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Item in The Northwest Current, 11/6/02

Appeals court tosses out tower company lawsuit

Elizabeth Wiener

A U.S. appeals court last week firmly--and swiftly--rejected the American Tower Co.'s attempt to make a federal case out of the city's decision two years ago to revoke building permits for a 756-foot telecommunications tower in Tenleytown.

The U.S. Court of Appeals for the D.C. Circuit, in a brief unpublished decision, upheld a lower court ruling that the city's action did not deny the company due process, and also did not violate a federal law aimed at promoting construction of wireless cell phone towers.

"The District's decision to rescind the building permit was not unreasonable, but aimed at promoting legitimate governmental purposes," such as zoning restrictions on towers and a limit on height that covers structures citywide, the three-judge panel said.

The judges also noted that the "primary purpose of the tower--and reason for its height" is high-definition television broadcasting, which is not protected by the federal telecommunications act.

The ruling came less than two weeks after the oral arguments, an unexpectedly short deliberation, observers said. American Tower had argued the city issued proper building permits, then revoked them under political pressure after the tower was half-built.

The tower case now returns to D.C. Superior Court, where American Tower has also filed suit against the city. But the stakes are smaller--$150 million in damages vs. the $250 million sought in the federal claim--and the issues to be argued are more prosaic, revolving around local zoning and height limits rather than constitutional claims.

An attorney for American Tower said only that the company has made no decision about continuing its appeal in federal court.

A spokesperson for the city's Office of the Corporation Counsel, Peter Lavallee, was also restrained, saying only that his office is "pleased" with the ruling. "This, obviously, is a big one," he said.

Lavallee said also that city attorneys are seeking dismissal of the Superior Court suit, although Judge Natalia Combs Greene has not yet ruled on their motion.

But Timothy Cooper, a local voting rights advocate who helped lead the fight against the tower, was ecstatic. "This is extraordinarily good news," he said. The tower company "can still try to mess around [in local court] with zoning and other issues, but the $250 million suit is dead," Cooper said.

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