Relocation of Cell Phone Antennas: Unconstitutionality of a Municipal Ordinance

On July 2, 2019, the Argentine Supreme Court ( the “CSJN” after its Spanish acronym) ruled in the “Telefónica Móviles Argentina S.A. - Telefónica Argentina S.A. c / Municipality of Gral. Güemes s / merely declaratory action of unconstitutionality " case, declaring the unconstitutionality of an article of a municipal ordinance that ordered the relocation outside the urban area within 60 days, of those cell phone antennas, whose location did not comply with the minimum distance of 500 meters from said area which were in the proximity of educational, sports or social facilities or any other place in which any activity that means the possibility of continuous exposure of people to the radiations of said antennas are carried out (the "Ordinance").

Background

Telefónica Móviles Argentina S.A. and Telefónica de Argentina S.A. filed a motion to declare the unconstitutionality the Ordinance  – accordingly to Section 322 of the National Civil and Commercial Procedural Code - against the Municipality of General Güemes of the Province of Salta (the “Municipality”).

The parties argued that the Municipality self-assigning environmental faculties which are actually linked to interjurisdictional matters of federal competence that are under the orbit of the National Communications Agency (“ENACOM”) and of the Secretariat of Communications of the Nation, and that the Ordinance violated the constitutional principles of national supremacy, joint and several liability, interprovincial trade, equality, right to exercise a lawful industry and reasonableness.

After the Federal Court of Appeals of Salta confirmed the judgment of first instance courts that dismissed the unconstitutionality motion filed by the plaintiff, said plaintiff filed an extraordinary federal appeal motion, which was denied; so they finally filed a claim with the CSJN, based on the following arguments:

- Giving prevalence to the Ordinance is in violation of the principle of national supremacy established in Section 31 of the Argentine Constitution (“AC”).

- Municipalities have police power to legislate on certain matters as long as they do not interfere with federal matters and purposes.

- The Municipality issues regulatory faculties related to interjurisdictional matters that, such as those related to telecommunications, are of federal competence.

- The antenna has the corresponding health qualification and complies with the standards approved by the World Health Organization.

- The plaintiff has the municipal authorization required for the location of the antenna which has been ordered to be removed.

The CSJN declared the federal extraordinary appeal motion admissible and ruled that the alleged interference of the Ordinance was not constitutionally protected under the legitimate exercise of municipal police power, but rather implied an interference in regulatory aspects that are typical of the federal authorities competence in the matter; therefore, must be declared unconstitutional under the provisions of Section 75, subsection 13, of the NC.

The majority votes (Justices Carlos Rosenkrantz, Elena Highton de Nolasco and Ricardo Lorenzetti)

1. The grounds in matters of competence and jurisdiction:

- The “Commerce Clause” of Section 75, subsection 13 of the AC includes interstate communications, which are subject to the jurisdiction of the Argentine Congress, since they constitute the exercise of commerce.

- In accordance with Section 42 of the AC, the legislation will establish the regulatory frameworks for public services of national competence, with the regulation of the telephone service being delegated by the provinces to the Nation, which they are forbidden to exercise.

- Provinces and municipalities must exercise their powers without altering the material, economic, legal or any other conditions established by national legislation when it provides that provincial and municipal authorities will retain police and taxation powers over national utility establishments but only as long as they do not interfere in the fulfillment of their national purposes (Section 75, Subsection 30 AC).

- Municipal autonomy cannot be understood as an excess for municipalities to interfere in the development of national services since they must exercise those regulatory powers in a harmonious way with the powers of the federal government.

- The municipalities do not have more extensive power than the provinces because they are political entities with powers whose content and scope depends on the provincial constitutions (article 123 of the AC) and the latter cannot grant rights or powers that the provinces do not have.

- On these grounds, the CSJN has established that the National State has the necessary attributions for the regulation of the services that exceed the local scope including those "aspects of the internal activities" susceptible of undermining or obstructing said services.

- The CSJN has also pointed out that the local police power should not extend to the regulatory aspects of national competence. The antenna installations may not be modified without prior authorization from the federal authority, since this affects the design of the telecommunications network.

- The municipal competence regarding the authorization of civil works that serves as a support structure for antennas is limited in the fact that said competence cannot be extended to the point of regulating the technical aspects of the telephone service. The regulation of these aspects is the responsibility of the federal authorities and, therefore, is found, mainly, in National Telecommunications Law No. 19,798. These include the design by the national authorities of the interjurisdictional telecommunications network that allows the effective provision of the mobile telephony service.

- By unilaterally arranging the relocation of the antennas that are operating; therefore, modifying the cellular telephone network that is already installed, the Ordinance is given an attribution that the National Telecommunications Law No. 19,798 grants to the federal enforcement authority.

2. Regarding facts and the grounds of the Ordinance:

- That for the organization and operation of telecommunications, national competences are governed by Information and Communications Technologies Law No. 27,078, and by National Law of Telecommunications No. 19,798.

