Wheeling Planning Commission members listen during a meeting earlier this year during which a special use permit application by AT&T for a cell tower was discussed. (File Photo)

WHEELING – AT&T has filed suit against the City of Wheeling and the city’s planning commission for their “unlawful denial” of AT&T’s application to construct a wireless telecommunications facility. Meanwhile, Wheeling’s city manager said the sides are looking at a possible compromise.

In the complaint filed in federal court June 11, AT&T states that the city’s denial of its application to construct a wireless services facility violates the Telecommunications Act of 1934, as amended by the Telecommunications Act of 1996.

The TCA governs state, federal, and local government regulations regarding the development of personal wireless service facilities. The plaintiff describes the purpose of the TCA as to make a “rapid, efficient, Nationwide and world-wide wire and radio communications service with adequate facilities of reasonable charges.”

At an April 8 meeting, the planning commission voted 5-2 to deny AT&T the permit to build the cellular tower near the Augusta Levy Learning Center. AT&T outlines that the TCA requires that state and local governing bodies write a denial of a request to construct a wireless services facility “supported by substantial evidence in written record.”

“Mere generalized concerns about aesthetics and property values, or similar ‘not in my back yard’ arguments do not constitute substantial evidence under the TCA,” the complaint states.

AT&T says that the company constructs towers and other wireless facilities to “advance the national policies of the TCA established by 47 U.S.C. § 151 and the Federal Communications Commission.”

While he would not comment on the litigation, Wheeling City Manager Robert Herron said there have been “discussions” between the city’s legal counsel and AT&T’s legal counsel regarding a “potential compromise that could be submitted to the planning commission.”

With this alleged violation of the TCA committed by the city by blocking the construction of the cell tower, AT&T outlines the telecommunications company is “entitled to an order directing the City to grant AT&T’s application and issue all necessary permits that will allow for the development of the proposed facility.”

AT&T seeks to require the city to permit the building of the telecommunications facility that will “fill a significant gap in cellular phone coverage and capacity in the City.” The “significant gap” AT&T seeks to fill includes wireless coverage near National Road and Bethany Pike, which includes Wheeling University, the residential areas of Edgewood and Woodsdale and areas along W.Va. 88 and National Road.

AT&T describes the company’s application to build the tower as being in compliance with “all applicable requirements established by the City.”

“Both the City’s third-party expert and the City’s zoning staff recommended approval of AT&T Mobility application,” the complaint states. “The City’s denial of AT&T’s application was not supported by substantial evidence in a written record and effectively prohibits the provision of personal wireless services in the vicinity of the proposed facility.”

The plaintiff states that AT&T was “never provided with notice that the Application was incomplete, deficient or otherwise failed to meet the requirements of the Telecommunications Ordinance before any hearings on the Application were held by the Commission.”

According to the plaintiff, the owners of the proposed tract of land where the tower and supporting equipment would be located did enter into a lease to allow the development of the proposed facility. The proposed tower would be 85 feet tall with a 4-foot lightning rod and would be located “in a dense stand of trees to minimize its visibility to the surrounding area.”

AT&T then drew attention to a hearing held by the City of Wheeling Planning Commission on March 11. During the meeting, two citizens spoke out in opposition to the application to build the tower due to questions regarding radio frequency emissions, Federal Aviation Administration regulations and screening.

AT&T then states their counters for each concern, which they originally gave to the Wheeling Planning Commission through its agent, the GDP Group, on April 2.

Concerning radio frequency emissions, AT&T states that the company is regulated by the Federal Communication Commission. They outline to the commission that radio frequency emissions “could not be used as a basis to deny the Application” due to AT&T’s compliance with FCC regulations.

Regarding FAA regulations, AT&T confirms that “given the height and location of the proposed tower,” registration and filing with the FAA was not required.

Concerning general screening information, AT&T states this was provided and that alternative sites “were not feasible and would not be any less visually obtrusive.”

AT&T states that after the second meeting held by the City of Wheeling Planning Commission on April 8 regarding the telecommunications tower, the company was not provided with “any notice” that alleged information was missing or that the application it submitted “failed to comply with the Telecommunications Ordinance.”

“In denying the Application, the Commission did not rely on any evidence and did not find that the Application failed to comply with the Telecommunications Ordinance,” the plaintiff states.

In the filing, AT&T requested an expedited hearing on the matter, which was granted by U.S. District Judge John Preston Bailey. The hearing will take place on July 29, and AT&T will be represented by R. Andrew Hutchinson from the Tennessee law firm Baker Donelson Bearman Caldwell & Berkowitz.

AT&T also requests in the filing that an injunction be issued holding the city and the Wheeling Planning Commission violated the TCA and issue “all permits and approvals necessary” to allow the construction of the telecommunications tower at the proposed location.