* Note Editor, Boston College Environmental Affairs Law Review, 2002–03. I would like to thank my lovely wife for inhuman patience and unflagging support; my family and friends for more of the same; my indefatigable editors for thoughtful review, particularly Benjamin Krass; and John Coltrane, whose Complete 1961 Village Vanguard Recordings (Impulse 1997) was in near-constant rotation during authorship of this Note.
1 FERC v. Mississippi, 456 U.S. 742, 767 n.30 (1982) (Blackmun, J.).
2 See Nevins v. N.H. Dep’t of Res. & Econ. Dev., 792 A.2d 388 (N.H. 2002). The Kearsarge case is anomalous in that the New Hampshire Department of Resources and Economic Development gave express permission to U.S. Cellular to site the tower. Id. at 390–91. The local response to such cell tower siting, however, was anything but anomalous. Amanda Parry, Court to Hear Cell Tower Arguments, Concord Monitor, Nov. 9, 2001, at A4.
3 Alex Beam, Cellular Towers in the Wild Send Bad Signal, Boston Globe, Aug. 30, 2000, at F1.
4 David W. Hughes, When NIMBYs Attack: The Heights to Which Communities Will Climb to Prevent the Siting of Wireless Towers, 23 Iowa J. Corp. L. 469, 470–71, 482–83 (1998).
5 143 Cong. Rec. S11,402 (daily ed. Oct. 30, 1997).
6 Telecommunications Act of 1996, 47 U.S.C.  151–613 (2001).
7 Id.  332(c)(7).
8 Id.  332(c)(7)(A).
9 Id.  332(c)(7)(B)(i)–(v).
10 Judge Niemeyer concluded that  332(c)(7)(B)(iii) of the TCA violates the Tenth Amendment. Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 705 (4th Cir. 2000) (Niemeyer, J.). His view did not command a majority of the three-judge panel; Judge Widener did not reach the constitutional issue, and Judge King expressly dissented from Judge Niemeyer’s constitutional argument. Id. at 691–92 (per curium).
11 U.S. Const. amend. X. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
12 505 U.S. 144, 187–88 (1992).
13 47 U.S.C.  151–613.
14 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375 (1985). In addressing the FCC’s power to preempt state authority, the Supreme Court noted:
The Communications Act [of 1934] not only establishes dual state and federal regulation of telephone service; it also recognizes that jurisdictional tensions may arise as a result of the fact that interstate and intrastate service are provided by a single integrated system . . . [through a jurisdictional separations process], it facilitates the creation or recognition of distinct spheres of regulation.
Id.
15 Cellular Telecomms. & Internet Ass’n, Semi-Annual Wireless Industry Survey Results, Jan. 1985–June 2001, at http://www.wow-com.com/pdf/wireless_survey_2000a.pdf (last visited Jan. 29, 2002) [hereinafter CTIA Survey Results]. This includes not only cellular, but Personal Cellular Service, explained infra at text accompanying notes 22–25.
16 CTIA Survey Results, supra note 15. As one might expect, the growth has only accelerated since the enactment of the TCA; as of June 2001, subscribers approached the 120 million mark, and cell sites topped the 114,000 mark. Id.
17 Federal Communications Commission, Wireless Telecommunications Bureau, Fact Sheet: New National Wireless Tower Siting Policies 8 (Apr. 1996), http://ireless.fcc.gov/siting/fact1.pdf (last visited Jan. 29, 2002) [hereinafter FCC FACT SHEET #1].
18 Id. Cellular transmits in the 824–849 and 869–894 MHz range. Id.
19 Id.
20 Id. at 11.
21 Id.
22 Wireless Telecomms. Bureau, Fed. Communications Comm’n, Fact Sheet #2: National Wireless Facilities Siting Policies 6 (Sept. 1996), http://wireless.cc.gov/ iting/fact2.pdf (last visited Jan. 29, 2002) [hereinafter FCC Fact Sheet #2]; see also In re Amendment of the Commission’s Rules to Establish New Personal Communications Services, 8 F.C.C.R. 7700, 7710 (1993) (second report and order).
