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A growing public resistance to cellular towers has landed the cell-phone industry in a legal morass, where cellular providers are either suing over the right to exist, or being sued for existing. The growing number of suits against the wireless industry in recent years has involved everything from bird fatalities to health concerns to declining property values. And that’s just the start. In California, a zoning appeal that dragged on for 2 1/2 years alleged that, among other things, cell towers can interfere with extraterrestrial beings. In Michigan, protesters are challenging the placement of a cell tower in a Detroit cemetery, alleging that it could disrupt the cemetery’s peaceful environment. In response to this litigation, or in some cases to avoid it, cell providers have come up with unique tower designs, such as a cross next to a church, which went up in Hayes, Kan., last year. Another cell tower resembling a bell tower recently went up in Waco, Texas. Cell towers disguised as flagpoles and trees also have been designed to appease the public. But where aesthetics are not concerned � or public pressure is too intense �cell-phone companies are going to court. Lawyers representing cellular providers say that as a last resort, companies are suing towns and challenging the use of political pressure by local citizens who convince towns or zoning boards to deny petitions to install cell towers. “This political pressure to deny � it forces carriers to sue to survive,” said attorney Ed Donohue, a wireless litigation expert who is currently handling a right-to-exist suit for AT&T Corp. in California. “There’s incredible demand for wireless service, but there’s incredible resistance to cell citing. You have it all coming to a head now.” Donohue, of Cole, Raywid & Braverman in Washington, also argues that the wireless industry has obligations to fulfill, not just to private customers, but to public services, like emergency, police and fire units. “We have obligations under our FCC licenses. We have customer demand. And we have things like 911,” Donohue said. “All of this comes to a point where you need more facilities.” But residents and town officials assert they still have a legal right to protest something they don’t want in their backyard. “It bothers people. They’re sitting in $700,000 to $800,000 homes and they don’t want to look at a tower,” said Douglas Jobson, town supervisor of Stony Point, N.Y., which is currently being sued in federal court by Sprint Spectrum over the placement of an 80-foot cellular tower. Sprint v. Stony Point, 03-CIV-9474-CLBLMS (S.D.N.Y.). According to Jobson, Sprint wants to install a cell tower on a former skating rink, but several residents are opposed to it because of its proximity to homes. Sprint is suing the town for allegedly dragging its feet in the process, arguing the town delayed tower proposals for more than two years by enacting a new and stricter law that regulates the citing of cell towers. The lawsuit is still pending. Sprint’s lawyer, Robert Gaudioso of Tarrytown, N.Y.’s Snyder & Snyder, declined comment. FIGHTING IT OUT The number of cell towers installed over the last decade has increased dramatically, from 25,000 cell cites in 1996, to 96,000 in 2000, to the current number of 165,000, according to Fryer’s Tower Source, a research group for the wireless industry, which tracks the number of towers nationwide. And as towers pop up, so do lawsuits. While there is no data on the actual number of cell tower lawsuits filed nationally, lawyers involved in such cases say dozens are pending in federal courts in Washington, California, Florida, South Carolina, New York and New Jersey. Also, there are more than 60 zoning requests for cell towers being contested at the municipal level, according to the Wireless Infrastructure News Service. At the heart of these cases, lawyers say, is the Federal Telecommunications Act of 1996, which prohibits municipalities from denying cell tower building permits based on health and environmental concerns. Despite the law, they say, municipalities are caving in to public fears over health concerns, environmental factors or property values, and denying permits to build cell towers. That’s what Donohue alleged happened in San Francisco when AT&T proposed installing an antenna on a utility building that was already occupied by Cingular Wireless LLC. The city denied the request on the ground that cellular service was already available in the area, so AT&T sued the city last October, arguing discrimination. AT&T v. San Francisco, C-03-4866 (N.D. Calif.). Donohue said discrimination among wireless providers is prohibited under the Telecommunications Act. But more than that, he believes the city rejected AT&T’s request largely because of local opposition. “We think that RF [radio frequency] was very much a part of that decision. There was so much testimony at the public hearings about the harmful effects of RF that it’s hard to escape,” Donohue said. “I think they did it because the citizens pressured them into doing it.” Donohue, who has tried 10 cell tower cases for AT&T, also argues that San Francisco failed to provide substantial evidence in denying the request. He said one of the most important provisions in the telecommunications act is that “any denial be based on substantial evidence. “In litigation that’s always the most significant factor,” Donohue said. “At