6th Circuit Upholds Ruling Dismissing Kentucky Residents Complaint Against Cell Tower
A federal appeals court Monday upheld a lower court ruling, dismissing a complaint brought by several Kentucky residents that a cellphone tower being built near their homes was a nuisance, harmed their health and devalued their properties. The 6th U.S.…
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Circuit Court of Appeals also affirmed a ruling by U.S. District Court in Lexington to deny the residents' request to amend their complaint against New Cingular Wireless, doing business as AT&T Mobility. In the 3-0 opinion (in Pacer) written by Judge Deborah Cook, AT&T applied to build a 125-foot tower, which several residents said would spoil the view from their property, disturb the neighborhood's character, endanger health and safety and depress home values. The local planning commission granted AT&T's application for the site permit, leading the residents to appeal to the Fayette County Circuit Court, which dismissed it. While that decision is being appealed, residents brought a second lawsuit in state court, which was moved to the district court where AT&T sought dismissal. The district court dismissed the residents' claims based on several reasons, including that the 1996 Telecom Act "impliedly preempts" RF emission claims that comply with FCC standards and "residents have not alleged facts sufficient to sustain their tort claims." Among other arguments, the opinion said residents suffered no actual damage and that residents had "ample opportunity to amend" the complaint but didn't. "We believe the Planning Commission’s decision to grant a permit was correct, and we are pleased with the Court’s decision," an AT&T spokesman emailed.