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Verizon Sues Berkeley Over Cell Phone Towers

By Riya Bhattacharjee
Tuesday August 28, 2007

Cell phone giant Verizon Wireless filed a lawsuit against the City of Berkeley in the Federal Court of Oakland last week for allegedly being in violation of the Telecommunications Act of 1996. 

Verizon asked the court to declare Berkeley’s ordinance regarding cell phone antenna installations illegal and to allow the cell phone company to proceed with three of its antenna location permits, including the one atop UC Storage at 2721 Shattuck Ave. 

The other two locations are on lower University and north Shattuck avenues. 

The Zoning Adjustments Board (ZAB) voted 5-4 in July to reject a use permit application by Verizon Wireless and Nextel Communications for 11 cell phone antennas atop UC storage, following a second remand from the City Council in May. 

ZAB’s decision stated that it was “unable to make the necessary finding based on substantial evidence that the towers were necessary to provide personal wireless service in the coverage area, since service is currently being provided and since no evidence has been presented that existing service is not at an adequate level.”  

The Telecommunications Act of 1996 requires cities to grant cell phone companies a permit within a reasonable period of time and allows the carrier to sue for unnecessary delay.  

The other thrust of the law states that a city violates federal law on its face by creating an overly burdensome ordinance which includes demonstrating necessity for use of the site. 

San Diego’s ordinance regarding cell phone antennas was recently thrown out by Sprint because it was found to be “overly burdensome.” 

The proposal, which was first remanded to ZAB by the City Council on Sept. 26, 2006, had raised health concerns among the neighbors.  

Citing the Telecommunications Act, which prohibits local governments from rejecting wireless facilities based on health concerns as long as the stations conform to Federal Communication standards, the council had asked ZAB to make a decision based on third-party engineering review, parking concerns and illegal construction instead of health.  

ZAB voted 6-3 to deny the construction of 18 cell phone antennas at the Jan. 30 board meeting. Both Verizon and Nextel appealed to the City Council and a public hearing was held in May.  

In a confidential memo to ZAB, City attorney Manuela Albuquerque had warned that a rejection of the Verizon application would be a violation of state and federal law.  

The Planet was unable to get a comment from the city attorney’s office by press time. 

Verizon land use attorney Paul Albritton had told the board at the July meeting that statistics showed that minutes of cell phone usage in Berkeley had increased between 2005 and 2006. 

“There really is hard evidence which shows that down the line cell phone lines will not work when there is a congestion,” he said.