Civic group's cell-phone lawsuit dismissed

Updated: Friday, March 12, 12:59 p.m.

A lawsuit brought by the Merrick Gables Association against the Town of Hempstead, NextG Networks of NY, Inc. and Metro PCS 144 Inc. was dismissed in a federal court in New York on Wednesday.

The civic association filed suit in August last year, claiming unconstitutional taking, fraud, breach of contract, negligence and nuisance after months of public frustration over cell-phone antennas –– and 40-foot-poles to put them on –– were installed near homes and schools on town-owned public rights of way.

The association argued that the perceived health risk of living in a home with a cell antenna nearby lowered home values, and therefore amounted to an unconstitutional taking of property for town residents who found the small brown metal boxes affixed to existing telephone poles or newly erected ones near their front lawns over the summer.

U.S. District Judge Arthur Spatt signed a decision dismissing the case that sought punitive damages in the amount of $100 million and the immediate stoppage of the installation of personal wireless service facilities like cellular telephone antennas. The judge said the Federal Telecommunications Act of 1996 prohibits towns from regulating the installation of wireless facilities based on the perception of health risk.

"NextG is pleased that the court has confirmed that the Merrick Gables [Association's] claims were meritless and inconsistent with well-established law and policy," said Patrick Ryan, NextG's vice president for government and regulatory affairs. "NextG seeks to work cooperatively with local authorities and community groups in its deployment of low-impact networks that help residents get the advanced wireless services they demand."

NextG, a company that provides cellular frequencies to cell-phone carriers using a distributed antenna system, contracted to provide service to Metro PCS in Nassau County, was granted public utility status in New York state, and as such is permitted to install cell antennas in local neighborhoods without restriction, according to the Telecommunications Act.

"The dismissal does not end the battle but demonstrates the poor representation the town provides to its citizens," said Merrick Gables Association President Derek Donnelly. "If the citizens had the proper representation from the town, they would win this suit on the merits. Instead, big money has won this phase of the struggle."

In July, the Town of Hempstead entered into a signed agreement with NextG calling for the company to voluntarily notify the town 30 days before erecting a new structure and requiring new NextG poles to be permitted by the town's Highway Department.

Susie Trenkle-Pokalsky, a Town of Hempstead spokeswoman, said, "We worked aggressively with NextG to persuade NextG to place communications boxes in locations that would be least objectionable to neighbors prior to the lawsuit, and we will continue to do that."

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