23 FCC Fact Sheet #1, supra note 17, at 9. PCS systems transmit in the 1850–1990 MHz range. Id.
24 See FCC Fact Sheet #2, supra note 22, at 5–6.
25 See id. at 6.
26 See Telecommunications Act of 1996, 47 U.S.C.  332(c)(7) (2001).
27 H.R. Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61.
28 H.R. Conf. Rep. No. 104-458, at 1 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.
29 Id. at 207, reprinted in 1996 U.S.C.C.A.N. 124, 222.
30 Id. at 207–08, reprinted in 1996 U.S.C.C.A.N. 124, 222.
31 Id., reprinted in 1996 U.S.C.C.A.N. 124, 222. The Committee emphasized that “[a]ny pending [FCC] rulemaking concerning the preemption of local zoning authority over the placement, construction or modification of [commercial mobile service] facilities should be terminated.” Id. at 207–08, reprinted in 1996 U.S.C.C.A.N. 124, 222.
32 Telecommunications Act of 1996, 47 U.S.C.  332(c)(7) (2001).
33 Id.  332(c)(7)(A).
34 Id.  332(c)(7)(B)(i)–(v).
35 Id.  332(c)(7)(B)(i)(I).
36 Id.  332(c)(7)(B)(i)(II).
37 Id.  332(c)(7)(B)(ii). This provision reads in full:
A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
Id.
38 47 U.S.C.  332(c)(7)(B)(iii). This provision reads in full: “Any decision by a State or local government or instrumentality thereof to deny a request to place, construct or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” Id.
39 Id.  332(c)(7)(B)(iv). This provision reads in full:
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.
Id.
40 Id.  332(c)(7)(B)(v). This provision reads in full:
Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.
Id.
41 See, e.g., Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999).
42 Id.
43 47 U.S.C.  332(c)(7)(B)(iii).
44 Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 705 (4th Cir. 2000) (Niemeyer, J.).
45 Id. at 691–92 (per curium).
46 Id. at 691 (per curium).
47 Id. (per curium)
48 Id. (per curium)
49 Id. at 691–92 (per curium).
50 Cellular Phone Taskforce v. FCC, 205 F.3d 82, 96 (2d Cir. 2000), cert. denied, 531 U.S. 1070 (2001) (mem.).
51 Id.
52 Id.; see 47 U.S.C.  332(c)(7)(B)(iv) (2001); see also Southwestern Bell Wireless v. Johnson County Bd. of Comm’rs, 199 F.3d 1185, 1193–94 (10th Cir. 1999) (also rejecting a Tenth Amendment challenge to federal preemption of local regulation regarding radio frequency emissions).
53 Cellular Phone Taskforce v. FCC, 531 U.S. 1070 (2001) (mem.), denying cert. to 205 F.3d 82 (2d Cir. 2000).
54 Brief of Amici Curiae Patrick J. Leahy et al. at 3, 9-10, Cellular Phone Taskforce v. FCC, 531 U.S. 1070 (1998) (No. 00-393), http://leahy.senate.gov/press/200012/booklet. pdf (last visited Mar. 19, 2002) (on file with author).
55 See infra note 202.
56 See infra Part IV; see also Jack M. Beermann & Clive B. Jacques, Section 1983’s “and Laws” Clause Run Amok: Civil Rights Attorney’s Fees in Cellular Facilities Siting Disputes, 81 B.U. L. REV. 735, 773–79 (2001) (arguing that Judge Niemeyer’s interpretation of Tenth Amendment jurisprudence is correct and that select provisions of  332 are unconstitutional).
57 U.S. Const. art. I,  8, cl. 3.
58 Wickard v. Filburn, 317 U.S. 111, 125 (1942) (upholding Congress’s ability under the Commerce Clause power to regulate homegrown and consumed wheat because of the aggregate effect such activity would have on national wheat markets); cf. United States v. Lopez, 514 U.S. 549, 567 (1995) (holding as unconstitutional Congress’s attempt to regulate simple possession of firearms in wholly intrastate school zones).
59 Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992).
