Opposition Brief — City of New Rochelle v. Crown Communication New York, Inc.

Supreme Cour.

li )

| JUN 1 2005

OFFICE Or Tei CLERK |

No. 04-1511

In The

Supreme Court of the Gnited States

CITY OF NEW ROCHELLE, et al.,

Petitioners,

v.

CROWN COMMUNICATION NEW YORK, INC.,

and THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF NEW YORK,

Respondents.

¢

On Petition For Writ Of Certiorari

To The New York State Court Of Appeals

+

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

JOHN T. MCMANUS

CRANE, PARENTE, CHERUBIN

& MURRAY

Attorneys for Respondent

Crown Communication

New York, Inc.

90 State Street

Albany, New York 12207

518.432.8000

Of counsel: JACQUELINE PHILLIPS MURRAY

June 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Respondent Crown Communication New York, Inc. is

a wholly-owned subsidiary of Crown Castle International

Corporation, its parent corporation, which is publicly

traded on the New York Stock Exchange under ticker

symbol “CCI.”

ii

TABLE OF CONTENTS

Page

Table of Authoritios...,....:::scccsssesssscscssencsccnssoonanensoussoes iii

Opinions Below ................cccccrsssssesescosccscccccccscessescscees 1

Juriadictions..........0::0«ss0s«sssascesussssepsenseabssupsaepeenemiansenees 1

Statement of the Caae......:rscsscccosssocsesessstsssesssesoncsasese 2

Reasons for Denying the Petition..................ccsseeeeeees 6

I. The New York Court Of Appeals Did Not

Decide An Important Question Of Federal

Law, And Its Opinion Does Not Conflict With

Relevant Decisions Of This Court...............00+ 8

II. There Is No Conflict Among State Courts Of

Last Resort On An Important Federal Ques-

THOM. .......asccssssensedaensnssesnsebeelsaneinsnhaanninnenaseaneleeaiens 12

III. The Second Purported Federal Question Was

Never Presented To Or Decided By The State

Courts Below And, In Any Event, Is Not An

Important Question Of Federal Law................. 14

ComlvngBi0t «. cocs:sosnakdssasncikeeisenematenenenienianaaneeneneannraiianaes 16

TABLE OF AUTHORITIES

Page

CASES: |

AT&T Wireless PCS, Inc. v. City Council of the City

of Virginia Beach, 155 F.3d 423 (4th Cir. 1998)............. 12

Bailey v. Anderson, 326 U.S. 203 (1945)..........:ccccseseceeees 14

Board of Supervisors of Fairfax County, Virginia v.

Washington, D.C. SMSA L.P., 522 S.E.2d 876 (Va.

Se ee ee aaa ee See Tee 12

Bush v. Gore, 531 U.S. 98 (2000)..............ccccsssssssssccccsssssesees 9

Cardinale v. Louisiana, 394 U.S. 437 (1969)................ 6, 14

Cellular Tel. Co. v. Rosenberg, 624 N.E.2d 990

TIA cdi sieshieliateceaaaianetatinasaseenmniantaestaesnicineieaaneiions 2,6

City of Rancho Palos Verdes v. Abrams, 125 S. Ct.

EL REE LI eo ee SR Te 10

Connecticut Natl Bank v. Germain, 503 U.S. 249

alae asad ci aesietesihinnentamerimiiines 10

County of Monroe v. City of Rochester, 530 N.E.2d

ETT HEITIIED cidsciniihmitnidiastbmistnipeanentnmmiensadenanasen 4, 5, 8,9

Gregory v. Ashcroft, 501 U.S. 452 (1991) .............cssceceeeeees 11

GTE Wireless v. Anderson Township, 731 N.E.2d

201 (Ohio Ct. App.), appeal dismissed sua sponte,

TAB FEFEBe GET CRS TEGO ccnsccsccsccssccsncsscseseseseresene 12,13

Mason v. O’Brien, No. 1:01-CV-1556, 2002 U.S.

