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WESTERN WIRELESS UNHAPPY IN ARIZONA OVER ZONING ORDINANCE

A Western Wireless Corp. subsidiary has filed a lawsuit in Arizona U.S. district court against the city of Tucson, claiming the city’s new zoning ordinance discriminates against the company and favors existing wireless providers.

Western PCS BTA 1 Corp., which received its E- and F-block personal communications services licenses for the cities of Tucson and Phoenix in January, said the city of Tucson’s zoning ordinance prohibits it from providing service within the city because of the restrictive nature of the law’s measures.

Cellular carriers AirTouch Communications Inc. and Cellular One already have constructed antenna facilities in Tucson while PCS providers Sprint Spectrum L.P. and AT&T Wireless Services Inc. have recently constructed extensive antenna facilities and are prepared to launch service shortly, said the company. These carriers were able to place facilities at critical sites under the parameters of the old ordinance. Western, having received its licenses nearly three months ago, is in the design-and-acquisition phase, said the company.

The new ordinance “unquestionably discriminates (against) Western and favors existing wireless providers,” said Jim Sullivan, Western’s director of PCS development and technical operations. Other carriers’ “facilities are already constructed and are not affected by the ordinance. We also believe it violates the 1996 telecom act. It unreasonably discriminates against Western and prohibits Western from providing service within the city.”

The ordinance, enacted April 6, requires Western to obtain a conditional use permit for every antenna facility it seeks to build and is subject to various administrative reviews, some as long as six months. This would give other wireless providers a competitive advantage over Western as well as increase the time, cost and difficulty of obtaining antenna approvals, the company argued in court documents. Previously, carriers could construct antennas in most commercial and industrial zones once a building permit was obtained.

The new ordinance will require Western to locate antennas within one mile of existing antennas unless no other alternative is available. Western contends the provision allows existing carriers to exclude competitors from locating new antennas within one mile of an existing antenna and will allow them to overcharge a new competitor for the right to collocate.

New towers are not permitted within 400 feet of a designated scenic route or gateway route, or within certain designated zones, said Western. These designated zones include historic preservation zones, environmental resource zones or on a protected peak or ridge. The gateway route restriction, the company argues, “effectively precludes the location of antennas in an almost 1,000-foot wide swath along (several) streets. These streets carry the customers who will use Western’s services and are in some cases bordered by the commercial and industrial zones in which antennas would logically be located.”

Among other judgments Western is seeking against the city, it wants the court to declare that the new ordinance violates the telecom act and therefore is invalid. Western also is seeking a temporary restraining order, preliminary injunction and permanent injunction restraining enforcement of the new law. A hearing is set for April 25.

Excessive administrative processes, antenna and tower separation and set backs from certain zones are issues carriers continue to debate about with local governments.

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