60 U.S. Const. amend. X.
61 New York, 505 U.S. at 156–57; see also Printz, 521 U.S. at 923–24, 923 n.13 (suggesting that the term “Proper” in the Necessary and Proper Clause provides an additional textual barrier to powers delegated to Congress). The Necessary and Proper Clause provides Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const. art. I,  1, cl. 18.
62 See, e.g., New York, 505 U.S. at 156–57.
63 Note, however, that the Court has read broad principles of state sovereign immunity into the Eleventh Amendment’s bare textual prohibition of a state citizen’s right to sue a different state, Hans v. Louisiana, 134 U.S. 1, 10–13, 21 (1890), and held that Fourteenth Amendment equal protection principles apply against the federal government through the Fifth Amendment despite the absence of any “equal protection” clause in the latter, Bolling v. Sharpe, 347 U.S. 497, 498–500 (1954).
64 United States v. Darby, 312 U.S. 100, 122–23 (1941) (establishing the constitutionality of the Fair Labor Standards Act of 1938, 29 U.S.C.  201).
65 Id. at 119–20.
66 Id. at 123–24.
67 See, e.g., New York, 505 U.S. 144; Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); Darby, 312 U.S. 100.
68 United States v. Bass, 404 U.S. 336, 337–39 (1971). A similar gun control act thought to be a permissible exercise of power under the Commerce Clause was assessed and rejected by the court in United States v. Lopez, 514 U.S. 549 (1995). See U.S. Const. art. I,  8, cl. 3.
69 404 U.S. at 351. As recently as 2001, the same analysis was used to avoid a head-on collision between the Commerce Clause and federalism principles. See Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (“Permitting [the U.S. Army Corps to claim jurisdiction over wholly intrastate, non-navigable waters] would result in a significant impingement of the States’ traditional and primary power over land and water use . . . . We thus read the statute as written to avoid the significant constitutional and federalism questions.”).
70 Bass, 404 U.S. at 339.
71 Id. at 349.
72 See generally Fry v. United States, 421 U.S. 542 (1975).
73 See id. at 545. The statute in question was the Economic Stabilization Act of 1970, a temporary grant of authority to the President to issue orders and regulations restricting wages throughout the economy. See id. at 543–45.
74 Id. at 548.
75 Id.
76 Id. at 547 n.7 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)) (internal citation omitted).
77 See generally Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
78 New York v. United States, 505 U.S. 144, 160 (1992) (O’Connor, J.).
79 Nat’l League of Cities, 426 U.S. at 855.
80 Id. Then-Justice Rehnquist characterized this as consistent with Fry because the provision under consideration there was a strictly temporary measure intended to address a serious national emergency, and neither burdened state coffers nor supplanted states’ decisions about how their government should be structured. Id. at 853. Justice Rehnquist so concluded despite the fact that he had dissented from Fry on the grounds that the Commerce Clause power did not reach as broadly as the majority suggested, and neither was the national economic situation so urgent as to allow Congress to intrude on state sovereignty through other Constitutional means. See Fry v. United States, 421 U.S. 545, 559 (1975) (Rehnquist, J., dissenting).
81 Nat’l League of Cities, 426 U.S. at 855.
82 Id. at 854.
83 Id. at 855; see Maryland v. Wirtz, 392 U.S. 183, 198 (1968), overruled by Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (“The state can no more deny the power if its exercise has been authorized by Congress than can an individual.”) (quoting United States v. California, 297 U.S. 175, 185 (1936)).
84 Equal Employment Opportunity Comm’n v. Wyoming, 460 U.S. 226, 243–44 (1983); FERC v. Mississippi, 456 U.S. 742, 758, 760–61, 764–66, 771 (1982); Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 304–05 (1981).
85 FERC, 456 U.S. 742; Hodel, 452 U.S. 264. The third case upheld the Age Discrimination in Employment Act, finding that federal minimum standards governing mandatory retirement of state employees did not directly impair the state’s ability to structure integral operations in areas of traditional governmental functions, nor did it impose serious financial burdens on the state. Wyoming, 460 U.S. at 238, 240–41.
86 452 U.S. at 268.