Dist. LEXIS 19456 (N.D.N.Y. Sept. 30, 2002)............... 15

Nixon v. Missouri, 541 U.S. 125 (2004)..............:sceeeeee 9, 10

a iii

|

|

iv

TABLE OF AUTHORITIES — Continued

Page

Omnipoint Communications, Inc. v. Common |

Council of the City of Peekskill, 202 F. Supp. 2d

ee sk TEED wleisnititanbiisstinadiionnindpiaeeasitinindesiiiand 12, 13

Omnipoint Communications Enters., L.P. v. New-

town Township, 219 F.3d 240 (3d Cir. 2000)................. 12

Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d

SIU MUTI ietenichiecialacicacteh tesiiesiendeldintsiacesiiabnebeniaiaaiannciinidl 9,11

Street v. New York, 394 U.S. 576 (1969)..............cceeeeceeeeees 14

STATUTES:

et INT seeteaiiasinecndatsisnctanieeesidibinnstnlinabtinisiinnarinsiteisitnlaiiio 1,6

EE SEs ED iintiictchciinaiatieaiaiibisastiniinaiesccileicetbtbiaiainiitiann 8,9

BF Spe EE Pisescesitisheialcehataliihisaiencnabsinsnciencers 8, 9,15

MISCELLANEOUS:

142 Cong. Rec. H1145 (daily ed. Feb. 1, 1996).................. 10

H.R. Conf. Rep. No. 104-458 (1996) ...........csssssseseessseeee 11

6 N.Y. Comp. Codes R. & Regs. tit. 6, § 617...........:ccccce00 3

SOR, SIG, Bs SO si sicipcaclsainsishicncanihclaadicisinipidiebiendigineatbabsieenataan 6, 7,8

A TC Ws. I cctsidenjencdssniontnibeaienptalcanaghaciacintaxpinancakuaadabich 6

1

BRIEF IN OPPOSITION

Respondent Crown Communication New York, Inc.

(“Crown”) respectfully asks this Court to deny the Petition

seeking review of the Decision of the New York Court of

Appeals.

4

Vv

OPINIONS BELOW

The opinion of the New York Court of Appeals (Pet.

App. 1a-20a) is officially reported at 824 N.E.2d 934 (N.Y.

2005). The opinion of the Supreme Court of the State of

New York Appellate Division, Second Department (Pet.

App. 21a-25a) is reported at 765 N.Y.S.2d 898 (App. Div.

2003). The June 28, 2002, Decision and Order of the

Supreme Court of the State of New York, County of West-

chester (Pet. App. 55a-57a) is unreported.

4

,

Vv

JURISDICTION

The opinion of the New York Court of Appeals is dated

February 10, 2005. The instant Petition for a writ of

certiorari was filed in this Court on May 6, 2005.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257. As explained in detail below, however, the

second question presented by Petitioner concerning pre-

emption was not properly presented to or decided by the

lower courts. Thus, this Court lacks jurisdiction to deal

with the second question presented.

hb

Vv

STATEMENT OF THE CASE

In 1997, the New York State Police, on behalf of itself

and certain other participating New York State agencies

(collectively, the “State”), entered into the Telecommunica-

tions Site Manager Service Agreement (the “TSMA” or the

“Agreement”) with Castle Tower Holding Corporation

(“Castle”). The purpose of the TSMA is to develop the

infrastructure needed to support the State’s current and

future wireless telecommunications needs, to coordinate

requests from wireless telecommunications providers to

install their public utility antennas’ on the State’s infra-

structure in furtherance of promoting the rapid deploy-

ment of wireless telecommunications service consistent

with the federal Telecommunications Act of 1996 (the

“TCA”), and to reduce the proliferation of new tower

structures across the State through shared use of the

State’s existing tall structures and wireless infrastructure.

To that end, pursuant to the TSMA, Castle has an exclu-

sive license to construct and operate telecommunications

facilities on State-owned lands and rights-of-way. The

State is the legal and equitable owner of these towers and

has the right and first choice to install its communications

equipment on them. Castle is further authorized as the

State’s agent to license space on the State’s towers to

localities and commercial wireless telecommunications

providers. Castle assigned the Agreement to Crown in

1998.

* The New York Court of Appeals has held that wireless telecom-

munications providers are public utilities because wireless telecommu-

nications services are essential to the public good. See Cellular Tel. Co.

v. Rosenberg, 624 N.E.2d 990, 993 (1993).

