WASHINGTON-A federal appeals court recently dealt a blow to wireless carriers hoping to site antennas in areas where residents believe they would be an eyesore. “[The wireless] industry should take it as a shout across the bow. The political winds are shifting,” said Paul Rosa of Digital Landscapes, a consulting firm that specializes in antenna-siting aesthetics.
The U.S. Court of Appeals for the Fourth Circuit on Sept. 1 overturned, by a ruling of two-to-one, a federal district judge who had said two towers could be built in a residential section of Virginia Beach, Va. Virginia Beach originally denied the antenna-tower sitings, saying the placement was not compatible with the “residential character” of the neighborhood known as Little Neck.
The case is important because the court ruled that to adopt the wireless industry’s position that cities cannot deny tower-siting requests based solely on citizen complaints “effectively eviscerates and substantially and unfairly complicates the local zoning process,” said Joe Van Eaton, outside counsel for Virginia Beach.
The case also reflects a shift in attitudes by judges, Van Eaton said. “This is reminiscent of what we are seeing in the cable [industry]. The big mistake [is] that the [wireless] industry is [arguing this case as] a legal issue. It is highly unlikely that judges are going to rule that experts always win. Judges live in neighborhoods … The problem for the industry is that judges are not going to decide this in the abstract,” Van Eaton said.
Rosa also believes the case is important because the Fourth Circuit is slated to hear a case coming out of Haywood County, N.C. The Virginia Beach case may give clues as to how this court will rule in the Haywood County case, Rosa said.
Judge Lacy H. Thornburg told Bell Atlantic Mobile it must submit an application fully complying with a new antenna-siting ordinance in Haywood County, and have that application rejected before the court will determine whether the ordinance violates the Telecommunications Act of 1996.
BAM had filed a lawsuit in January, claiming a moratorium on wireless facilities put in place by Haywood County violated the 1996 telecom act because it had been enacted 16 months after the telecom act was passed.
Thornburg disagreed, saying the moratorium was for a specific time period-one year-and did not discriminate against certain providers, so there was no violation. Additionally, Thornburg said the county complied with the moratorium by enacting new rules within the year specified.
Thornburg also said the timing of the BAM lawsuit showed the company was not willing to comply with the new ordinance because it wanted its application considered under the pre-moratorium rules. This is not necessary because the delay caused by the moratorium was insignificant, Thornburg added, noting it was five weeks from the time of BAM’s application filing to when Haywood County adopted the new ordinance.
BAM is not a party in the Virginia Beach case.
Rosa also believes the ruling by the Fourth Circuit is significant because the Fourth Circuit is considered more conservative than other appeal circuits. “If it had come from the Ninth Circuit, which is a very liberal court, it wouldn’t mean as much. But, coming from the Fourth Circuit, a very conservative court, it is very significant,” he said.
The Fourth Circuit said that Virginia Beach was not discriminating against the two carriers which filed the lawsuit, AT&T Wireless Services Inc. and PrimeCo Personal Communications L.P., because it did not allow any towers to be built on the site in question. The two towers were each slated to be 135-feet tall and contain one analog and one digital antenna each for AT&T Wireless and PrimeCo.
The PrimeCo tower has been built but it is not operational, said a company spokeswoman. The analog antennas were to service GTE Wireless and 360
