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August 29, 2012

AT&T Files Suit Under Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012

In what appears to be a case of first impression, a federally licensed wireless services provider has sued a municipality in federal court seeking to enforce the provisions of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 ("TRA"). On August 15, 2012, New Cingular Wireless PCS, LLC, D/B/A AT&T Mobility ("AT&T") filed a complaint against the City of Albany, California ("City") in United States District Court for the Northern District of California seeking declaratory and injunctive relief following the denial by the City of AT&T's application to collocate antennas on the roof of a building in the City's commercial district.

In May of 2008, AT&T submitted to the City an application for a conditional use permit and design review approval to collocate and fully screen nine antennas on the rooftop of an office building. Sprint operates a similar facility on the same roof. In furtherance of its application to the City's Planning and Zoning Commission, AT&T investigated eleven alternative sites, many of which were evaluated multiple times at the request of the Commission and/or residents, and attended six public hearings. AT&T also developed multiple rooftop designs throughout the review process in an effort to comply with the City's rooftop coverage limitation for wireless facilities. According to the complaint, each of AT&T's design proposals complied with the applicable coverage limitation. Despite AT&T's project siting and design efforts, as well as three separate recommendations by City staff that the Commission approve the application, the Commission ultimately issued a denial on May 8, 2012 on the grounds that AT&T's proposal did not meet the City's rooftop coverage limitation.

AT&T subsequently appealed the Commission's decision to the City Council, which held two additional public hearings and requested that AT&T examine an alternative site that had been previously investigated and ruled out, as well as develop an additional alternative design. On July 16, 2012, the City Council upheld the Commission's denial on multiple grounds, including that: AT&T failed to comply with the City's alternative height and rooftop coverage limitations; the project does not protect the health, safety and general welfare of the community based on its failure to comply with the rooftop coverage limitations; and the project location is not suitable for a wireless facility because the building and rooftop coverage are legal nonconforming.

Among the claims contained in the complaint, AT&T alleges that the City's denial of the application violates the TRA, which requires a municipality to approve a request to collocate new transmission equipment on an existing base station provided the installation does not result in a substantial change to the physical dimensions of the base station. AT&T asserts that the site constitutes a base station under the TRA and that the proposed new equipment will not substantially change the dimensions of the site. It is unclear from the complaint as to whether the Commission or City Council were aware of the TRA or to what extent AT&T sought to educate either board about the applicability of the TRA to the project.

AT&T's other claims are based largely on the City's failure to comply with the Telecommunications Act of 1996 (the "Act"). AT&T alleges that the City's actions resulted in an effective prohibition of wireless service and unreasonable discrimination under the Act and were not supported by substantial evidence as required by the Act.

The City has not yet responded to the complaint, and it remains to be seen how or whether the Court will treat the TRA claim.

For more information. Please contact Jeff Davis, Chair of the Telecommunications Practice Area at (315) 425-2823 or by e-mail at


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