3

Subsequently, Crown identified two potential locations

for towers on State-owned property within the City of New

Rochelle (the “City”), and the State granted Crown ap-

proval to commence a preliminary site evaluation for the

construction of both towers. The first tower was to be a

120-foot tall monopole, which would replace an existing

110-foot tall lattice communications tower located on a

New York State Department of Transportation (“DOT”)

right-of-way (the “Replacement Tower”). The second was a

new structure, which was to be erected at a DOT mainte-

nance yard (the “Yard Tower”). Both sites are situated

along a heavily-trafficked thoroughfare — the Hutchinson

River Parkway.

In May 2000, Crown informed the City of the two

proposed towers. The following month, Crown and the

State gave a public presentation to the Mayor and City

Council regarding the purpose and intended use of the two

proposed towers. At this meeting, the City voiced no

objection to the siting or construction of the towers, and

otherwise submitted no comments on the proposal. The

State and Crown also offered space on the facilities to the

municipality for use by its public safety agencies, which

invitation was reiterated in correspondence sent to the

City. Subsequently, the DOT performed an environmental

review of both sites under the New York State Environ-

mental Quality Review Act, see 6 N.Y. Comp. Codes R. &

Regs. tit. 6, § 617 et seg., and issued a “negative declara-

tion” for each location, finding that neither the Replace-

ment Tower nor the Yard Tower would result in any

significant adverse environmental or aesthetic impact

based on the nature and location of the sites.

Crown proceeded with the construction of the towers

and entered into license agreements with a number of

4

commercial wireless telecommunications providers to

lease space on the towers for their equipment. After the

Yard Tower was completed and during construction of the

Replacement Tower, the City issued a stop work order,

contending that the towers were subject to the City’s

zoning laws and that Crown must therefore apply for a

special permit from the City’s planning board.

In 2001, Crown commenced separate proceedings for

each of the towers seeking a judgment prohibiting the City

from enforcing its zoning regulations to halt construction

of the towers and a declaration that the towers are exempt

from the local zoning regulations. After consolidating the

two matters, Supreme Court, County of Westchester

employed the well-settled “balancing of public interests”

test adopted by the New York Court of Appeals in County

of Monroe v. City of Rochester, 530 N.E.2d 202 (N.Y. 1988),

to determine whether the governmental land-use at issue

should be subject to local zoning. Initially, the court

declared the towers immune from local zoning regulations

and enjoined the City from interfering with their construc-

tion and operation (Pet. App. 26a-33a).* Following the

City’s motion for reargument, the court modified its prior

order to the extent that it held that antennas of the

commercial telecommunications providers to be attached

to the towers were subject to local zoning regulation. The

court otherwise adhered to its original determination that |

* The City served a notice of appeal from the resulting Order, but

the City failed to perfect the appeal. As a result, the appeal was

dismissed by the Appellate Division, Second Department on November

6, 2002.

a Sm yee

5

the State’s towers were not subject to local zoning regule-

tion (Pet. App. 55a-57a).’

Relying on the County of Monroe test, the Appellate

Division, Second Department unanimously modified

Supreme Court’s determination by declaring that the

commercial wireless telecommunications antennas are not

subject to local zoning regulation and otherwise affirmed.

See 765 N.Y.S.2d at 900. As relevant here, the Appellate

Division further held that the TCA does not “mandate

compliance with local zoning regulations under the cir-

cumstances herein.” Jd. at 901.

The New York Court of Appeals affirmed the Decision

of the Appellate Division. Applying its County of Monroe

test, the Court of Appeals held that the wireless telecom-

munications providers’ antennas attached to the State’s

towers are within the immunity from local regulation that

the State’s towers enjoy. See 824 N.E.2d at 938-940. The

Court of Appeals further held that this immunity does not

conflict with the TCA. Specifically, the Court held that,

although “the TCA may not limit a government’s zoning

ability, it does not dictate that a locality’s regulations

trump State interests where competing interests exist.” Id.

at 939-940. Rather, consistent with County of Monroe, the

Court of Appeals held that the commercial wireless tele-

communications providers’ antennas are “embraced within

the immunity already afforded to the state-owned towers

pursuant to the balancing test.” Jd. at 940.

\

* Because the City failed to challenge the immunity of the towers

themselves on appeal, their exemption from local zoning regulation was

not at issue below and is not before this Court. See 530 N.E.2d at 937

n.2.

6

Both towers are now fully operational and host com-

munications equipment belonging to both the State and

certain commercial wireless telecommunications provid-

ers. As a result, the towers provide basic and emergency

wireless telecommunications services to the many travel-

ers on the Hutchinson River Parkway, local residents, and

emergency service personnel via both governmental and

public utility wireless telecommunications antennas. See

id. at 936 n.1.

