 2007, the Town of Clarkstown in Rockland County, New York (the "Town"), passed a local law governing the installation of wireless telecommunications facilities. The law was intended to give the Town the ability to control visual and aesthetic aspects of wireless telecommunications facilities within the Town, and, in particular, it sought to implement a "preference" in residential areas for smaller and less intrusive antennas. Four national telecommunications service providers brought this action below to challenge the law on the grounds that it was preempted by federal communications law. The district court agreed, and held that the law was preempted. We affirm.
A. Federal Regulation of Telecommunications
The field of telecommunications -- the electronic transmission of sounds, words, and images, usually over a great distance -- has long been the subject of federal regulation. In 1910, Congress passed the Wireless Ship Act of June 24, 1910, 36 Stat. 629, and the Radio Acts of 1912 and 1927 followed, 37 Stat. 302; 44 Stat. 1162. See Nat'l Broad. Co. v. United States, 319 U.S. 190, 210-13 (1943) (reviewing history of radio acts). In 1934, Congress passed the Communications Act of 1934, 48 Stat. 1064, and thereby created the Federal Communications Commission (the "FCC"). In doing so, Congress sought to create "a unified and comprehensive regulatory system for the industry," "to protect the national interest involved in the new and far-reaching science of broadcasting." Nat'l Broad. Co., 319 U.S. at 213-14 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 137 (1940)). Congress gave the FCC the exclusive authority to grant licenses to telecommunications providers, see 47 U.S.C. § 151, and it "intended the FCC to possess exclusive authority over technical matters related to radio broadcasting," Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 320 (2d Cir. 2000).
Most relevant to this case, in 1996, Congress enacted the Telecommunications Act of 1996 (the "Telecommunications Act"), Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 151 et seq., as amended). The Telecommunications Act made substantial changes to the federal regulation of telecommunications as Congress sought "to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition." See H.R. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 124. The Telecommunications Act included "new provisions applicable only to wireless telecommunications service providers." Sprint Telephony PCS, LP v. County of San Diego, 543 F.3d 571, 576 (9th Cir. 2008) (emphasis omitted).
In section 332(c)(7) of the Telecommunications Act, Congress preserved the authority of state and local governments over zoning and land use issues, but imposed limitations on that authority. See 47 U.S.C. § 332(c)(7). Section 332(c)(7), entitled "Preservation of local zoning authority," provides:
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
47 U.S.C. § 332(c)(7)(A); see H.R. Rep. No. 104-458, at 207-08 (section 332(c)(7) "preserves the authority of State and local governments over zoning and land use matters"). At the same time, however, section 332(c)(7)(B) provides that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i).
The FCC has promulgated regulations setting forth "technical requirements for use of the spectrum and equipment in the personal communications services." 47 C.F.R. § 24.50. Its regulations cover matters such as, for example, transmitter type, id. § 24.51, radio frequency radiation exposure, id. § 24.51-52, the height of an antenna above average terrain, id. § 24.53, and the marking and lighting of antenna structures, id. § 24.55.
B. The Clarkstown Wireless Law
In July 2007, the Town enacted Local Law No. 14 to amend Chapter 251 of the Clarkstown Town Code. See Chapter 251 of the Clarkstown Town Code, as amended by Local Law No. 14, enacted Jul. 24, 2007. Chapter 251's stated purpose is to provide the Town with: the authority to accommodate and regulate necessary utility infrastructure for the provision of wireless telecommunications facilities within the Town..., to encourage the siting of wireless telecommunications facilities in nonresidential areas on existing structures, to ...