WHEELING – AT&T has sued Wheeling after the city denied its application to construct a wireless telecommunications tower.
AT&T Mobility filed its complaint in federal court June 11 against the city.
“AT&T Mobility improves wireless telecommunications by developing its network, owning wireless telecommunications facilities, and providing wireless services through its network and facilities,” the complaint states. “AT&T Mobility seeks to fill significant gaps in its network’s wireless coverage and capacity to allow it to deliver the latest available wireless telecommunications technology to its customers, which benefits citizens, businesses and state and local governments nationwide by providing improved cellular coverage, capacity, and service quality.
“AT&T Mobility also benefits local communities, including the city, by building out and providing support for FirstNet, a single, interoperable network for public safety agencies and first responders established by Congress and operated by AT&T.”
The company says it submitted the application to build a new tower to fill a gap in wireless coverage near National Road and Bethany Pike. That area includes Wheeling College, areas along W.Va. 88 and Interstate 40 as well as the residential areas of Edgewood and Woodsdale.
It says the city denied the application based on “vague and unsupported allegations that the proposed facility ‘goes against the character of the community.’”
AT&T seeks an expedited judgment requiring the city to permit the building of the tower, claiming Wheeling’s actions violated the Communications Act of 1934, as amended by the Telecommunications Act of 1996.
AT&T says the TCA governs federal, state and local government regulation of development of personal wireless service facilities to “make available, so far as possible, to all the people of the United States … a rapid, efficient, nationwide and worldwide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications.”
It says the TCA is meant to reduce barriers local governments impose to defeat or delay the installation of wireless communications facilities and protects against irrational, unsupported or unsubstantiated decisions by local authorities.
“In enacting the TCA, Congress considered the potential conflict between state and local governmental regulation of the placement and aesthetic effects of wireless telecommunications facilities and the national need for rapid deployment of economical and effective wireless services,” the complaint states. “The TCA imposes significant restraints on local governmental actions that might limit the provision of wireless telecommunications services, while preserving state and local governmental authority over decisions regarding the “placement, construction, and modification of wireless facilities.”
AT&T says the TCA specifically provides that state and local governing entities’ actions cannot prohibit or effectively prohibit wireless providers from providing service.
AT&T says the owners of the tract of land where it wants to build the tower were willing to and entered into a lease to allow the development. It submitted its application to the city on January 7. On March 11, 2024, the decision on the issue as postponed after a commission member had questions regarding radio frequency emissions, Federal Aviation Administration regulations and screening.
On April 8, city officials voted against the construction of the tower.
“Denial of the application constitutes a prohibition or an effective prohibition of wireless services because defendants have denied AT&T Mobility the ability to provide needed improvements to wireless telecommunications networks in the city,” AT&T states in its complaint
It says the city failed to comply with the supported by substantial evidence requirement of the TCA, adding the company addressed all of the grounds for approval of the application. It also says the city never informed AT&T that the application was incomplete or that it failed to comply with the Telecommunications Ordinance.
AT&T also says the city’s own outside expert confirmed that application complied with the Telecommunications Ordinance, that AT&T Mobility demonstrated a need for the new facility and recommended approval of the application.
It also accuses the city of unlawful prohibition of the TCA provision of personal wireless service.
AT&T seeks an injunction saying Wheeling violated the TCA and an order granting the application and issuing all permits and approvals necessary to build the tower.
District Judge John Preston Bailey already has granted AT&T’s motion for an expedited hearing, scheduling it for July 29.
AT&T is being represented by R. Andrew Hutchinson of Baker Donelson Bearman Caldwell & Berkowitz of Johnson City, Tennessee.
U.S. District Court for the Northern District of West Virginia case number 5:24-cv-106