Notwithstanding the recognized public benefit derived

by the community from construction and operation of the

State’s towers and the governmental and public utility

wireless telecommunications antennas they support, see

Rosenberg, 624 N.E.2d at 993, the City now petitions this

Court seeking review of the Decision of the New York

Court of Appeals.

2

7

REASONS FOR DENYING THE PETITION

This Court’s Decisions and Rules have long required

that, where review of a state-court judgment is sought, a

petitioner must show that the subject federal question was

raised, preserved, and passed upon in the state courts

below. See, e.g., Cardinale v. Louisiana, 394 U.S. 437, 438

(1969); Sup. Ct. R. 14(g)(i); see also 28 U.S.C. § 1257. Even

if these jurisdictional prerequisites are satisfied, this

Court’s “considerations governing review on certiorari” are

stringent: “[rleview on a writ of certiorari is not a matter

of right, but of judicial discretion. A petition for writ of

certiorari will be granted only for compelling reasons.”

Sup. Ct. R. 10. As relevant here, these considerations

include whether a state court has decided “an important

———————_————— a

7

question of federal law that has not been, but should be,

settled by this Court, or has decided an important federal

question in a way that conflicts with relevant decisions of

this Court,” Sup. Ct. R. 10(c), or whether “a state court of

last resort has decided an important federal question in a

way that conflicts with the decision of another state court

of last resort.” Sup. Ct. R. 10(b).

In its Petition, the City seeks review of two purported

federal questions. The first question presented is whether

the Decision of the New York Court of Appeals “exempting

private telecommunications facilities located on state-

owned land from local regulations [is] inconsistent with

the Telecommunications Act.” (Pet. at i). The second

question presented is whether the State is “preempted by

the Telecommunications Act from extending its’ [sic]

zoning immunity to certain telecommunications providers

located on state-owned land to the clear disadvantage of

other carriers required to comply with local zoning on

order to operate in New Rochelle.” Id.

As demonstrated in detail below, given the utter lack

of merit to the City’s first purported federal question, the

New York Court of Appeals did not decide an important

question of federal law in rejecting this claim. Nor is there,

as the City claims, a split among state courts of last resort

on this issue. Further, as explained below, the City’s

second purported federal question was not presented to or

— by its own admission (Pet. at 3) — never passed upon in

the State courts below. As such, this Court lacks jurisdic-

tion to deal with this particular issue. In any event, this

issue is without merit. Finally, there are no other “compel-

ling reasons” to grant certiorari. Thus, the City’s Petition

for a writ of certiorari should be denied in its entirety.

8

I. The New York Court Of Appeals Did Not Decide

An Important Question Of Federal Law, And Its

Opinion Does Not Conflict With Relevant Deci-

sions Of This Court

Purportedly relying on 47 U.S.C. §§ 332(c)(7) and

253(c) in its discussion of the first purported federal

question, the City opines that the TCA “requires facilities

located on government property to comply with local

regulations.” (Pet. at 9). From this creaky foundation, the ©

City advances an argument that the Decision of the New

York Court of Appeals holding that the commercial wire-

less telecommunications providers’ equipment is embraced

within the immunity already afforded to the State-owned

towers pursuant to the County of Monroe test somehow

conflicts with the TCA. The City’s argument, however, is

belied by the plain language of the TCA and is without

merit. As such, review by this Court is unwarranted as the

New York Court of Appeals did not decide “an important

question of federal law that has not been, but should be,

settled by this Court.” Sup. Ct. R. 10(c).

Section 332(c)(7)(A) provides: “nothing in this Act

shall limit or affect the authority of a State or local gov-

ernment or instrumentality thereof over decisions regard-

ing the placement, construction, and modification of

personal wireless service facilities.” 47 U.S.C. § 332(c)(7)(A)

(emphasis added). Section 253(c) provides: “Nothing in this

section affects the authority of a State or local government

to manage the public rights-of-way or to require fair and

reasonable compensation from telecommunications provid-

ers, on a competitively neutral and nondiscriminatory basis,

for use of public rights-of-way on a nondiscriminatory basis,

if the compensation required is publicly disclosed by such

government.” 47 U.S.C. § 253(c) (emphasis added).

