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Court stays away from dispute over cellular telephone antennas

Updated:
WASHINGTON – The Supreme Court stayed out of a dispute over how much leeway local governments have to control cellular telephone companies' installation of antennas to broaden their service areas.

The court, without comment Monday, turned down Omnipoint Communications Enterprises' argument that it was improperly refused permission to install an antenna in Newtown Township, Pa.

Omnipoint sued under the 1996 federal Telecommunications Act, which bars local governments from enacting laws that would "prohibit or have the effect of prohibiting the provision of wireless services."

Omnipoint applied for a permit to put antennas on top of an apartment building in Newtown Township. The town zoning board denied the permit in 1998.

The company sued, and a federal judge ruled for the company. The judge said Newtown's zoning policy violated the telecommunications law because it, in effect, barred placement of antennas anywhere in the township. Other companies were able to install antennas because officials "looked the other way," the judge said.

The 3rd U.S. Circuit Court of Appeals reversed the decision last March. The court said it is not sufficient for a cellular phone company to show that it was denied a chance to fill a gap in its own service area.

Instead, the court said that to win its lawsuit, Omnipoint must show that Newtown was not allowing any cellular phone company to provide service in the area. The appeals court returned the case to a lower court to determine whether Omnipoint could make such a showing.

In the appeal acted on Monday, Omnipoint's lawyers said the 3rd Circuit court's ruling "deals a devastating blow to the personal wireless services industry and the public" and would mean "telecommunications carriers will be unable to complete their networks, users will be unable to communicate as they travel, consumers will lose the benefit of competition among carriers and public safety will be compromised."

The appeal was supported by AT&T Wireless Services, Nextel Communications, SBC Wireless, Sprint Spectrum and Dobson Communications.

Newtown Township's lawyers said the telecommunications law keeps local governments from prohibiting cellular phone service generally, but it does not protect individual companies from local regulation.

The case is Omnipoint Communications v. Newtown Township, 00-353.
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