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In an apparent case of first impression, a federal district court judge in New York has found that aggrieved citizens have no private cause of action under the Telecommunications Act of 1996 to challenge installation of wireless transmission antennas. However, while declining to exercise supplemental jurisdiction over state claims, Northern District Judge Thomas J. McAvoy suggested that residents of a suburban Albany community may have grounds under New York law to oppose the transmission antenna. Mason v. Nextel, 01-CV-1556, apparently represents the first time a court has considered whether citizens can use the Telecommunications Act (TCA) as a sword to prevent a company from installing equipment in their neighborhood. Judge McAvoy found that the act was clearly crafted as a remedy for telecommunications companies to challenge denial of a wireless tower application, not for residents seeking to overturn their town’s approval of an application. “The preemption of local authority, and therefore the scope of federal court review, is limited to decisions which deny applications for wireless facilities,” McAvoy wrote. The matter arises from a controversy in Clifton Park, where Nextel Partners of upstate New York seeks to install wireless telecommunications antennas atop a water tower in a residential neighborhood. Over the objections of residents, the town planning board approved the project, leading to litigation in both state and federal courts. The federal matter was predicated on the Telecommunications Act, and raised a question of whether 47 U.S.C. � 332 contemplates a private right of action. Nextel and Clifton Park argued that there is no private cause of action under the act. Judge McAvoy, applying the four-part test the U.S. Supreme Court articulated in Cort v. Ash, 422 U.S. 66 (1975) for determining whether a federal statute implies a private cause of action, agreed with the defendants. He noted that the preamble to the Telecommunications Act indicates that its purpose was to “promote competition and reduce regulation,” and to “encourage the rapid deployment of new telecommunications technologies.” McAvoy said that suggests the aim of the act was to protect telecommunications providers from wrongful denials, not to assist residents upset when an application is approved. “It is apparent that Congress’ intent was to provide telecommunications companies a vehicle to challenge an alleged wrongful denial of local zoning board decisions,” McAvoy said. “The intent of Congress in passing this law was clearly not to create another forum or avenue of review for property owners to challenge local zoning decisions to which they do not agree.” McAvoy said allowing the plaintiffs to proceed under the act would not only “frustrate the intent of Congress,” but also “invade an area traditionally reserved to state and local government.” However, the court also noted that the 2nd U.S. Circuit Court of Appeals has made clear that the TCA does not “trump all other important considerations, including the preservation of the autonomy of states and municipalities ( Sprint Spectrum LP v. Willoth, 176 F.3d 630, 1999).” Consequently, in declining to exercise jurisdiction over state claims, McAvoy dismissed those claims without prejudice. A state action dismissed by Saratoga County Supreme Court Justice Frank B. Williams is pending appeal at the Appellate Division, 3rd Department. ‘FIRST CASE’ IN NATION Attorney Mary Elizabeth Slevin of Crane, Greene & Parente in Albany, counsel for Nextel, said the ruling is the “first case in the nation that finds that there is no private cause of action under the TCA.” “Carriers need to be able to rely on the Telecommunications Act as relief from abuses of local zoning decisions,” Slevin said. “This makes clear that is what [the act] should be used for.” Richard C. Miller Jr., counsel for the citizens’ group, said he knew he was asking McAvoy to break new ground and realized from the outset that he faced an uphill battle. “But we don’t see this as being that much of a setback because the federal court specifically said that all matters related to zoning were retained by the state and that the Telecommunications Act doesn’t interfere with the normal zoning process,” Miller said. “Judge McAvoy’s decision made clear that there is no pre-emption that precludes the state court from dealing with the state issues. … What we are not sure about is exactly how to bring the state claims from federal court into state court.” Paul Pelagalli of Clifton Park, N.Y., appeared for the town.

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