— —— TT Te NS

9

Plainly, these provisions merely carve out an excep-

tion to the TCA’s preemptive sweep by preserving state and

local jurisdiction — if any — to regulate certain aspects of

telecommunications siting. Cf. Sprint Spectrum, L.P. v.

Willoth, 176 F.3d 630, 637 (2d Cir. 1999). Contrary to the

City’s argument, neither provision expressly requires local

regulation of the placement of wireless communications

antennas, nor do the statutes alter the traditional rela-

tionship between a state and its political subdivisions. See

Nixon v. Missouri, 541 U.S. 125, 140 (2004) (holding that

the State of Missouri’s regulation of wireless telecommuni-

cations service by local governments does not violate 47

U.S.C. § 253 because it is incongruous to “interpose[]

federal authority between a State and its municipal

subdivisions” and federal law should not “trench on the

States’ arrangements for conducting their own govern-

ments”). Thus, where, as here, there is a conflict between a

state and locality as to a land use issue, the TCA leaves

resolution to state law. In New York, such conflicts are

governed by the test articulated in County of Monroe and

its progeny, which is the framework within which the New

York Court of Appeals properly resolved the instant ~

dispute. See id.; see also Bush v. Gore, 531 U.S. 98, 112

(2000) (Rehnquist, C.J., concurring) (“In most cases,

comity and respect for federalism compel us to defer to the

decisions of state courts on issues of state law.”).

Further, the City’s contention that the TCA not only

preserves state and local law, but that it requires that local

law be followed instead of state law concerning the siting

of telecommunications facilities (Pet. at 9), turns sections

332(c)(7(A) and 253(c) on their heads by, in essence, feder-

alizing local law such that, pursuant to the Supremacy

Clause, local law preempts all state law to the contrary.

10

Such a radical interpretation of the TCA finds no support

in the plain language of the statute, its legislative history,

or relevant case law. See Nixon, 541 U.S. at 140.

To the extent that the City cites to a concurring

opinion of this Court and the TCA’s legislative history‘ in

purported support of the argument that local laws some-

how preempt state law under the TCA, the City’s selective

quotations are taken out of context. For example, when

the City quotes the concurring opinion in City of Rancho

Palos Verdes v. Abrams, 125 S.Ct. 1453, 1463 (2005)

(Breyer, J., concurring), that Congress specifically in-

tended that “State and local authorities would remain free

to make siting decisions,” the City blatantly ignores

Justice Breyer’s preceding point that this is as opposed to

having “a Federal Communications Commission wireless

tower siting policy that would pre-empt state and local

authority.” Id. at 1462 (emphasis added). The same type of

misleading selective quotation by the City also takes place

in regard to certain legislative history of the TCA. First,

the City quotes Representative Sensenbrenner as stating

that “[t]he authority of State and local governments over

zoning and land use matters is absolutely essential and

must be preserved.” 142 Cong. Rec. H1145 (daily ed. Feb.

1, 1996) (statement of Rep. Sensenbrenner). The City

disingenuously connects this cherry-picked remark to its

argument that the TCA somehow “requires” local law to be

followed in siting wireless telecommunications facilities. A

review of Representative Sensenbrenner’s complete

* Since the plain language of the provisions at issue in the TCA

does not support the City’s contention, there is no need to even turn to

the statute’s legislative history. See Connecticut Nat'l Bank v. Germain,

503 U.S. 249, 253-254 (1992).

Re ne a a a

"ae

11

remarks on the subject, however, makes clear that he

made the above statement in the context of reaffirming his

disapproval of a prior bill “that would have allowed the

Federal Communications Commission (FCC) to issue rules

that would preempt local zoning on where to site cellular

communications towers.” Jd. Thus, Representative Sen-

senbrenner’s comments were made, not in support of the

bizarre prospect of elevating local law over state law

through the TCA, but in support of preserving local law

from preemption by the FCC, which is consistent with the

concurring opinion in Abrams. The second piece of legisla-

tive history cited by the City states that section 704 will

“prevent[] Commission preemption of local and State land

use decisions and preserve[] the authority of State and

local governments over zoning and land use matters

except in the limited circumstances set forth in the confer-

ence agreement.” (H.R. Conf. Rep. No. 104-458 (1996), at

207-208 (emphasis added). As with Representative Sen-

senbrenner’s remarks, the City attempts to take comments

concerned with preserving some local authority from

federal preemption into support for its incorrect assertion

that local law somehow trumps state law. See Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991) (holding that, “if Con-

