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ATC v. City of San Diego (Part II)
ATC v. City of San Diego
(Part II)
This article builds on the
December 2007/January 2008 issue of PlanWireless where the complicated
lawsuit by American Tower Corporation (ATC) against the City of San Diego was
described.
If height is so
important to ATC why is the top of the monopole empty? Is it because no carrier
wants to be there?
One of the advantages of reporting
on a lawsuit in limbo, which this one is, lies in time. PlanWireless
needed this time to go to San Diego to visit the sites involved. ATC v.
City of San Diego is currently on hold.
ATC’s Premise
ATC has made a major investment in
what most people call “towers.” At least ten of ATC’s Conditional Use Permits
have expired and no longer meet the City’s regulations. All ten of ATC’s towers
now exceed the City’s height limits, although they did not exceed height limits
when originally approved. ATC claims in the lawsuit that they have a vested
right to maintain their original structures and they refuse to shorten their
towers just because the City lowered its height restrictions. ATC has sued on a
variety of claims, but the expired CUPs are the major issue.
The City of San Diego’s Premise
The City finally has a set of regulations it can live with
and ATC doesn’t meet them in at least ten Conditional Use Permit locations. The
City wants ATC to bring the Wireless Communication Facilities (WCFs) (that is
what the City calls them) into compliance with the City’s new regulations so the
City can give ATC new Conditional Use Permits. The first of the Conditional Use
Permits expired in 2004 and all of the towers are still up.
What PlanWireless Believes This Case is Really About
The Telecommunications Act of 1996, which is invoked by
both sides in this lawsuit, is about “personal wireless service facilities.” It
is not about “towers” which merely serve as structures, nor is it about “WCFs,”
which according to the City mix the tower and the personal wireless service
facility, nor is it about Wireless Telecommunication Facilities (WTFs), which is
ATC’s preferred term.
By conferring the title of “WCF” on a tower, the City
focused its attention on the infrastructure, rather than what was on it. ATC
was allowed to add or change personal wireless service facilities on the tower
at will, according to PlanWireless’ comparison of the approval documents
compared to the actual sites, but the City of San Diego focused on the tower as
the subject of the Conditional Use Permit.
And focusing on towers is where the trouble starts and
where both sides’ arguments go astray.
Figure 1: ATC’s disputed tower at 2222 Verus St.
shows only one personal wireless service facility. The only thing ATC owns is
the monopole. The T-arms for 12 antennas are empty and probably intended for
Sprint, which never installed its antennas. The antennas are for Nextel, which
is a different carrier than Sprint. (The company “Sprint-Nextel” is not a
carrier but a holding company for two separate and distinct carriers.) If ATC
cut its monopole in half, the City would give them a new CUP.
Standing, or Having the Right to Sue
The City of San Diego claims that ATC has no standing to
sue because it is not licensed as a carrier by the FCC. True enough, and that
would still be the case if the City had limited its authority to permitting
“personal wireless service facilities,” as the Telecommunications Act explicitly
provides. But only personal wireless service carriers can own and operate
personal wireless service facilities.
Instead, the City of San Diego (like many cities and
counties) acknowledged a tower company as owner or a “WCF,” and therefore
granted ATC status. Once a municipality grants status to an applicant or a
permittee, even if it is an alien from another planet, that applicant or
permittee may have standing in its particular application. And when that
applicant or permittee has complaints about its previously granted status, it
may have standing to sue.
Height
The most offensive (according to the City) characteristic
of the original “WCFs” approved by the City is excessive height. The City
itself acknowledged this by assessing the existing facility and stating for the
next Conditional Use Permit:
… a substantial reduction in height will be expected with
the next submittal.
Since the tower was considered the principal part of the “WCF,”
this meant either tearing a monopole down and rebuilding it or getting out the
chain saws and sawing most of the tower down.
Had the Conditional Use Permit been
for a personal wireless service facility, as authorized by the
Telecommunications Act, the permittee (a carrier, not a tower company) would
then have to find another spot. Instead, the aggrieved party becomes the tower
owner with a Conditional Use Permit for a “Wireless Communication Facility,” and
the tower owner is being told to give up part of its property.
The City of San Diego was aware that the FCC-licensed
carriers were the parties that are impacted by the height reduction. In one of
their denials, the Planning Commission resolved:
The project, as it exists, does not result in a visually desirable project.