87 Id.
88 Id. at 283–84.
89 Id. at 284.
90 Id.
91 Id. at 275–76. For the proposition that land use regulation rests within traditional state police power, see Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974); Berman v. Parker, 348 U.S. 26, 31–33 (1954); and Euclid v. Ambler Realty Co., 272 U.S. 365, 392–94 (1926).
92 Hodel, 452 U.S. at 286.
93 Id. at 287–88 (citation and quotations omitted).
94 Id. at 288.
95 Id.
96 Id.
97 Id. at 290. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
U.S. Const. art. VI, cl. 2.
98 Hodel, 452 U.S. at 290–91.
99 Id. at 289 n.30.
100 456 U.S. at 760–61, 764–66, 771.
101 Id. at 745–46.
102 Id. at 759.
103 Id. at 751.
104 Id. at 747.
105 Id. at 748–49.
106 FERC, 456 U.S. at 749–50 (emphasis added). Similarly, despite the imposition of reporting deadlines, PURPA provided no penalties to be levied against states that failed to meet these deadlines, and expressly stated that states were free to determine that “it is not appropriate to implement any such standard.” Id. at 750.
107 Id. at 759.
108 Id. (alteration in original).
109 Id. Recall, however, that National League of Cities dealt with a federal statute that directly affected both private employers and state employers equally, whereas this provision of PURPA addressed how states regulate private parties. Id.
110 Id. at 760.
111 U.S. Const. art. VI, cl. 2; see Testa v. Katt, 330 U.S. 386, 393 (1947).
112 FERC, 456 U.S. at 760.
113 Id. at 769.
114 Id. at 764.
115 Id. at 769.
116 Id. at 766.
117 See id.
118 See FERC, 466 U.S. at 771.
119 Id.
120 Id. at 775 (O’Connor, J., dissenting).
121 See id. at 775 n.1 (O’Connor, J., dissenting).
122 Id. at 778–80 (O’Connor, J., dissenting).
123 Id. at 781 (O’Connor, J., dissenting). As an example of such “absurdity,” she noted that under the conditional preemption analysis, National League of Cities was wrongly decided because the state could have opted out of paying its employees by simply closing various branches of state government. Id. at 781–82 (O’Connor, J., dissenting).
124 FERC, 466 U.S. at 783–84 (O’Connor, J., dissenting).
125 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530 (1985).
126 Id.
127 Id. at 538–39 (“We find it difficult, if not impossible, to identify an organizing principle. . . . The constitutional distinction between licensing drivers and regulating traffic, for example, or between operating a highway authority and operating a mental health facility, is elusive at best.”).
128 Id. at 546–47.
129 Id. at 549 (citing Equal Employment Opportunity Comm’n v. Wyoming, 460 U.S. 226, 269 (1983) (Powell, J., dissenting)).
130 Id. at 556.
131 See Garcia, 469 U.S. at 556.
132 Id. at 554 (emphasis added).
133 Id. at 580 (Rehnquist, J., dissenting).
134 See id. at 554.
135 South Carolina v. Baker, 485 U.S. 505, 512–13 (1988).
136 See id. at 514.
137 New York v. United States, 505 U.S. 144, 159 (1992).
138 Id. at 177.
139 Id. at 156–57 (“The Tenth Amendment [like the Commerce Clause] restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology.”).
140 Id. at 159 (emphasis added). This theory of judicial oversight of the federalist structure is based not only on Marbury v. Madison’s general proposition that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” but also from the majority’s distrust of Congress’s ability to draw the line appropriately—a position clearly articulated by the dissent of Justice O’Connor in Garcia: “With the abandonment of National League of Cities, all that stands between the remaining essentials of state sovereignty and Congress is the latter’s underdeveloped capacity for self-restraint.” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 588 (1985) (O’Connor, J., dissenting); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
141 New York, 505 U.S. at 150.
142 Id. at 150–52.
143 Id. at 171–77.
144 Id. at 160. The Fair Labor Standards Act of 1938 (FLSA), which, among other things, imposed a minimum wage requirement on private industry as well as state schools and hospitals, is one such example. 29 U.S.C.  201–219 (2000). As noted in Part III.B supra, Congress’s ability to regulate states with such “generally applicable” laws has been the subject of much debate among members of the Court. See Maryland v. Wirtz, 392 U.S. 183 (1968) (upholding the FLSA), overruled by National League of Cities v. Usery, 426 U.S. 833 (1976) (striking down the FLSA as applied to state employers), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (reinstating the FLSA as applied to state employers). The Court simply noted the inconsistency of this line of cases without further discussion. See New York, 505 U.S. at 160.
