Firstenberg v. CITY OF SANTA FE, NM, 782 F. Supp. 2d 1262

Plaintiff Arthur Firstenberg, diagnosed with EMS, resides in Santa Fe and alleges RFEs from AT&T base stations worsen his condition.
AT&T operates multiple base stations in Santa Fe; in 2010-2011 the transition from 2G to 3G signals allegedly increased EMS symptoms for Firstenberg.
Plaintiff sought mandamus relief in state court to compel enforcement of the City’s Land Development Code (LDC) and to require AT&T to cease 3G transmissions or obtain new Special Exceptions.
The state court issued an Alternative Writ of Mandamus directing enforcement actions, and Plaintiff sought to substitute AT&T Mobility Services LLC for AT&T, claiming authority over 3G transmissions.
Defendants removed the case to federal court, and AT&T’s motions to dismiss were granted; the City’s motion to dismiss was subsequently granted as to mandamus relief.
Court held that the City lacks authority under its LDC to regulate RFEs and that the TCA preempts local regulation of RFEs, with the FCC's regulations controlling environmental/health effects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the TCA preempt local regulation of RFEs?	Firstenberg argues local actions to regulate RFEs are permissible under ADA and state law.	City argues TCA § 332(c)(7)(B)(iv) precludes regulation of RFEs and FCC regulates such emissions.	Yes; TCA preempts local regulation of RFEs.
Does the TCA supersede the ADA on disability-related regulation?	ADA requires protection for disabled individuals, necessitating regulation of RFEs by the City.	TCA preempts ADA-based regulation of environmental effects of RFEs; FCC oversees such matters.	Yes; TCA supersedes ADA in this context.
Has the City violated equal protection or due process by not regulating RFEs?	City’s failure to regulate RFEs discriminates against EMS-disabled individuals; procedural/due process arguments alleged.	Regulation of RFEs is preempted; actions are rational and не discriminate; equal protection does not apply.	No; claims fail under equal protection and due process.
Does the court have jurisdiction to grant mandamus relief and does the City have LDC authority to regulate base stations?	Mandamus is appropriate to compel enforcement of LDC provisions.	No jurisdiction for mandamus given lack of viable remedy; LDC does not authorize RFEs regulation.	Yes on jurisdiction for mandamus; City lacks authority to regulate transmissions under LDC.

Norton v. Village of Corrales, 103 F.3d 928 (10th Cir. 1996) (procedural due process and mandamus considerations in local government actions)
Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207 (10th Cir. 2000) (jurisdiction over ADA and due process claims in municipal decisions)
New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002) (RFEs environmental/health concerns cannot be sole basis for zoning denial under § 332(c)(7))
T-Mobile Northeast LLC v. Town of Ramapo, 701 F. Supp. 2d 446 (S.D.N.Y. 2009) (environmental effects of RFEs cannot justify local regulation when preempted)
Cellular Phone Taskforce v. FCC, 205 F.3d 96 (D.C. Cir. 2000) (FCC preemption of local RFEs regulation under TCA § 332(c)(7))
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (U.S. 1985) (rational basis review for disparate treatment of disabled persons)
Sierra Club-Black Hills Group v. United States Forest Service, 259 F.3d 1281 (10th Cir. 2001) (specific statutory schemes govern over general ones in preemption context)
Twombly v. Bell Atlantic Corp., 550 U.S. 544 (U.S. 2007) ( plausibility pleading standard)
Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (plausibility standard for claims after Twombly)
Safe Air For Everyone v. Idaho, 469 F. Supp. 2d 884 (D. Idaho 2006) (ADA not required to protect disabled from all effects of regulated activities)