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North Georgia city extends moratorium on telecom fee
Attorney cites case against Liberty Co.
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A North Georgia city last week extended a moratorium on its own communication tower and antenna site registration and renewal fee in response to pending litigation in Liberty County.

The Milton City Council voted unanimously to extend a six-month moratorium on its own $1,000 annual fee for the devices during an April 9 meeting, from which video footage is posted online.

During the meeting, Milton City Attorney Ken Jarrard cited the Liberty County case when recommending that the council extend the moratorium.

The suit was filed Dec. 17, 2010, in the Superior Court of Liberty County. According to the suit, the plaintiffs are seeking a declaratory judgment and compensatory damages from the county for an ordinance that is “in violation of Georgia law.”

The suit lists 10 plaintiffs who own or operate telecommunications devices within the county: American Tower L.P.; American Towers Inc.; American Tower Sub LLC; T-Mobile South LLC; Crown Castle South LLC; Crown Castle PT Inc.; Pinnacle Towers LLC; SBA Structures Inc.; SBA Towers II LLC; and SBA Properties Inc.

The ordinance in question, called “Liberty County Ordinance Number 2010-004/Operating Permit and Registration of Telecommunication Towers and Antennas,” was enacted in June 2010 and requires a $1,000 annual registration fee for each telecommunications tower and antenna site.

The suit alleges that the $1,000 fee “does not reasonably approximate the actual costs incurred by Liberty County relating to the communication towers and antenna sites, but it’s intended as a revenue generation program for Liberty County.”

According to Georgia Code section 48-13-9(a), local governments may require businesses to pay a regulatory fee only if the local government customarily performs investigations of such businesses to protect public health, safety or welfare or in the course of enforcing a state or local building, health or safety code.  The code also says that “no local government is authorized to use regulatory fees as a means of raising revenue for general purposes.”

Speaking to the Milton City Council, Jarrard explained that Milton’s ordinance was enacted on recommendation from consultants, who said the fee would help absorb administration costs, such as those required for tax assessors to analyze the potential revenue stream for a piece of property with such a tower. The fee also aims to keep current inventory of such devices.

“In the meantime, we found out that a similar sort of regulatory construct in Liberty County, Ga., was the subject of litigation …,” he said. “Needless to say, the tower companies that were being regulated were not terribly excited about having to pay this $1,000-a-year annual renewal and inspection fee.”

As a result of the litigation, the Milton council issued a nine-month moratorium on the annual fee component of the telecommunication-tower ordinance. It was to run through April 6 or until the Liberty County case was resolved.

“The Liberty County case is not resolved …,” he said. “In fact, in our discussions, the Liberty County attorney indicated that they are, in fact, attempting to modify their code to take out that provision — in which case, they believe that will moot many of the issues in litigation, and it will therefore resolve.”

Because it appears Liberty County may move away from the $1,000 fee, Jarrard said the Milton City Council should consider whether it should do the same.

He recommended they extend the moratorium for an additional six-month period, during which time he could assess the city’s options in lieu of the current regulation.

“I’m not getting any clear legal guidance from Liberty County … What we were hoping to get would be an actual ruling, but what I think we’re getting is a modification of the code, which doesn’t tell me whether or not they were going to prevail,” Jarrard said.

Liberty County Attorney Kelly Davis said Monday that no proposed revisions have been presented to the board of commissioners, but he anticipates the matter will be discussed soon.

“The County is currently evaluating the results of the telecommunication device inventory and report compiled by CH2M Hill pursuant to the ordinance, and determining what revisions might be appropriate to better reflect the County’s regulatory intentions and ensure that the annual permitting and inspection program is both practical and effective,” Davis said.

When asked about the suit and when a move is anticipated, Liberty County Administrator Joey Brown said he has a limited ability to comment on legal matters.

“All I can really say is that we have temporarily suspended requirements of the ordinance until such time as the matter is settled,” Brown said.    

Attorneys for the plaintiffs were not available at press time.

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