Wiley Rein Attorneys Obtain Second Circuit Affirmance Of Major Victory For Wireless Carriers

Monday, August 2, 2010 - 01:00

In a major victory for the wireless industry, the U.S. Court of Appeals for the Second Circuit held that local attempts to regulate wireless technologies by establishing a "preference" for certain "alternate technologies," such as Distributed Antenna Systems (DAS) or microcell antennas, are preempted by federal law because they trench upon a field occupied by the federal government.

A team of Wiley Rein communications attorneys, led by Andrew G. McBride and Joshua S. Turner, on behalf of Verizon Wireless and other major telecommunications carriers, had successfully mounted a facial challenge to a local town's wireless siting ordinance in federal district court. In New York SMSA L.P. d/b/a Verizon Wireless v. Town of Clarkstown, the Southern District of New York found that a local ordinance that legislated a preference for alternate technologies, including DAS, and which also regulated radio frequency interference, was preempted by federal law under a field preemption theory.

On appeal to the Second Circuit, the town had argued that its regulatory preference was permissible as an exercise of local zoning interests preserved by federal law. The Second Circuit disagreed, concluding that "the provisions setting forth a preference for 'alternate technologies'" are preempted "because they interfere with the federal government's regulation of technical and operational aspects of wireless telecommunications technology, a field that is occupied by federal law. The federal government has long regulated telecommunications, and in passing the Telecommunications Act, Congress took further steps 'to facilitate nationally the growth of wireless telephone service.' The Federal Communications Commission (FCC) has issued regulations setting technical standards for wireless technology, including, in particular, antennas." Because of the local ordinance's substantial preference for alternative technologies, the Second Circuit readily found that it "interferes with the federal regulatory scheme that occupies the field" and is preempted.

Wiley Rein served as lead counsel on behalf of a group of wireless carriers in this matter, including Verizon Wireless.

On July 16, Wiley Rein hosted a Summer Law Day event for students from the Thurgood Marshall Academy, a DC public charter high school that focuses on issues of law and government. More than 100 rising ninth grade students gathered at the offices of Wiley Rein for a half-day workshop on basic legal principles that included a series of mini-mock trials, roundtable discussions and interactive case studies. The program aims to help students learn critical thinking skills, develop public speaking techniques and practice how to respectfully disagree and respond to an argument.

This is the seventh time that Wiley Rein has participated in the Law Day program. About 20 enthusiastic lawyers and summer associates served as faculty members for the law day program.

Thurgood Marshall Academy was founded upon the belief - articulated by U.S. Supreme Court Justice Thurgood Marshall - that all children have the right to a first-class education and the opportunity to reach their full potential. As the District's first law-themed public charter high school, the academy's mission is to prepare students to succeed in college and to actively engage in our democratic society. It serves almost 400 students in grades 9-12 and boasts a 100 percent college acceptance rate in every graduating class to date.