gress intends to alter the ‘usual constitutional balance

between the States and the Federal Government,’ it must

make its intention to do so ‘unmistakably clear in the

language of the statute.’”).°

* Not surprisingly given the utter lack of support from the plain

language of the TCA or its legislative history, none of the decisions cited

by the City supports the proposition that the TCA mandates that local

law be upheld over contrary state law. Indeed, these decisions involve

the interplay between the TCA and local laws, not instances of conflict

between state and local laws. See, e.g., Sprint Spectrum, L.P. v. Willoth,

(Continued on following page)

12

Finally, the City does not assert that the Decision of

the New York Court of Appeals conflicts with relevant

decisions of this Court.

In sum, the City fails to cite to any authority for its

fanciful proposition that the TCA requires local govern-

ment regulation of wireless communication infrastructure

siting over state law. It is clear then that the TCA is not

inconsistent with the Decision of the New York Court of

Appeals, which held that the State’s utilization of its

property is immune from local government regulation.

Given the lack of merit to the City’s argument concerning

the first purported federal question, this Court should

deny the Petition.

II. There Is No Conflict Among State Courts Of

Last Resort On An Important Federal Question

In a final bid to secure review of the first purported

federal question by this Court, the City endeavors to

create a conflict among state courts of last resort concern-

ing the applicability of local law on wireless telecommuni-

cations facilities sited on state-owned land. Although the

court of last resort in Virginia, see Board of Supervisors of

Fairfax County, Virginia v. Washington, D.C. SMSA L.P.,

522 S.E.2d 876 (Va. 1999), and an intermediate court in

Ohio, see GTE Wireless v. Anderson Township, 731 N.E.2d

176 F.3d 630 (2d Cir. 1999) (reviewing locality’s denial of application for

wireless telecommunications facility under the TCA); Omnipoint

Communications Enters., L.P. v. Newtown Township, 219 F.3d 240 (3d

Cir. 2000) (same); AT&T Wireless PCS, Inc. v. City Council of the City of

Virginia Beach, 155 F.3d 423 (4th Cir. 1998) (same); Omnipoint Com-

munications, Inc. v. Common Council of the City of Peekskill, 202

F. Supp. 2d 210 (S.D.N.Y. 2002) (same).

13

201 (Ohio Ct. App.), appeal dismissed sua sponte, 718

N.E.2d 447 (Ohio 1999),° considered the issue of whether

certain wireless telecommunications facilities that were

constructed on state-owned property were subject to local

law and reached contrary conclusions, importantly, neither

court addressed the TCA.’ Indeed, as was the case here,

the courts in these two matters resolved the issue pursu-

ant to their respective state’s statutes and decisional law.

In sum, although the court of last resort in Virginia and an

intermediate court in Ohio considered the issue of whether

certain wireless telecommunications facilities that were

constructed on state-owned property were subject to local

law, since both holdings were predicated on state law

grounds and neither court addressed the TCA, there is no

conflict among state courts of last resort on an important

federal question.*

* Although the City misleadingly states that the “[t]he Supreme

Courts of both Virginia and Ohio have considered this issue yet arrived

at different outcomes,” (Pet. at 1), importantly, the Supreme Court of

Ohio simply dismissed an appeal from this decision on the grounds that

no substantial constitutional question was presented and that a

discretionary appeal, if applicable, was not allowed. See 718 N.E.2d 447

(Ohio 1999). Thus, contrary to the City’s assertion (Pet. at 1, 14), the

Supreme Court of Ohio has not “decided” the issue of whether the TCA

requires the application of local law to wireless telecommunications

facilities located on state-owned land.

* It should also be noted that there are substantial factual differ-

ences between these decisions.

