The Telecommunications Act of 1996 “TCA”: What Do You Say To A Telephone Company When It Wants To Install An Antennae In A City Park? “Hi, My Name Is NIMBY.”

Cities have authority to enter into licenses of city-owned property. But in 1990, a charter city passed a measure which amended the city charter to place limits on the use of city-owned property:  “No. . . structure costing more than $100,000 may be built on or in any park or beach or portion thereof . . . unless authorized by the affirmative votes of at least a majority of the total membership of the City Council and by the affirmative vote of at least a majority of the electors voting on such proposition at a general or special election at which such proposition is submitted.” After obtaining licenses, a telecommunications company commenced construction of an antennae in two city parks. When residents complained, the City Council told the company that voter approval was required. Instead of seeking voter approval, the company filed an action in federal court, and the district court determined the Telecommunications Act of 1996 [TCA; Pub. L. No. 104-104] preempted the city’s decision to require voter approval. In reversing, the Ninth Circuit found the 1990 measure was outside the TCA’s preemptive scope. (Omnipoint Communications, Inc. v. City of Huntington Beach  (Ninth Cir.; December 11, 2013) 738 F.3d 192.)