Western PCS BTA 1 Corp. lost the first round of its battle with the city of Tucson, Ariz., over the city’s new zoning ordinance. Western claims the law prohibits it from providing service in Tucson.
U.S. District Court Judge William Browning denied Western’s request for a preliminary injunction that would stop enforcement of the new ordinance enacted April 6. Browning said Western did not provide sufficient evidence that it was likely to prevail on the merits. He said the company “failed to show that the ordinance unreasonably discriminates against Western or any provider of functionally equivalent services. The ordinance has uniform application, treating all would-be service providers equally.”
“The preliminary injunction was an extraordinary effort to get relief from the ordinance. Our lawsuit is still pending,” said Western’s General Manager Jim Sullivan. “We believe if the court hears all the facts in the case, the court will overturn the ordinance.”
Western filed the lawsuit in April, claiming the new law discriminates against Western and favors existing wireless operators as well as violates the telecom act. The company, which received its E- and F-block personal communications services licenses for Tucson and Phoenix in January, said both cellular carriers and two PCS carriers already have constructed extensive antenna facilities in critical areas under the old ordinance. Both A-and B-block PCS carriers, Sprint Spectrum L.P. and AT&T Wireless Services Inc., have launched service there. Western, still in the design-and-acquisition phase, has not constructed any telecommunications facilities in the city or submitted applications for permits under the new law.
The new ordinance requires wireless providers obtain a conditional use permit for every antenna facility they seek to build. The companies also are subject to various administrative reviews, some as long as six months. Previously, carriers could construct antennas in most commercial and industrial zones once a building permit was obtained.
The new law also requires carriers locate antennas within one mile of an existing antenna unless no other alternative is available, and new towers are not permitted within 400 feet of a designated scenic route or gateway route, or within certain designated zones. Western argues that the one-mile provision allows existing carriers to exclude competitors from locating new antennas within one mile of an existing antenna and allows the existing carrier to overcharge a new competitor for the right to collocate. The gateway route restriction “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 service and are in some cases bordered by the commercial and industrial zones in which antennas would logically be located,” stated Western in its complaint.
Tucson is in the process of making minor changes to the ordinance, including an amendment that would revoke a six-month sunset provision on the ordinance and one that would permit location of free standing antenna towers within gateways in exceptional circumstances, said Michael McCrory, assistant principal attorney for the city. But Tucson is not likely to amend the ordinance to the liking of Western.
“We’re making a large effort to help convince the planning commission and the city council for change,” said Sullivan. “It’s beneficial for all carriers. All the carriers are supportive of changes in the ordinance.”
