A telecommunications company has sued the Forest Service over the agency’s refusal to provide the company with a permit to construct a tower on the Santa Fe National Forest. The agency denied the permit because the applicant was able to lease space on another existing tower at the site owned by a competitor of the company which had additional available capacity. The company, however, asserted that the Telecommunications Act applied to the Forest Service’s action and the agency had violated that statute by not issuing the company a permit to construct its own tower.
The Forest Service’s decision was based on the fact that the current permit required the existing tower owner to house other tenants on its tower and that the agency would not issue new permits until the tower reached full capacity. The agency stated that the existing permit was issued pursuant to a competitive prospectus in 1984. The agency also asserted that the requirement that the existing tower be full before any new towers were built was intended to prevent a proliferation of towers.
The company, however, argued that no rules required the agency to take this position and that the position was contrary to the Telecommunications Act because it discriminated against the company and prohibited telecommunications service. It also pointed out that other towers had been built at the site since its competitor’s tower was constructed, which contradicted the claim that the competitor’s tower had to be at full capacity before other towers could be built. The applicant further claimed that the rental fees being charged by the existing tower owner were excessive and prohibitive.