Apartment residents' claims of personal and property injury related to rooftop wireless antenna transmissions are preempted by Telecommunications Act of 1996.

Stanley v. Amalithone Realty, Inc. (New York Supreme Court, Appellate Division, March 13, 2012).

On March 16, 2010, plaintiffs, residents of an apartment building in Manhattan, filed a complaint pleading numerous causes of action, including claims for nuisance, trespass and an unlawful taking. In their prayer for relief, plaintiffs sought a permanent injunction requiring the removal of all rooftop cell transmission antennas; damages for personal and property injury; punitive damages; and a declaratory judgment that they were entitled not to be subjected to unreasonable levels of radiation in their home from wireless transmission antennas. Defendant owned the building and AT&T, a nonparty, leased or licensed the rooftop space where the cell phone tower/antennas were constructed.

The Court stated that the Telecommunications Act of 1996 ("TCA"), in pertinent part, provides that: "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." 47 USC § 332(c)(7)(B)(iv).  The Court noted that in determining the preemptive scope of 47 USC § 332, the FCC has concluded that "judicial action constitutes a form of state regulation".  The Court found the FCC's conclusion persuasive and held that for the purposes of its preemption analysis, common-law causes of action are no different from claims based on a state statute or state regulation.

The Court found that the FCC, pursuant to its regulatory authority, has set forth Maximum Permissible Exposure limits for RF radiation. Although plaintiffs alleged that high levels of RF emissions were found in various areas of their apartment, apparently the levels were within the permissible range of the FCC's guidelines and defendants gave plaintiffs a certificate of compliance with the FCC regulations provided to them by AT&T. Although plaintiffs apparently asserted that they were not asking the Court to regulate RF emissions, the Court stated that all of plaintiffs' claims were premised on the notion that the RF emissions emanating from the site were unsafe or dangerous.

The Court stated that entertaining plaintiffs' claims would require the Court to second guess the FCC's standards and engage in its own form of judicial regulation of RF emissions. Because allowing state law challenges to the judgment of Congress and the FCC with respect to allowable levels of RF emissions would interfere with the goal of national uniformity in telecommunications policy, the Court believed that the presumption against preemption was overcome by the need to preclude the conflict between state and federal law that would arise were the Court to entertain plaintiff's state law claims. The Court held that plaintiffs' claims were preempted.

Anthony Dorland
(612) 877-5258