145 New York, 505 U.S. at 161.
146 Id. at 160–61. The majority’s failure to explain the basis for this distinction did not go unnoticed by Justice White, who noted in a vigorous dissent that the Court had never decided any Tenth Amendment case on this ground. Id. at 201 (White, J., dissenting) (“[T]he Court makes no effort to explain why this purported distinction should affect the analysis of Congress’ power under general principles of federalism and the Tenth Amendment. The distinction, facilely thrown out, is not based on any defensible theory.”). Implicit throughout the majority opinion, however, is the theory that unlike direct regulation of states or private parties, accountability concerns are not raised unless Congress acts on private parties through the states. See id. at 166–69; see also infra text accompanying notes 256–260.
147 New York, 505 U.S. at 161.
148 See id. at 154, 160.
149 Garcia, 469 U.S. at 546–47.
150 See New York, 505 U.S. at 151, 154.
151 Id. at 161.
152 Id. (quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981)).
153 New York, 505 U.S. at 161–62 (quoting FERC v. Mississippi, 456 U.S. 742, 764–65 (1982)). This implicit recognition of FERC’s conditional preemption analysis was undercut, however, by the later reasoning of the Court when addressing the Waste Policy Act itself. See infra text accompanying notes 233–241.
154 New York, 505 U.S. at 163–66. The breadth of the historical analysis is beyond the scope of this Note, which deals narrowly with the principles announced and their application to the TCA.
155 Id. at 162–66.
156 See id. at 163–64; see also Gregory v. Ashcroft, 501 U.S. 452, 457–59 (1991) (explaining that the chief purpose of the federalist system’s establishment of twin sovereigns exercising separate authority directly on the citizenry was to create a mutual restraint on tyranny).
157 New York, 505 U.S. at 168–69.
158 See New York, 505 U.S. at 173. The Spending Clause provides: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .” U.S. Const. art. I,  8, cl. 1. For the current Spending Clause doctrinal framework, see generally South Dakota v. Dole, 483 U.S. 203 (1987).
159 New York, 505 U.S. at 167–68. This, of course, assumes that the field is preemptible—the crucial question that is yet to be openly decided. See infra text accompanying notes 242–251.
160 New York, 505 U.S. at 168.
161 Id.
162 Id.
163 Id. at 169.
164 Id. at 152–53.
165 Id. at 173.
166 New York, 505 U.S. at 153.
167 Id. at 174.
168 Id.
169 Id.
170 Id. at 153.
171 Id. at 175.
172 New York, 505 U.S. at 175–76.
173 Id. at 176.
174 Id. at 176–77.
175 See id. at 187.
176 Id.
177 FERC v. Mississippi, 456 U.S. 742, 766 n.29 (1981).
178 Id. at 767 n.30.
179 See New York, 505 U.S. at 159–60.
180 Id.
181 Id. at 188.
182 Id.
183 Printz v. United States, 521 U.S. 898, 935 (1997).
184 Id. at 902–04.
185 See id. at 902. The statutorily-imposed deadline for this nationwide system was November 30, 1998; Printz was argued in December of 1996 and decided on June 27, 1997. Id. Therefore, it would not have been long before the issue became moot, but the Court apparently saw—and seized—the opportunity to extend New York’s reasoning. See New York, 505 U.S. at 159.
