Nebraska Village Sued For Denying Wireless Communications Facility Permit

On Wednesday, New Cingular Wireless PCS, LLC, doing business as AT&T Mobility filed a complaint against the Village of Palmyra, Nebraska, in the District of Nebraska for allegedly unlawfully denying the plaintiff’s “Application For Conditional Use Permit – Tower Development Permit (‘Application’) for a wireless communications facility siting request by the Board of Trustees of the Village of Palmyra, Nebraska (the ‘Board’).”

According to the complaint, the Telecommunications Act of 1996 (the Telecommunications Act) “preempts State and local decisions that ‘prohibit or have the effect of prohibiting the provision of personal wireless services’ and requires that State and local decisions denying requests to place personal wireless service facilities, such as cell towers, be supported by substantial evidence contain in a written record.” However, the Board purportedly violated the Telecommunications Act by denying AT&T’s application for permission to construct a 320-foot wireless communications tower with “ground equipment and fencing (the ‘Facility’)” at a specific site in the village.

AT&T asserted that it seeks to “install the Facility at the Site in order to remedy a significant and substantial gap in its personal wireless service coverage in the area.” AT&T argued that it considered many possible locations for the proposed Facility, “but each of the alternatives proved infeasible,” as a result, the proposed Site location is allegedly the only feasible option to resolve the coverage gap. AT&T claimed that the Board’s denial of its application, which prohibits or in effect prohibits AT&T’s personal wireless services provision, “was not based on substantial evidence contained in a written record” as required by law. As a result, AT&T contended that this conduct violates the Telecommunications Act.

AT&T has sought an expedited review of the matter, declaratory judgment in its favor, an order requiring the Board to approve the Application and to authorize AT&T to install its proposed Facility at the Site, and other relief.

AT&T is represented by Brooks, Pansing Brooks, PC, LLO.