WASHINGTON-The Supreme Court, in a major blow to the wireless industry, last week said it would not hear an appeal of a lower court’s antenna-siting ruling favoring a Pennsylvania town.
“It would appear that it gives towns again the opportunity to say the burden of proof is on the service provider,” said Janet Newton, executive officer of the EMR Network.
The EMR Network, though small and having limited resources, has become a force in antenna-siting issues that are playing out at the federal, state and local levels.
Newton and the EMR Network have worked closely in recent years with the Vermont congressional delegation in support of legislation that would return all antenna-siting oversight to local regulators and repeal federal pre-emption of health-related tower-siting provisions of the 1996 telecom act.
So far, the legislation has gone nowhere in Congress.
The wireless industry, which failed to convince either Congress or the Federal Communications Commission to pre-empt local regulation of antenna siting, was dismayed at last week’s Supreme Court action.
But the industry believes it is only a matter of time before the high court reviews a tower appeal. The industry is confident it can win such a case.
“We’re disappointed and it’s my hope that a different federal circuit-on similar facts-will arrive at a different conclusion and perhaps in that way establish inconsistent rulings that the Supreme Court is interested in resolving,” said Michael Altschul, vice president and general counsel of the Cellular Telecommunications and Internet Association.
Omnipoint Corp., which has since been acquired by VoiceStream Wireless Corp., sued in 1998 after Newtown Township, Pa., rejected the mobile-phone carrier’s tower application. Omnipoint argued the township’s action violated the 1996 telecom act’s requirement that state and local regulation of antenna siting “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
A federal court ruled in favor of Omnipoint, but the 3rd U.S. Circuit Court of Appeals in Philadelphia subsequently overturned the decision. That prompted Omnipoint to ask the Supreme Court to reverse the 3rd Circuit’s decision.
“It was a disappointing decision but we expect future fact patterns to give the industry a chance to go back [to the Supreme Court],” said Rob Hoggarth, senior vice president for government relations at the Personal Communications Industry Association.
While refusing to review the 3rd Circuit’s ruling, the Supreme Court may well take up another antenna-siting case in light of different federal circuit decisions that have been decided in favor of industry as well as local zoning boards.
Though the Supreme Court turns down thousands of cases every year, it takes special interest in cases involving conflicting rulings in different federal circuits.
“It’s disappointing,” said Sheldon Moss, director of government affairs for Crown Castle USA, in Canonsburg, Pa. At the same time. Moss said he expects the effect of the 3rd Circuit’s ruling-which by default has been upheld by the Supreme Court-to be limited.
Moss, too, believes the growing use of wireless technology in modern society could tip the balance in favor of industry in coming years. “The times are on our side.”
Antenna-siting disputes are not likely to go away any time soon, despite progress on that front in recent years. As mobile-phone systems become congested and carriers expand networks to accommodate Internet data applications with third-generation technology, the need for cell-splitting and construction of new towers will arise.