- That the Information and Communications Technologies Law No. 27.078 responds to the need for national telecommunications policies to be uniform throughout the territory of the Nation and provides that the national, provincial authorities of the City of Buenos Aires and municipal will coordinate the necessary actions to achieve the deployment of the telecommunications networks used for the provision of ICT services.

- The national authority duly approved the installation of the antennas, in accordance with Telecommunications Law No. 19,798, which provides that no means or telecommunications systems can be installed or expanded without the prior corresponding national authorization.

- That according to the National Telecommunications Law No. 19,798, the owners of the territorial jurisdiction are competent to authorize the location of the facilities and networks, but that it is the authorities that have specific competence in relation to the modification or transfer of the facilities in operation (a transfer that the Ordinance intends to regulate by itself).

- That any order to relocate an installed antenna necessarily affects the design and structure of the telecommunications system, since the location of the antennas responds to technical criteria for geographical coverage needs, the feasibility of providing the service to a determined number of users and the possibility of interconnection with other stations.

- - The telephone service is widely used by the population, and to such end it is necessary to install antennas, which need to be economically viable to scale as they  extend over wide regions. Therefore, if the company has to negotiate municipality by municipality the installation conditions, not only would it increase the transaction costs, but it would make it impossible to provide a regional service with different local regulations, which would harm consumers, who would not have access to telephony or would have to pay more expensive services.

- No minimum demonstration of the damage caused by the radiation of the antennas was verified in the file, which in health matters would imply the application of the precautionary principle.

- In accordance with the protocol approved by CNC Resolution No. 3690/2004, the mobile phone antennas comply with safety standards for non-ionizing radiation.

- The technical expert acting in the file clarified that once the antenna was removed, those who use their cell phone in the area would be exposed to a higher level of radiation from their own cell phone, since it should increase its power to be able to communicate with another antenna of the network that replaces the one removed and that is more distant.

3. Reasoning of the majority:

In response to the abovementioned grounds, the CSJN understood that the Ordinance, as soon as it orders the removal of already installed antennas - altering the design of the cellular telephone network - interferes with a regulatory aspect of exclusive national competence, as it is to expand, modify and transfer the different means or systems of telecommunications.

Consequently, it determined that the Municipality has unduly invasive powers that were delegated by the provinces to the Argentine Congress. Therefore, Section 17 of the Ordinance (insofar as it orders the transfer within 60 days of the operating antennas already installed in restricted areas, that is, at a distance less than 500 meters from the urban area) is unconstitutional.

The dissenting votes (Justices Juan Carlos Maqueda and Horacio Rosatti)

1. The grounds in matters of competence and jurisdiction:

- According to the AC, the "rule" is that everything that is not expressly assigned by the provinces to the federal government is retained in those (Section 121 of the AC).

- In environmental matters, under Section 41 of the AC, the National State regulates the "minimum levels of protection" and the Member States the "complementary levels", establishing the right to enjoy "a healthy, balanced environment, suitable for development, human and for productive activities to meet present needs without compromising those of future generations", also imposing" the duty to preserve it ".

- The 1994 constitutional amendment introduces the concept of municipal autonomy in Section 123.

- In the case law of the CSJN, from different perspectives, the decision of the constitutional jurisdiction to make sense of the content of the constitutional political agreements arising from the 1994 constitutional amendment is expressed.

- That the legal system of the antennas and the Ordinance combine at least three different regulatory areas: i) the relative to an adequate and efficient provision of the service, of federal competence; ii) the environment and public health matters, attribution of a concurrent nature between the federation, the provinces and the municipalities; and iii) what refers to territorial planning, mainly of local concern.

- Although neither the provinces nor the municipalities can regulate the activity subject, exclusively, to federal regulation, this does not remove local powers in the exercise of their police power within the limits set by the AC.

- They do not constitute real and effective obstacles to the achievement of invalidating national utility purposes of local norms: i) the mere economic impact, taken in isolation, that local norms entail on national operators; ii) the regulations that are peripheral and extrinsic to the core or substance of the federal regulation in question; iii) the provisions that do not imply a sine die interruption or entail the degradation of the activity of national jurisdiction, that is - in regard to the present conflict - the provision of the telecommunications service.

- It is typical of federalism that certain issues are regulated at the same time by rules from different levels of authority, but this does not necessarily mean an invasion of powers.

2. Regarding facts and the basis of the Ordinance:

- The appealing companies did not duly prove that the municipal regulations depart from or contradict the national legislation, nor that it detracted from Law No. 25,675 - or other federal provisions - or the provincial environmental protection regulation and does not expose any specific criticism for objecting to the powers of the Municipality.

- The appealing companies could not prove that the modification of the location of their antennas will damage the provision of the service, as economic and / or operational factors are the only disorders that could cause the relocation of the antennas.

3. Reasoning for dissent:

As the Ordinance creates the need to make new adjustments to the activity of the appellants, but does not imply an impact on the provision of the telecommunications service ─ nor does it imply  an invasion of competencies ─ the appealed judgment should be confirmed.