Subject: [NEXTEL-1] Judge sides with Nextel in cell case

From: Marcel <[email-masked]>
Date: Fri, 29 Nov 2002 18:38:49 -0500

http://www.boston.com/dailyglobe2/333/metro/Judge_sides_with_Nextel_in_cell_case+.shtml
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WAYLAND

Judge sides with Nextel in cell case

Town is found in violation of federal provisions

By Scott W. Helman, Globe Staff Correspondent, 11/29/2002

extel Communications, the wireless carrier trying for years to address a coverage gap in town, has won a significant victory in federal court against Wayland, a community that, according to a federal judge, has shown ''hostility'' toward the company's efforts to install cellular antennae.

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In granting Nextel's request for summary judgment, US District Judge Robert E. Keeton found that Wayland violated provisions of the federal Telecommunications Act of 1996, which limits the powers of municipalities to regulate the construction of cellular structures by wireless companies.

''The undisputed evidence,'' Keeton's decision reads, ''shows repeated delays and denials that, when viewed in aggregate, demonstrate the town's hostility towards Nextel.''

The company has, Keeton continued, ''met its heavy burden of showing the town's hostility, and therefore that any further efforts would be so likely to be fruitless, that it is futile to even try. The town has presented no convincing arguments to the contrary.''

The company filed the suit in federal court earlier this year after Wayland's Zoning Board of Appeals voted in January to deny Nextel's application to install cellular antennae atop a 97-foot Boston Edison Electric Co. transmission tower on Boston Post Road.

Nextel has been trying to build a cellular structure in Wayland since 1994, but its efforts have been frustrated by what the company - and Keeton - says have been stalling measures on the part of the town.

''We're pleased with [the decision] and feel that this really is the best location for this site, both for Nextel and the community,'' said company spokesman John Redman. ''In our opinion, we feel that there was an area where we could improve coverage, and our primary responsibility is to our subscribers. That's why we began this entire process.''

Jeff Ritter, Wayland's executive secretary, said the Board of Selectmen, which discussed the case in executive session this week, has not yet formulated a response to the decision.

''We are disappointed that Judge Keeton chose to side with Nextel in this case, but we believe we proffered an aggressive defense on behalf of the town and the Zoning Board of Appeals,'' Selectman Brian O'Herlihy said in a statement. ''The board felt, and continues to feel, it was important to defend the town's wireless communications bylaw.''

Keeton's opinion, issued Friday, is expected to result in a formal order early next year requiring Wayland to allow Nextel to construct the antennae, according to the company's attorney, Steven E. Grill. Once the order is formalized, Grill said, Wayland, presently home to no cell towers, would then have a 30-day window in which to file an appeal.

Redman couldn't say for sure whether Nextel's proposed cell structure in Wayland, if built, would completely satisfy the company's wireless needs in the town and the surrounding area. He said the company did not have any applications pending in the vicinity at the moment, but that could change.

Nextel has expressed a particular desire to reach the center of Wayland, through which run the busy commuter thoroughfares of routes 20, 27, and 126. The company also has considered erecting a cellular structure in neighboring Weston, according to court documents.

Wayland has put out requests for proposals for some town-owned land in its Wireless Overlay District, which runs along the western stretch of Route 20, but the town has received no takers, Ritter said. There are currently no cell towers in town and no other formal applications pending.

''Plainly this is not a town where it has been easy to provide service, and hopefully that will change,'' Grill said.

Ritter said the town's current Wireless Overlay District, which has gone through several iterations in recent years, provides good coverage for wireless companies. Planning Board chairman George Ives said there are no current plans to modify the district.

Scott W. Helman can be reached at [email-masked] or at 508-820-4230.

This story ran on page B2 of the Boston Globe on 11/29/2002.

© Copyright 2002 Globe Newspaper Company.

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