Stop the Tower

Item in The Northwest Current, 10/10/01

American Towers launches court appeal

Elizabeth Wiener

A year after the city pulled permits for a controversial television tower in Tenleytown, the tower stands half built, still surrounded by construction fences as litigation over its fate continues. No quick resolution is in sight.

The case of American Towers Inc. vs. Anthony Williams will next go to the U.S. Court of Appeals. On Aug. 31, American Tower Corp. filed a notice that it will appeal a lower court ruling, which threw out of federal court American Tower's $250 million suit against the city.

American Tower initially claimed the city violated its due process rights as well as a federal telecommunications law that prohibits local interference with the construction of cell phone towers. City officials say that the case is a matter of local zoning law, and that after construction began, zoning officials realized the project violates both setback and height requirements.

In June, after mulling the complaint for six months, U.S. District Court Judge Paul Friedman ruled that the company's various complaints against the city for stopping work on the tower raised no federal questions. Late this summer, Friedman denied the company's request that he reconsider that decision.

John Brennan, attorney for the Boston-based tower company, said it is not pursuing the case in local court because "we think we're correct on the federal claim." He said the company will simply argue that Friedman erred in his ruling. "He didn't say we have no claim [against the city], but no federal claim, according to his judgment. We say he's wrong."

Last fall the company launched a public relations campaign against the city, arguing it arbitrarily stopped construction of a previously approved project because of pressure from Ward 3 residents.

Brennan said also that administrative appeals before the Board of Appeals and Review and the city Board of Zoning Adjustment have been stayed until the federal case is resolved. "It's just a long grind of litigation," he said.

Peter Levalle, spokesperson for the city's Office of the Corporation Counsel, said it is his office's policy not to comment on pending litigation. He said only that the city considers the case to be "very much alive." Once American Tower files its appeals brief, the city will reply.

But some local opponents of the tower say the company is relying on the federal courts because it fears taking the case to city administrative bodies or courts, which presumably would be more sympathetic to local land-use decisions. "If they were going to be aggressive, they would have filed in local court. But they don't want to deal with local zoning issues," said one Northwest attorney.

"They don't have any choice" but to pursue the federal appeal, said Mary Abate, another member of Stop the Tower Coalition's legal committee. But Friedman's decision "was just about airtight," Abate said. "He covered every argument, and it will be very hard to overturn."

Meanwhile American Towers, like many companies in the troubled telecommunications sector, has experienced broader financial problems of late.

In early September, financial wire services reported concerns about American Tower's cash flow and ability to pay off debt. A corporate spokesperson immediately denied the news had serious implications for the company's future.

American Tower's primary business is the construction of telecommunications towers  on which it leases antenna space to both wireless cell phone firms and broadcast stations.

The planned 756-foot tower in Tenleytown was designed to handle High Definition Television, a digital system once considered the wave of the future.

However, consumers have reportedly been slow to purchase expensive new sets need to receive HDTV.

A spokesperson for American Tower as well as its vice president, Robert Morgan, did not return calls for comment.