This case was so hard to find. I’m putting it here so all of you can find it easily.
Crown Castle USA Inc, v. City of Calabasas, Superior Court of California, County of Los Angeles, Case No. BS140933, January 24, 2014 (Chalfant, J.).
Key quotations (each painstakingly transcribed):
“As Petitioners correctly argue (Mot. at 18), the Ordinance stands in the way of the FCC guidelines by creating a competing approval process for the RF emissions by requiring actual testing to verify the basis for the FCC approval. The Ordinance requires submission of a FCC compliance report stating that the Permit applicant will comply with FCC RF emission standards and details about the projected RF exposure levels, analysis and calculations. CMC §17.12.050(C)(2)(e). The applicant must retain a RF expert to review inter alia RF emission data and compliance. CMC §17.12.050(C)(5). The Permit will condition approval on preparation by a qualified engineer of an RF exposure report verifying that the facility is operating in conformance with RF exposure standards (CMC §17.12.050(C)(6)(b)., and on monitoring of compliance with RF exposure standards (CMC §17.12.050(C)(6)((f)).”
“The City’s attempt at ensuring that wireless facilities meet FCC standards is itself preempted regulation. Federal law has preempted the field of RF interference regulation (Freeman v Burlington Broadcasters, Inc., (2d Cir. 2000) 204 F.3d 311,320. This mens that the scheme of federal regulation is sufficiently comprehensive that Congress “left no room” for supplementary state regulation. Viva!, supra, 41 Cal. 4th at 938.”
That Viva! case is Viva! International Voice for Animals v Adidas Promotional retail Operations, Inc., (2007) 41 Cal.4th 929.
“It is true that section 332(c)(7)(B)(iv) contains a limitation; it prohibits a municipality from regulating the placement, construction and modification of wireless facilities on the basis of the environmental (health) effects of RF emissions where such facilities comply with FCC regulations. The Ordinance seizes on the latter clause o regulate RF emissions through testing and a compliance report on RF exposure, requiring an independent expert to review the RF emission data and compliance, and requiring the ongoing monitoring of RF emissions. But section 332(c)(7)(B)(iv) does not permit it to do so. Under that provision, a city has the limited power to make decisions regarding the placement, construction and modification of wireless facilities, and could lawfully require proof that a Permit applicant has whatever certificate or license the FCC requires. But the regulation of a facility’s planned or ongoing operation constitutes an unlawful supplemental regulation into an area of federal preemption. See Cellular Phone Task Force, supra, 205 F.3d at 96. The City’s requirements for reports and testing in order to independently check on compliance with FCC regulations is a preempted supplemental regulation of wireless service facility operation. See ibid.”
(emphasis in original)
“The Ordinance does not seek to ensure that an applicant for a Permit has a pertinent FCC certificate – which would be permitted – it seeks to independently ensure that the applicant is in compliance, and remains in compliance, with FCC requirements. And this effort is not made through City inquiry or effort, but by compelling the applicant to retain an expert, perform testing, and prepare a report. This is preempted supplemental regulation.”
Here is the judgment.
Here is the tentative ruling, which the judgment affirmed with minor changes.