Verizon Sues City Over De Facto Antenna Ban

     SAN JOSE, Calif. (CN) — Verizon Wireless took a sleepy little California beach town to court Monday, claiming its regulation of wireless communication facilities is a de facto ban that violates the United States Communications Act.
     Verizon sued the city of Capitola in Federal Court on Monday, saying the requirements of city ordinance 17.98 mean the company cannot build any wireless facilities within city limits, so the company is unable to improve or keep pace with services to its customers.
     “The ordinance is so restrictive that it effectively bars new wireless facilities in most of the city, even if they have no significant visual or other impacts,” the complaint says.
     The dispute arises from the communication company’s attempt to install a new antenna at 1200 41st Street in the heart of Capitola, population 9,918.
     Verizon wants to erect a facility to improve coverage and lighten the demand on other antennas located throughout the city. It says its ability to process data crucial to clear and effective communication has declined due to Capitola’s delaying the permit application process by six months.
     “While this upgrade is significant to Verizon Wireless and its customers, it is utterly insignificant from any legitimate land-use perspective,” Verizon says in its complaint. “Placing small antennas and ancillary equipment on the roof of a commercial building, with the antennas concealed inside a faux chimney, would not cause any significant visual, noise, or other impacts properly regulated under the Capitola zoning code.”
     Verizon said it submitted a permit on July 27, 2015, and waited half a year for it to be processed before the application was denied by Capitola on the grounds it violated the wireless communications facilities ordinance that stipulates no antenna may be built within 300 feet of a residential structure.
     In the present instance the tower in question is slated to be built within 240 feet of a residence, according to the complaint.
     “The city’s onerous and intrusive regulatory scheme violates federal law, both on its face and as applied to Verizon Wireless in this case,” the complaint says. “Local governments may not ‘interfere with the federal government’s regulation of technical and operational aspects of wireless telecommunications technology, a field that is occupied by federal law.'”
     Verizon says wireless communication has been regulated by the federal government since the turn of the 20th century, with the advent of the radio. In 1993, Congress reaffirmed and strengthened the federal government’s sole authority over wireless communication regulation and explicitly prevented states and local municipalities from asserting their own regulatory framework that infringed upon federal management, according to the complaint.
     Verizon says Capitola enacted its draconian ordinance in 2003 in response to public pressure and a concern over perceived health risks associated with living in proximity to the towers and antennas.
     The company seeks an order stating that Capitola’s ordinance is preempted by federal law and the U.S. Constitution, as well as a permanent ban on the city’s enforcement of the ordinance.
     Capitola is located along the shores of the Monterey Bay just down the coast from Santa Cruz, California.
     Verizon is represented by James Heard from Mackenzie and Albritton in San Francisco.
     A representative from the city of Capitola said the city attorney had yet to see the lawsuit and declined to comment. A Verizon representative also declined to comment, citing the company’s policy not to comment on pending litigation.

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