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AT&T Sues Albany Over Council Decision on Cell Tower

The wireless service provider filed a lawsuit on Wednesday against the city for prohibiting the company from mounting new cell phone antennas on the rooftop of a San Pablo building.

Whether AT&T Wireless should be allowed to install new cell phone antennas on a San Pablo Avenue rooftop is now a question for federal court.

AT&T filed a lawsuit against Albany on Wednesday in response to the to deny the company's plans to improve cell phone service in the city.

AT&T is requesting a court order that would require the city to grant the company's application to construct new antennas on the rooftop at 1035 San Pablo Ave.

AT&T and city officials have not responded to requests for comment yet.

According to the formal complaint (attached as a PDF to the right), AT&T claims that the council's decision "effectively prohibited AT&T from closing a significant service coverage gap in the City," which violated the Telecommunications Act of 1996.

AT&T also points to the fact that the rooftop that it wants to use already has Sprint antennas.

See all of Albany Patch's cell tower coverage. 

"By denying AT&T's Application even though Sprint was allowed to install its facility on the rooftop of the Site, the City is discriminating against AT&T," the complaint states.

AT&T chose that specific San Pablo rooftop because of a section in Albany's municipal code that mandates new wireless communication facilities be co-located with existing facilities whenever possible, according to the complaint.

But the Planning & Zoning Commission , and again in May. The commissioners cited the city's rules about rooftop coverage as the reason for the denial, saying there was not enough room on the building's roof.

AT&T appealed to the City Council, . Before the second meeting, AT&T submitted revised plans that the company argued would have met the rooftop requirements.

But city officials said it was too little, too late, and in a split 3-2 vote the council upheld the planning commission's decision.

In the formal complaint, AT&T argues that the council's decision was not supported by substantial evidence, pointing to the contradiction between the city's co-location mandate and its rooftop coverage limitations.

AT&T also claims the City Council relied on public concerns about radio frequency emissions——in making its decision, which violates the Telecommunications Act.

AT&T's efforts over the last four years to install new cell phone antennas in Albany have elicited passionate responses from both and .

Several residents feared the City Council's decision in July would lead to a lawsuit.

AT&T has requested an expedited review of the case, though that request has not yet been granted.