* In the course of discussing the above decisions from Virginia and

Ohio, the City cites to Omnipoint Communications, Inc. v. Common

Council of the City of Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002),

noting that “[a] federal court in New York has held that the location of

personal wireless service facilities on public property is subject to local

zoning regulations.” (Pet. at 12 n.2). Omnipoint is inapposite to the

instant action for a number of reasons; most importantly, the dicta the

City references from Omnipoint concerns the City’s attempt to use its

(Continued on following page)

14

Ill. The Second Purported Federal Question Was

Never Presented To Or Decided By The State

Courts Below And, In Any Event, Is Not An Im-

portant Question Of Federal Law

This Court has long held that, in order to even have

jurisdiction over a particular issue, the subject federal

question must be raised, preserved, and passed upon in

the state courts below. See, e.g., Cardinale, 394 U.S. at

438. Here, the City’s second purported federal question

was never presented to or passed upon in the State courts

below (Pet. App. 1a-20a; 21a-25a). Indeed, the City readily

and fatally concedes that the Decision of the New York

Court of Appeals “does not address the claim that the

State violated the Telecommunications Act by extending

its immunity to those carriers located on state owned [sic]

land to the clear disadvantage of other telecommunica-

tions carriers who are required to comply with local

regulations in order to operate in the City of New Ro-

chelle.” (Pet. at 3 [emphasis added]). Thus, this Court

lacks jurisdiction to review the Decision of the New York

Court of Appeals insofar as it relates to the second pur-

ported federal question. See, e.g., Street v. New York, 394

U.S. 576, 582 (1969); Cardinale, 394 U.S. at 438-439;

Bailey v. Anderson, 326 U.S. 203, 206-207 (1945); 28

U.S.C. § 1257.”

own land within its own boundaries without regard to its own zoning

regulations, not, as here, the State’s use of State-owned land within a

subdivision (i.e., the City) of that State’s boundaries.

* To the extent that the City attempts to rescue this issue by

responding that Supreme Court, County of Westchester held in its

November 13, 2001 Order that there is no “basis to find that either

DOT or Crown have violated the prohibition in the TCA against

discrimination among cellular service providers,” (Pet. App. at 29a),

(Continued on following page)

15

Although this purported issue was never presented to

or passed upon in the State courts below, in the event that

this Court nevertheless considers it, the City’s argument

does not raise an important question of federal law as it is

without merit.

The City’s argument on this purported federal ques-

tion is grounded in the anti-discrimination provision of

section 332(c)(7)(B)G)(D. Importantly, however, the City

lacks standing to assert any rights under section

332(c)(7B)GI) as it was enacted to protect telecommuni-

cations providers from unlawful denials of applications to

site a facility, not citizens, municipalities, or other non-

providers who are aggrieved by a determination.to permit

a facility. See Mason v. O’Brien, No. 1:01-CV-1556, 2002

U.S. Dist. LEXIS 19456, at *8-10 (N.D.N.Y. Sept. 30,

2002). Nor does this provision confer an implied right of

action upon non-providers. See id. at *10-16.

Regardless of the lack of standing under section

332(c7)(B)iXD, the City has made no effort to demon-

strate how the State has unreasonably discriminated

against any wireless carriers. This is because the State

has not favored one commercial carrier over another and

space is available on the State’s towers to all applicants on

a non-discriminatory basis. Indeed, the TSMA requires

that Crown “shall not unreasonably discriminate among

that Order is not the basis of the instant Petition. Indeed, although the

City served a notice of appeal from this Order, the City failed to perfect

the appeal. As a result, the appeal was dismissed by the Appellate

Division, Second Department on November 6, 2002. See supra at n.2.

Instead, the Order underlying the instant Petition is dated June 28,

2002. (Pet. App. 55a-57a). Critically, this Order is silent on this

purported federal question.

16

providers of functionally equivaient services. iSiviA

§ 11(A).”

In sum, even if the second purported federal question

had been properly presented to and decided by the State

courts below, the City’s underlying argument in support of

this issue is without merit. Thus, this issue is not an

important federal question either.

+

CONCLUSION

Accordingly, the Petition for a writ of certiorari should

be denied.

DATED: June 10, 2005

Albany, New York

Respectfully submitted,

JOHN T. MCMANUS

CRANE, PARENTE, CHERUBIN

& MURRAY

Attorneys for Respondent

Crown Communication

New York, Inc.

90 State Street

Albany, New York 12207

518.432.8000

518.432.0036 (facsimile)

Of counsel: JACQUELINE PHILLIPS MURRAY

” To the extent that the City complains that the Decision of the

New York Court of Appeals is contrary to the terms of the TSMA (Pet.

at 14), of course, this is not a federal question suitable for this Court's

review.