the end of the day, oftentimes a decision is based on citizen opposition, fears about RF, or some unspoken grounds, which do not constitute substantial evidence.” William Sanders of the San Francisco city attorney’s office could not be reached for comment. Donohue also noted that individuals lack standing under the Telecommunications Act, and that the vast majority of cases are carriers going against municipalities. But that’s not stopping citizens from taking their cell tower concerns to court. Take, for example, a case in South Carolina, where a man claims a cell tower built near his home is affecting his pacemaker. He and his wife are suing the county, Cingular Wireless and the company that built the tower. The plaintiffs, Kenneth and Cheryl Scott, allege that the tower was built too close to their home, in violation of a county ordinance that regulates setback requirements for cell towers. Scott v. Berkeley County, Cingular Wireless and Public Utility Co. ‘NIMBY’ STRIKES AGAIN In Florida, Ridan, a Tampa, Fla., cell phone tower company, sued the city of Tarpon Springs, Fla., last December after the city rejected a proposal to build a 150-foot tower on a private lot. Neighbors complained of damaged property values, so Ridan sued. “They didn’t really give any grounds. They just took a vote and that was it,” said Ridan’s lawyer, Darrin Quinn of Sterns Weaver & Miller in Tampa. Quinn argued that the city’s denial violated a provision of the telecommunications act that says towns must accommodate the placement of enough towers to ensure that 911 callers can be located and that proper coverage is provided. He said a gap in cell coverage had existed for years in the area. In June, the two sides reached an agreement where Ridan would lease space for the tower behind a fire station and pay the city $2,500 a month for 20 years. Tarpon Springs City Attorney John Hubbard could not be reached for comment. Ridan v. Tarpon Springs, (M.D. Fla.). In New York, residents of the posh Pound Ridge community were recently successful in winning a not-in-my-backyard argument with regard to a 120-foot cell tower. In February, the New York State Court of Appeals found that the property on which the tower stands cannot be used as a cell site because it is bound by a restrictive covenant. The state high court ordered the removal of the tower in a timely manner. Chambers v. Old Stone Hill Road Associates, 806 N.E.2d 979 (N.Y. 2004). But the tower is still standing, prompting plaintiffs to file two additional lawsuits last month. The first action seeks to hold Verizon Wireless in contempt of court and request the immediate removal of the tower. The second seeks to force the town to remove its emergency equipment within 30 days. “The tower is still standing and it’s our position that the tower violates the court’s order,” said Katherine Zalantis of Wilson Elser Moskowitz Edelman & Dicker’s White Plains, N.Y., office. “In my opinion we’re way past the reasonable time period.” But the town’s lawyer says moving emergency services isn’t such an easy task. “The town is being whipsawed in the process in that the town needs to find a suitable place for its emergency system . . . .We’re going as reasonably fast as we can. The bottom line is, it ain’t that easy,” said the town’s attorney, William Harrington Jr. of Platt & Schmidt in White Plains. Harrington said in finding a new tower location, the town is concerned about disrupting the area’s emergency services, which operate off the tower and service not only Pound Ridge, but a significant portion of northern Westchester County. “We simply want to ensure that we have proper emergency communication system in place. If we could do that and put this tower in a place that offended no one, that’s what we would do. Unfortunately, that doesn’t appear to be an alternative,” Harrington said. Verizon’s lawyer, Leslie Snyder of Snyder & Snyder, declined comment. THE NINTH CIRCUIT Jeff Fancher, a deputy prosecuting attorney in Thurston County, Wash., is paying close attention to the Ninth Circuit U.S. Court of Appeals. He’s currently defending his county in two lawsuits filed by Cingular Wireless, which wants to build two cellular towers in Thurston County but has met local resistance. Cingular v. Thurston County, C03-5400FDB and C04-5009FDB (W.D. Wash.). Fancher said one of the county’s issues is that AT&T already has a tower in the area that Cingular wants to move into. His question is: “If one carrier is already in place, can we deny a permit to another?” Cingular’s attorney, Paul Lawrence of Preston Gates & Ellis in Seattle, could not be reached for comment. Fancher hopes that question will be answered by the Ninth Circuit, which is currently hearing a case filed by a small wireless provider claiming discrimination. MetroPCS Inc. v. City and County of San Francisco, 03-16760. “It’ll be helpful to have a decision from the Ninth Circuit,” Fancher said. In that suit, the provider, MetroPCS, wanted to install an antenna on a parking garage, but the request was denied on the ground that there were enough carriers at that site. Like Fancher, Donohue is also keeping a close eye on the Ninth Circuit. “It’ll indicate how the California courts are going to treat things like substantial evidence and discrimination,” Donohue said. Tresa Baldas is a reporter for The National Law Journal, a Recorder affiliate based in New York City.

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