Aquinnah agrees to settle Cingular antennae suit

By Nelson Sigelman - October 12, 2006

Following a presentation by Aquinnah town counsel Ron Rappaport Tuesday, the Aquinnah selectmen voted Tuesday night to accept an agreement intended to end lawsuits Cingular Wireless filed in state and federal court against the town.

The national digital voice and data company filed suit last November after the Aquinnah planning board denied the company permission to place three wireless antennas inside a 48-high rebuilt replica of the existing steeple on the Community Baptist Church of Gay Head.

The planning board based its rejection on the grounds that the proposal violated the town's zoning bylaws, which prohibit wireless communication facilities within 500 feet of any residence and within 1,500 feet of a playground or school. The church is close to a playground and the Aquinnah library.

The company claimed that the town's actions violated the Telecommunication Act of 1996 (TCA), a federal law that bars towns from arbitrarily rejecting an application to site a wireless facility or citing the perceived environmental or health effects of radio frequency emissions. While the law empowers cities and towns to control where the facilities are sited, town governments are not granted the right to say no to any carrier. At the same time, the burden is on the carrier to demonstrate that there is a need for coverage and to make efforts to share wireless facility sites.

Cingular argued that the denial was rooted in the supposed health effects of radio frequency emissions, and that the TCA expressly barred towns from rejecting a wireless facility site based on those grounds.

The suit described the existing church steeple as ideally suited for providing wireless service and said there would be no adverse visual impact. As an example, the company points to the use of the steeple of the Stone Church in Tisbury for an antenna.

The company also claimed that the planning board failed to underpin its decision with the applicable law and demonstrated hostility to wireless communications facilities that must be addressed by the court.

The agreement was worked out between Aquinnah town counsel Ron Rappaport and attorneys for Cingular and the Martha's Vineyard Commission (MVC), which joined the town to defend regulations encompassed by the MVC's designation of Aquinnah as a district of critical planning concern.

The MVC has also been reviewing the Cingular application as a development of regional impact (DRI). Cingular has questioned the MVC's permitting authority under the Telecommunications Act. The agreement must also be approved by the MVC.

For Aquinnah, a settlement avoids a protracted and costly lawsuit, one that the town was unlikely to win, according to those close to the negotiations. And it buys the town more time.

A key element of the agreement with Cingular is the town's ongoing effort to develop a distributed antenna system (DAS), which uses fiber optic cable and a network of short antennas, which most often are placed on telephone poles in strategic locations, to provide a wireless signal.

Last December, Aquinnah voters approved changes in the town's zoning bylaws designed to ease the way for cellular phone companies willing to use a DAS and discourage companies from erecting towers. The town's interest in DAS has attracted the attention of Chilmark and West Tisbury officials, opening up the possibility of a regional DAS system.

In a sparsely attended public hearing Tuesday night, Mr. Rappaport described the outlines of the deal crafted among the attorneys representing the three parties, in consultation with the selectmen and David Maxson of Broadcast Signal Lab, a wireless technology consultant who has been assisting the town.

Cingular currently holds a five-year renewable lease with the Gay Head Baptist Church, under which the company has agreed to pay approximately $1,500 per month for steeple space. Under the proposed agreement, Cingular would be granted a permit to place antennas in the church steeple.

If there is a commercially viable DAS system in place when the lease comes up for renewal in five years, the company agrees to switch to the DAS. The system would be presumed to be commercially viable if two or more companies are using it and Cingular's signal reaches 98 percent of the subscribers serviced using the steeple antennas.

The company would also agree not to seek any additional permits for at least one year. Mr. Rappaport said the idea was to give the town time to get the DAS system started. He said that DAS provides a legal defense under the Federal Telecommunications Act.

The town is currently exploring a regional DAS system with officials from Chilmark and West Tisbury. At a special town meeting scheduled for Oct. 24, town voters will be asked to authorize the selectmen "...to enter into a relationship with nearby towns to promote the development of a fiber optic network to support commercial wireless and public safety communications and to form a regional telecommunications enterprise district."

Although the selectmen had high praise for Mr. Rappaport, not everyone Tuesday was satisfied with the proposed settlement. Laurie Bradford, one of the leaders in the fight for the DAS alternative, urged the selectmen to continue the legal fight and expressed her determination to continue to fight Cingular's plans for the church steeple. She said that if the selectmen let Cingular into the church, it would only mean more cell towers and health risks for the community.

But selectman and planning board chairman Camille Rose told Ms. Bradford that the town could not proceed with the DAS until the lawsuit is settled. "No one was interested in talking to us until that was out of the way," she said.

Ms. Rose said the town's money would be better spent developing a DAS system than on a lawsuit the town knew it was going to lose.

Selectmen Mike Hebert agreed that, after the settlement of the lawsuit, the way will be cleared to move forward. With Jim Newman absent, the selectmen voted to accept the agreement.

Yesterday, Kate McKinnon, a spokesperson for Cingular, said she could not comment on the proposed agreement. Ms. McKinnon said that Cingular remains eager to provide more service to the residents and visitors of Martha's Vineyard.