If redesigned to comply with the 30 foot height limit, Verizon services to the
community and passing commuters would be significantly reduced. However,
Verizon has the responsibility of exploring available alternatives that would
address legal requirements as well as reduce the negative impact on their
existing network.
And so, it is the personal
wireless service facility of Verizon, not the tower of ATC, that is impacted by
the City’s actions. Why, then, wasn’t Verizon the applicant for a personal
wireless service facility, rather than a tower company allowed to be a permittee
for a “WCF”?
Figure 2:
ATC's disputed monopole at 30th Place. The height is not
critical for Verizon at the top, because Verizon is a broadcast technology, as
are all cellular, PCS, AWS and 700 MHz technologies. Verizon could be much
lower and augmented by two or three other cell sites to give much better
“coverage” for the same service area.
But the dishes are microwave
relay, and they are a line-of-sight technology. They must be at the height and
position they are at, and that may be why ATC cannot lower this monopole.
There are seven dishes (only
six are clearly visible in this photograph) and Verizon that were approved. The
whip at the top is a different personal wireless service facility and does not
appear in the approval documents.
Buying the Sky
ATC built several monopoles scores
of feet higher than the San Diego height limit in the 20th Century.
This now impermissible height gave ATC a competitive advantage over new
applicants by 2000, when the City’s rules forced lower mounts in San Diego.
But ATC claims that their rights
can’t be taken away, even though ATC and its successors signed 10-year and
20-year Conditional Use Permits with specific expiration dates.
Now ATC claims that its business
success depends on keeping heights high in order to facilitate co-location as
stated:
In fact, the city has required either removal or replacement
of ATC’s facilities with a substantial reduction in height, effectively removing
ATC’s collocation capabilities. As a result of these requirements, ATC will
lose hundreds of thousands of dollars.
But the expected co-locations have
not occurred and, because deployment heights are dropping everywhere (not just
in San Diego), it is not likely that high positions on the mounts will be sought
by Cellular, PCS, 700 MHz and AWS carriers.
Competition
To add insult to injury, ATC
claims that the City is putting wireless carriers on City-owned monopoles (only
one of which is identified), which are exempt from the height restrictive
regulations. Once again, ATC is looking at a “Wireless Telecommunication
Facility,” which is basically a tower. It is not the tower but the type of
wireless services that are attached to a monopole that invokes the term
“personal wireless service facility” and the protection of the
Telecommunications Act.
For its part, the City defends its
right to rent to FCC-licensed carriers on it own “WCF” when the tower was built
for municipal purposes:
ATC argues that City’s exemption for land use
regulations as it relates to its own structures creates an excessive burden on
interstate commerce. City’s exemption is founded in a long line of legal
precedence and supports City’s reasonable exercise of its police powers to
regulate the health, safety and welfare of its citizens. City’s wireless
structures (sic) main function is
for emergency communications, eg., fire and police.
However, the City fire, police and public safety wireless
facilities are not personal wireless service facilities, and City users are not
protected by the Telecommunications Act. The fact that police and fire
responders are on a monopole does not make them identical to FCC-licensed
carriers … their frequencies are allocated, not auctioned. Because public
safety facilities are hung on a pole that looks like a monopole accommodating
personal wireless service facilities does not make the pole a “WCF.” Only when
a FCC-licensed carrier’s facilities are hung on the City-owned monopole should
the carrier apply for and be granted a personal wireless service facility
permit. This the City did not do. Personal wireless service facilities can be
attached anywhere: rooftops, water tanks, city halls, light standards … who
owns the mount and what it looks like is immaterial to determining whether the
attachment is a personal wireless service facility or not.
Conclusion of Part Two
ATC v. City of San Diego will be around a long time
because it is held up pending a decision in Sprint v San Diego County.
Readers of PlanWireless will recall that San Diego County won in Superior
Court but lost in federal District Court and at the Ninth Circuit Court of
Appeals. Since then, many objectors to the decision have forced an en banc
proceeding by the Ninth Circuit. En banc means that all judges in
the Ninth Circuit will look at the Sprint v. San Diego County case instead of
the three judges who found for Sprint.
In the Sprint v San Diego County case, Sprint
mounted a facial attack on San Diego County’s ordinance. So, similarly, has ATC
launched a facial attack against the City of San Diego, claiming the City’s
ordinance is burdensome and overreaching.
Our subscribers can look forward to more on
ATC v. San Diego as well as Sprint v. San Diego in future issues.
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