Providers: Cell-Tower Bylaw Illegal

By Alexandra Mayer-Hohdahl, The Sun, Lowell, Mass.

Mar. 12–TEWKSBURY — Two cell-phone providers have called upon the Planning Board to recommend against passing a new cell-phone tower bylaw at tomorrow’s Special Town Meeting, calling the act illegal, vague and arbitrary.

Chairman Nancy Reed has scheduled a special meeting for 6:30 p.m. tomorrow, in classroom B9 of the Tewksbury Memorial High School, to discuss how the board should proceed. Town Meeting is scheduled to start in the high-school gymnasium at 7 p.m.

Representatives for Verizon Wireless and Omnipoint Communications, a subsidiary of T-Mobile, expressed their displeasure with the proposed bylaw in separate letters earlier this month.

Reed said they constitute thinly veiled threats of upcoming lawsuits if the town were to proceed with the new bylaw.

“The letters are rather intimidating,” she said. “This is new territory and we don’t want to do something that would be bad for the town, especially when it comes to legal costs. We will take everything under consideration.”

The bylaw was compiled by Planning

Board members with the help of a consultant, after a one-year moratorium on the construction of cell-phone towers was instituted during a May Special Town Meeting last year.

Both the moratorium and the new bylaw stem from the controversy surrounding a 140-foot-high Sprint cell-phone tower that was erected in front of the South Fire Station in January 2006, directly behind a memorial statue and just steps from Route 38.

The biggest change in the bylaw is a new clause instructing wireless-service providers to “fully evaluate” a so-called distribution antenna system before any new cell-phone towers are to be considered by the board.

Such a system consists of an equipment-housing base, which is built remotely from antennas that are mounted on existing utility poles.

This clause is also what Verizon and Omnipoint appear to most take issue with. Reed is not surprised.

“It is much more expensive (than regular cell-phone towers),” she said. “It’s always about money.”

But the two wireless providers argue that the town has no business dictating what technologies they should use.

“They create a discriminatory regime favoring proposals relying on DAS, contravening federal (court) decisions preserving carriers’ discretion to choose the technologies and architectures they use to provide service,” attorney Michael Giaimo of the Boston-based Robinson & Cole law firm wrote on behalf of Verizon Wireless.

Omnipoint’s attorney, Craig Tateronis of Boston-based Prince, Lobel, Glovsky & Tye law firm, agreed.

“Under the Federal Telecommunications Act, a board’s authority over wireless … carriers is limited to regulating the placement, construction and modification of wireless service facilities,” he wrote. “The TCA does not transform the town into the arbiter of which technology should be employed.”

Other major concerns brought forward by the providers include:

–The fact that a DAS preference could come with a “greater potential for failure during times of emergency and more limited (cell-phone) coverage.”

–At least four alleged violations of state law, including a clause that gives the Planning Board “sole and absolute discretion” over certain aspects.

–At least six alleged violations of federal law, including the “unbridled discretion” given to the Planning Board and the preference for DAS.

–The fact that the new bylaw would not impact the controversial South Fire Station cell-phone tower, the incentive for the bylaw.

“It appears that their primary purpose is to discourage carriers from proposing new wireless facilities in Tewksbury,” Giaimo concluded. “This is not a legitimate purpose under state or federal law and does not serve the needs of the citizens of Tewksbury.”

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Copyright (c) 2007, The Sun, Lowell, Mass.

Distributed by McClatchy-Tribune Business News.

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