186 Printz, 521 U.S. at 925–26.
187 Id. at 931–32.
188 Id. at 932–33 (citation and quotations omitted).
189 Reno v. Condon, 528 U.S. 141, 143 (2000).
190 Id. at 146.
191 Id. at 150–51.
192 See New York v. United States, 505 U.S. 144, 211 (1992) (Stevens, J., dissenting).
193 See id. at 159.
194 See id. at 157.
195 See id. at 211 (Stevens, J., dissenting).
196 See Printz v. United States, 521 U.S. 898, 923–24 (1997).
197 Id. (Scalia, J.) (noting that the Court could move in this direction, or simply read the Necessary and Proper Clause together with the Tenth Amendment for extra support).
198 Id. at 956–58 (1997) (Stevens, J., dissenting) (arguing that members of Congress are unlikely to ignore the sovereignty concerns of their constituents).
199 See Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 705, 711–12 (4th Cir. 2000) (wherein Judges Niemeyer and King, while disagreeing on the Tenth Amendment issue, agreed that this field is a proper object of congressional regulation under the Commerce Clause).
200 See New York v. United States, 505 U.S. 144, 161–62, 188 (1992).
201 See H.R. Conf. Rep. No. 104-458, at 207 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.
202 In fact, one provision of  332(c)(7) is a valid example of such preemption. The blanket prohibition on state or local regulation of cell towers on the basis of environmental effects of radio frequency emissions is an unexceptional exercise of Congress’s preemption power, as it requires no action on the part of state or local governments; it simply prevents regulation in that area. See Telecommunications Act of 1996, 47 U.S.C.  332(c)(7)(B)(iv) (2001); see also New York, 505 U.S. at 168; Cellular Phone Taskforce v. FCC, 205 F.3d 82, 96 (2d Cir. 2000), cert. denied, 531 U.S. 1070 (2001); Southwestern Bell Wireless v. Johnson County Bd. of Comm’rs, 199 F.3d 1185, 1193–94 (10th Cir. 1999).
203 See H.R. Conf. Rep. No. 104-458, at 208, reprinted in 1996 U.S.C.C.A.N. 124, 222.
204 See 47 U.S.C.  332(c)(7).
205 See Reno v. Condon, 528 U.S. 141, 150 (2000); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530 (1985).
206 See South Carolina v. Baker, 485 U.S. 505, 514 (1988).
207 47 U.S.C.  332(c)(7).
208 See New York v. United States, 505 U.S. 144, 161 (1992).
209 47 U.S.C.  332(c)(7)(B)(iii).
210 New York, 505 U.S. at 162.
211 See, e.g., Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 699 (4th Cir. 2000).
212 See 47 U.S.C.  332(c)(7)(B)(iii).
213 See id.
214 Printz v. United States, 521 U.S. 898, 932–33 (1997); New York, 505 U.S. at 187.
215 Printz, 521 U.S. at 932–33; New York, 505 U.S. at 187.
216 Note the explosion in growth of tower sitings since the TCA’s enactment: in the twelve years prior to the TCA, 25,000 cell towers had been sited. An additional 89,000 towers were sited in just five years following its enactment. CTIA Survey Results, supra note 15.
217 See New York, 505 U.S. at 168–69.
218 Id. at 169.
219 Id. at 188.
220 See id. at 167–68.
221 See id. at 167–69.
222 See id. at 169.
223 New York, 505 U.S. at 182–83.
224 See id. at 173–74.
225 Id. at 167.
226 FERC v. Mississippi, 456 U.S. 742, 769 (1982).
227 Id. at 766.
228 See Telecommunications Act of 1996, 47 U.S.C.  332(c)(7) (2001); New York, 505 U.S. at 174.
229 FERC, 456 U.S. at 766; see 47 U.S.C.  332(c)(7)(A) (“Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”).
230 New York, 505 U.S. at 175. One commentator has suggested that FERC is simply “no longer good law . . . [because] [t]he Court viewed FERC as a case of first impression, and it rejected Justice O’Connor’s Tenth Amendment commandeering analysis, which she offered for the first time in her dissent in that case, and which a majority later accepted in New York v. United States.” Beermann & Jacques, supra note 56, at 782–84. This argument, however, ignores the fact that the New York Court approvingly cited FERC; this Note posits that FERC and the concept of conditional preemption remain viable, but only in certain fields of regulation to be determined by the Court.