Michael Barnes August 16, 2012 at 09:25 PM
Can't say I'm surprised. Now that the city has effectively lost the Verizon lawsuit, I think the city should be able to tell us soon how much that effort cost. I doubt if the AT&T lawsuit will be any cheaper.
Tony Caine August 16, 2012 at 11:17 PM
I am reminded of this famous New Yorker cover: http://bigthink.com/strange-maps/72-the-world-as-seen-from-new-yorks-9th-avenue except substitute Albany for Manhattan. I think the powers that be in Albany will be shocked when the courts decide in favor of AT&T.
Tod Abbott August 16, 2012 at 11:20 PM
Agreed. And now we know where the revenue from the new sales tax will go (should it be successful in November).
What Thuh August 16, 2012 at 11:26 PM
This is what scabs my @š$ raw! AT&Terrible can sue anybody all day long but you cant sue att! Whats wrong with that picturex
David Sanger August 17, 2012 at 12:01 AM
This is not surprising at all after the continued obstructionism of a small group of opponents. Hopefully the City will settle quickly out of court so that the 5000+ AT&T customers in Albany can get better wireless service.
Doug Donaldson August 17, 2012 at 01:18 AM
Oh Great . . . It was easy to see this coming -- and I think AT&T may be able to make a good case in court. Because of our disfunctional and over-reaching wireless ordinance, AT&T has apparently decided that court action is the only way they will be able to meet their Federally mandated license obligations to provide adequate wireless service to customers in Albany. I wonder how much we will have to spend to defend this lawsuit? I hope the Counci l settles immediately and lets them go ahead and put the proposed antennas on top of 1035 San Pablo. The Zoning issues are truly minor and certainly not worth fighting over.
just me! August 17, 2012 at 02:17 AM
AT&T can put the tower on my house! ;)
Al Streit August 17, 2012 at 03:42 AM
As an Albany resident, homeowner, and taxpayer for the past 35 years, and an AT&T customer for about the same time, I have mixed feelings. But whereas the city council of Albany (or at least 3 of 5 its members) doesn't give a damn about me, it's heartening to see that, at the very least, my cell provider does!
Clay Larson August 17, 2012 at 03:54 AM
Albany didn’t “effectively lose" the lawsuit. Both parties settled. The language of Section 6409 of the Middle Class Tax Relief/Job Creation Act captured the specific facts of the Verizon application in Albany. It’s reasonable to conclude law before these changes didn’t give the cable companies the authority to make any modification that doesn’t substantially change the physical dimensions of the wireless facility. Otherwise, there would be no need for the new law. I think that Albany would have prevailed in the Verizon suit, which would have been based on the law in effect at the time of the City’s decision.
Tony Caine August 17, 2012 at 04:02 AM
So what were the terms of the settlement. Does Verizon get to increase their antennae?
Michael Barnes August 17, 2012 at 06:49 AM
Tony, Clay might want to put his own spin on this, but my recollection is that Verizon wanted to upgrade the antennas on the ugly monopole near Al's Burgers just south of El Cerrito. Most providers are switching to a new standard called LTE that operates in the old UHF TV range. That requires new antennas. Since Verizon agreed to use an antenna setup that looked like the old one, Planning and Zoning approved the swap. But city council reversed P&Z, and Verizon sued. The lawsuit settlement required P&Z to do it over again in the light of a new federal law which basically says P&Z has to allow such antenna upgrades. So the federal law makes P&Z do what it had already agreed to do before. But this time council did not take up the appeal on the advice of their attorney. I'm still trying to get the cost figures for the lawsuit, which was a total waste of time in my opinion. P&Z got it right the first time, and if council would have butted out, we'd have more money in our limited city treasury.
Alan Riffer August 17, 2012 at 07:11 AM
My take is that it is a win-win situation. Verizon gets the ability to provide the new service. The City gets to say that the new federal law made it necessary to approve the permit. The angels-on-the-head-of-a-pin argument as to whether Verizon wanted an upgrade or to do maintenance won't happen again becaause this settlement will be a precedent for the application of the law. Who would have won the suit if the law hadn't changed? No way of knowing.
Tony Caine August 17, 2012 at 02:41 PM
But if you dig down to to what is really going on: i.e. the city council wanted to drive Verizon off its ugly pole and play savior to those who freak out whenever radiation is mentioned, the city lost on all counts.
Senior A. Titude August 17, 2012 at 03:26 PM
City = 2 (cost of landline due to lack of cell service; cost of lawsuit) AT&T = 1 (cost of monthly service never received) Me = 0
Michael Barnes August 17, 2012 at 04:48 PM
Senior, Make it city = 3 because the city charges a user utility tax on you cell phone of 3 percent, even if the city's policies prevent your cell phone from working. But remember that AT&T has spent thousands of dollars of staff and engineering time on this proposal to attempt to get you the service that you pay for.
Tatter Salad August 17, 2012 at 05:38 PM
Why can't the antenna(s) be placed atop Albany Hill? The City would make the income; the only limitation would be the antennas should simulate Eucalyptus. Oh wait, the City only sells land up there to the Christian (far right) so they can mount their very poorly maintained crucifix.
Tony Caine August 17, 2012 at 05:44 PM
In principle it could be done. The problem is that the farther the antennas are located from the user the harder the user's transmitter has to work to communicate.with the tower. The means more radiation directly to the head. Personally I think all the studies and science I have seen say that microwave radiation does not cause cancer but many people do worry about it. There has been no significant increase in brain cancer in the past twenty years, possibly a slight decrease.
Michael Barnes August 17, 2012 at 06:26 PM
Tony, Yes, I agree. The public heath community's main concern in the RF transmitter next to your brain, and/or reducing its power or getting it away from your head. Other issues: Albany Hill is a park, and putting antennas there would require modifications of our cell ordinance (at least). Plus given the way cell phones reuse frequencies in non-adjacents "cells," vectoring a signal from far away requires directional antennas to avoid interference. It can be done, it's just not a great solution. The obvious solution is to duplicate the success of the cell installations on our private high school (St. Mary's has three) on our public high school (which could also use the revenue). That would also require modifying our city's cell ordinance, but is technically a much better idea.
Alan Eckert August 17, 2012 at 06:43 PM
Jeff Bond and P&Z wouldn't allow it. You're not the first person who would be willing to do this!
B August 18, 2012 at 09:54 PM
I totally agree.
Erika Lockhart August 19, 2012 at 08:12 PM
Me, too! My cell phone only works, sometimes, if I stand in the middle of my street!
David Sanger August 19, 2012 at 08:34 PM
Developing a public facility on Albany Hill is a lot more complicated than it seems at first glance: 1) Parks are not an approved zone so the Wireless Ordinance would need to be modified 2) an EIR would certainly be required, adding at least 6 months 3) we already have a Master Plan for Albany Hill that does not include a wireless tower 4) the City is not allowed to to require that a carrier use a city facility and 5) Carriers locate their facilities to provide the best coverage and there's no guarantee they'd select a hillside facility.
Senior A. Titude August 19, 2012 at 09:33 PM
Thanks Michael, for the info. Not sure I should pay a "user" tax when I can't "use" my cell. Consider my scorecard amended to reflect I am even more of a loser :-( Thanks a lot, Albany ლ(`ー´ლ)
Tony Caine August 19, 2012 at 11:13 PM
Maybe AT&T should market their product to streetwalkers.
Ross Stapleton-Gray August 21, 2012 at 01:27 PM
Interesting wrinkle in cell phone saga: AT&T towers in Oakland disrupting OPD communications: http://www.sfgate.com/crime/article/Oakland-police-radio-culprit-cell-towers-3802585.php
David Sanger August 22, 2012 at 04:02 AM
seems like the older 850MHz frequency "The company temporarily shut down the 850 MHz frequency for 2G customers. The 2G network is the company's oldest, meaning relatively few customers would be affected, Britton said. Those on 2G are using some of the company's oldest phones and would still be supported in the affected areas on the 1900 MHz frequency. "The company temporarily shut down the 850 MHz frequency for 2G customers. The 2G network is the company's oldest, meaning relatively few customers would be affected..... Those on 2G are using some of the company's oldest phones and would still be supported in the affected areas on the 1900 MHz frequency."
Chris September 04, 2012 at 09:13 PM
so how long will this lawsuit take to get improved AT&T coverge to Albany? 3 months? 6 months? 1 yr?
David Sanger September 04, 2012 at 10:19 PM
That's nonsense. People sue AT&T all the time. Why do you want to sue AT&T?
David Sanger September 04, 2012 at 10:26 PM
Here's the letter from the Verizon case. In contrast to Clay's statement I think it's fair to say Albany lost and Verizon won, though no doubt some of the pressure to settle came from the Middle Class Tax Relief Act 2012 which preempted local control over collocations. http://www.scribd.com/doc/104919685/Settlement-Letter-Verizon-vs-City-of-Albany
David Sanger May 18, 2013 at 06:47 PM
to answer @Chris's question it looks like the facility will be up by the end of the year.

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