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ASSISTANT TTORNEY GENMI-

March 12,2015
The Honorable Herb McMillan
164 House Office Building
Annapolis, Maryland 21 40I -199 |
Dear Delegate McMillan:

You have asked for advice concerning House Bill 727, "Anne Arundel County Board of
Education - Wireless Telecommunications Towers - Moratorium and Report." Specifically, you
have asked whether the State may place a moratorium on the construction of new cell towers on
public school property in Anne Arundel County. It is my view that the moratorium in the bill would
be permissible.

in its first reader version, would provide that its purpose is "to ensure the
appropriate use of property granted, conveyed, devised, or bequeathed for the use of Anne Arundel
County public school system." The bill further states that:
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Unless all necessary permits for construction have been issued before the
effective date of this Act, aperson may not constr+rct a wireless teleesmmunicatisns
tower on the grounds of a public school in Anne Arundel County from the effective
date of this Act to June 30, 2076, both inclusive.

This provision, together with Section 2 of the bill, which provides that the Act may not impair "a
presently existing obligation or contract right," ensures that the operation of the bill will not impair
contracts in violation of the Contract Clause of the United States Constitution.
The question that remains is whether the bill would be preempted by provisions of federal
law restricting the ability of the State to prohibit the construction of cell phone towers, V/e have
previously concluded that these limitations do not apply to the deeision of a State or local entity, in
its proprietary capacity, to refuse to lease its property to a provider of wireless telecommunications,
See Letter to the Honorable Robert A, Zirkin dated May 30,2007 citing Sprint Spectrum v. Mills,
283 F.3d 404 (2d Cir. 2002); Omnipoint Communications Enterprises v. Township of Nether
Providence,232F . Supp. 2d 430 (E.D. Pa. 2002) (holding that such a decision is neither zoning nor
regulation subject to 47 U.S.C. $ 332(cX7)): My review of the law reveals no cases that would alter
that conclusion. As a result, it is my view that a one year delay while the propriety of such action
is considered would not be preempted.

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The Honorable Herb McMillan

March 12,2015
Page 2

Sincerely,
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M. Rowe
Attorney General

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