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Wireless arena litigation ongoing

WASHINGTON-The wireless industry has won several key court cases involving antenna siting, liability and health protection, but litigation is expected to continue well into the future as pagers and mobile phones further penetrate the consumer market.

That some federal courts have sided with carriers recently is good news for the wireless industry. The bad news for industry is case law on tower construction and other issues is anything but uniform. Indeed, predicting the outcome of any given wireless lawsuit is difficult. That, in turn, injects a level of uncertainty in the wireless business.

Last month, the U.S. Court of Appeals for the Second Circuit in New York ruled that federal law is supreme when it comes to antenna siting. The same court also affirmed the Federal Communications Commission’s radio-frequency radiation safety guidelines.

As for antenna siting litigation, the only constant is inconsistency. While several federal appeals court cases have gone against industry, a few recent decisions have gone the carriers’ way.

“Congress did preserve some local zoning over the placement of wireless service transmitters like BANM’s (Bell Atlantic Nynex Mobile),” the Second Circuit stated. “However, we conclude that Congress did not intend by this provision to repeal the FCC’s exclusive jurisdiction over RF interference complaints. The statute’s preservation of local power extends only to `placement, construction and modification’ of `facilities.’ In light of the FCC’s pervasive regulation of broadcasting technology, this provision is most reasonably understood as permitting localities to exercise zoning power based on matters not directly regulated by the FCC.”

In late December, the U.S. Court of Appeals for the Tenth Circuit upheld a district court ruling that favored Southwestern Bell Wireless Inc. The case turned on the question of whether federal law pre-empts a county zoning regulation governing RF interference.

But two weeks ago, a federal appeals court in Massachusetts ruled a Franklin, Mass., building commissioner was within the law to order Nextel Communications Inc. to tear down a tower because it did not comply with zoning bylaws.

The court rejected Nextel’s argument that it was a public utility and thus exempt from zoning bylaws. The federal appeals court said Nextel did not meet the definition of a monopoly utility because, among other things, it had wireless competitors.

“At the circuit court level the decisions have really been a mixed bag,” said Sheldon Moss, director of government relations for the Personal Communications Industry Association.

But, he added, “I think it shows that in real egregious cases, courts will step in and rectify the situation.”

Moss said great strides have been made in recent years to quell local furor over antenna siting. Much progress, he said, is due to increased industry professionalism in the siting process, cooperation among carriers in the form of collocation and greater sensitivity to local communities.

In the past, Moss explained, carriers were racing each other to erect towers and complete build-out of wireless systems. These days, he said, buildout is continuing, but not at the same frenetic pace as during the mid- and late 1990s.

Also, noted Moss, tower companies and other third parties with extensive siting knowledge have replaced carriers as the parties who negotiate with local zoning officials.

“We’ve had some hard-learned lessons in the past,” said Moss.

Meantime, antenna siting has become a hot-button issue in the state legislatures of Virginia and Massachusetts.

On the liability front, the U.S. Court of Appeals for the Seventh Circuit decided earlier this month that a lawsuit against AT&T Wireless Services Inc. for breach of contract and consumer fraud did not belong in an Illinois state court.

Despite the ruling, the Federal Communications Commission appears set to declare that telecommunications law does not pre-empt state courts from awarding monetary damages in lawsuits against wireless firms that violate consumer protection and other state laws.

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