231 See FERC, 456 U.S. at 766.
232 Id. at 770 n.32. (“[Today’s holding] does not suggest that the Federal Government may impose conditions on state activities in fields that are not pre-emptible.”) To the extent that Hodel contained the same broad dicta regarding conditional preemption, it appears similarly open to attack; recall, however, that Hodel addressed not congressional control of states’ regulation of private parties, but rather direct congressional regulation of private parties which displaced existing state regulation—an acceptable exercise of federal preemption. 452 U.S. 264, 288–89 (1981).
233 New York, 505 U.S. at 173–74.
234 Id.
235 Id. at 174.
236 Id. (emphasis added).
237 See generally Telecommunications Act of 1996, 47 U.S.C.  332(c)(7) (2001).
238 See generally id.
239 New York, 505 U.S. at 174. See generally 47 U.S.C.  332(c)(7). The freedom for states to concurrently regulate private parties where federal regulation has not preempted them is also what saved the Surface Mining Act in Hodel. 452 U.S. 264, 289 (1981).
240 FERC v. Mississippi, 456 U.S. 742, 781–82 (1982) (O’Connor, J., dissenting); see New York, 505 U.S. at 174.
241 See FERC, 456 U.S. at 766 (recognizing as difficult, but upholding as constitutional, the choice presented to states by Congress of “either abandoning regulation of the field altogether or considering the federal standards.”).
242 See id. at 923. But see id. at 936–37 (Thomas, J., concurring) (agreeing that the Tenth Amendment barred the congressional action at issue but suggesting in addition that the Commerce Clause power does not extend to the wholly intrastate transfer of firearms).
243 See, e.g., New York, 505 U.S. at 173–74 (conceding that private activity may be regulated under the Commerce Clause as long as it does not intrude on the Tenth Amendment’s protection of state sovereignty); see also supra text accompanying notes 135–138.
244 See FERC, 456 U.S. at 766.
245 Beermann & Jacques, supra note 56, at 784. See generally Printz, 521 U.S. 898 (declining, sub silentio, to apply New York’s “choice” framework to the Court’s analysis of the Brady Act).
246 Printz, 521 U.S. at 932–33.
247 See id. at 935.
248 See New York, 505 U.S. at 174. See generally Printz, 521 U.S. 898.
249 See generally Printz, 521 U.S. 898.
250 New York, 505 U.S. at 176.
251 See Solid Waste Agency of v. United States Army Corps of Eng’rs, 531 U.S. 159, 173–74 (2001). It is hard to view the plain language of the “substantial evidence” requirement as anything other than simple commandeering—though some circuit courts have read this requirement as requiring “substantial evidence” under the local zoning authority’s own ordinances. See Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 708 (2d Cir. 2000). But reading 332(c)(7)’s substantive provisions as requiring no more than what local ordinances already provide would render the Section entirely redundant at best and self-contradictory at worst, given that subparagraph B lists specific “limitations” on state and local zoning authority. Telecommunications Act of 1996, 47 U.S.C.  332(c)(7)(B) (2001).
252 Nat’l League of Cities v. Usery, 426 U.S. 833, 855 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
253 New York, 505 U.S. at 159; Garcia, 469 U.S. at 557.
254 New York, 505 U.S. at 159.
255 See id. at 174; see also Garcia, 469 U.S. at 580 (Rehnquist, J., dissenting). See generally Printz v. United States, 521 U.S. 898 (1997). Though New York’s treatment of the “access” provisions casts doubt on the validity of the conditional preemption analysis, conditional preemption may not be considered commandeering if states are given the choice of abandoning a field that does not fall within their traditional police power. This approach reconciles New York and FERC if one assumes that the utilities regulation addressed in FERC is not a traditional state function. See New York, 505 U.S. at 174; FERC v. Mississippi, 456 U.S. 742, 764–66 (1982).
256 Reno v. Condon, 528 U.S. 141, 150 (2000); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 533 (1985).
257 Condon, 528 U.S. at 151.
258 See id.; New York, 505 U.S. at 168–69.
259 New York, 505 U.S. at 168.
260 Printz, 521 U.S. at 932–33; New York, 505 U.S. at 187.