Homeowners Fight Back, City Gives In
Burbank, California thought
it was leading the way when it adopted a “Wireless Telecom-munications
Facilities” ordinance in 2011. Unfortunately:
There is no such thing as a Wireless Telecommunications
Facility. The correct term is “personal wireless service facility.”
The ordinance permitted wireless deployment in R-1
neighborhoods, but the neighbors were not part of the adoption process.
Burbank has a General (Comprehensive) Plan, but the City never
referred to it while adopting the ordinance.
No wonder, then, that the
homeowners in the area of the very first proposal by T-Mobile in an R-1
neighborhood went ballistic when they heard that the cell site was proposed
to be located on a church in their residential neighborhood.
Figure 1: The cupola proposed by T-Mobile. Not only is the church’s
steeple dominated by a faux tower, but the entire church seems overwhelmed.
Worst of all, this was proposed in a neighborhood of single-story homes.
The homeowners weren’t buying it.
drawing: City of Burbank.
What? You Have Never
Seen a Shopping Center Tower on a Church?
Burbank is a residential city,
even though Disney, NBC and ABC have major presences there. The owners of
small lot, single-story homes around the church were outraged to find – at
the last minute – that T-Mobile wanted to place a high cupola on the
two-story church, as shown in Figure 1. The neighbors went to the Planning
Board meeting claiming they had not be properly noticed and requested an
opportunity to plan a response to the T-Mobile application.
The Planning Board Approved the Project
The Planning Board was not
receptive to the neighbors. This was the City’s first chance to show the
wireless industry that carriers may enter residential neighborhoods with
What the Planning Board
approved was, in effect, a third story for antennas and equipment on top of
a non-residential use in a neighborhood of small one-story homes with
occasional second-story additions. T-Mobile called its proposed third story
an “architectural fixture.” Kreines & Kreines, Inc. calls it a commercial
room, with four walls, a roof, a door and a floor.
As if that weren’t enough,
when the residents went to the Community Development office to check the
T-Mobile plans for the project, the senior planner-in-charge “threatened to
evict my dad and me from the Planning Department,” according to a neighbor.
A member of the Community Development Department told a neighbor that, “if
we don’t like the Planning Board decision we could appeal and then sue
T-Mobile.” (If the homeowners had lost, they would have had to sue the
City, not T-Mobile.)
The Neighbors Call Kreines & Kreines, Inc.
Upon being retained, Kreines
& Kreines, Inc. were sent 60 pounds of documents. What Kreines & Kreines,
Inc. found in the T-Mobile application were inconsistencies, flaws and
errors. The Burbank staff report didn’t mention any of these problems,
The church had a use variance which limits
the property to “religious purposes.”
Dimensionally, the church was non-compliant
in the front yard, the side yard and height, not to mention a Floor Area
Ratio (FAR) exceedance.
The side yard (with a wall) may have
encroached on a neighbor’s lot by several feet.
Kreines & Kreines, Inc. wrote
a critical analysis of the application that the project’s neighbors quoted
from at the City Council hearing on the neighbors’ appeal of the Planning
Board’s approval of the project.
On February 23, 2012, the
U.S. Congress passed the Middle Class Tax Relief and Job Creation Act of
2012. Buried deep within this new statute is language that substantially
changes the Telecommunications Act of 1996. Section 6409 of that act is
entitled “Wireless Facilities Deployment.” Subsection (1) of that section
reads in part:
… a State or local government may not deny, and shall
approve, any eligible facilities request for a modification of an existing
wireless tower or base station that does not substantially change the
physical dimensions of such tower or base station.
What this new law means is
that any existing personal wireless service facility can have a second
personal wireless service facility added to it, without a city having an
opportunity to deny the addition.
The Planning Board had
already established that the 11-foot 6 inch high cupola does not
substantially change the Chapel’s physical dimensions. Based on the
Planning Board’s analysis, the next 11 feet, 6 inches will have even less of
an impact. And once a co-location is established, a third carrier can come
along and make the project site into a tri-location.
How could the City know if
T-Mobile intends to sublease space at the Chapel to add other carriers to
the site to create a tri-location? T-Mobile asked the FCC for an Antenna
Structure Registration with an overall height of 19.7 meters, or 64.6 feet
high, more than enough for three separate antenna arrays, each on top of the
According to the neighbors,
sitting at the applicant’s table with T-Mobile during the appeal hearing,
were representatives of Verizon and AT&T. Coincidence? Kreines & Kreines,
Inc. believes they were interested in co-locating at the church site with
“Our Hands are Tied”
On appeal by the neighbors,
the City Council was worried.
Questions arose, such as the
“shot clock” by FCC, with the City arguing that the project had to be
approved now, or the 150-day deadline will pass. The truth was that the
proposed project had been under consideration by the City for three years.
Some of the members of the
City Council told the neighbors that the City’s “hands are tied.” They said
they had to approve the project.
The homeowners in the
neighbored filled the City Hall and spilled out to the street at the appeal
hearing. There were musicians, pickets and speakers.
The T-Mobile representative
(not the same consultant who worked on the project at its inception) dug the
hole he was in deeper. He admitted mistakes and offered to fix them during
the appeal hearing. An appeal is not an opportunity to revise. The
proposed project is either approved or it isn’t.
The City Council voted 5 to 0
to uphold the appeal and deny the T-Mobile project.
Neighborhood Association Alert! Your Residential Area is Next
The wireless carriers need to
install antennas and equipment in all residential areas. Cell sites that
once were going to be spaced every quarter-mile are now going to be on every
block. These are the trends:
Most local governments (there are
exceptions) are scared of a carrier lawsuit.
Many people characterize neighbors who
fight back against wireless carriers as “NIMBYs.”
Carriers outsource the application process
to roving teams of consultants.
Carriers’ consultants often don’t prepare
very good applications.
Many local government staff personnel don’t
scrutinize a wireless application.
By the time the proposed
project gets to a public hearing, the neighbors are marginalized before they
even speak out. The project is often approved and the “NIMBYs” are left
with the feeling that a deal was made and they weren’t part of it.
How Does Kreines & Kreines, Inc. Turn These Situations Around and Win for
Kreines & Kreines, Inc. is not
a law firm. We are planners who strive to keep disputes over cell sites out
of court, where they will be expensive and much harder to win.
We use the Telecommunications
Act of 1996, which requires substantial evidence, to show that the
application for the proposed project was not supported by facts. If there
are enough flaws in the application and in the staff report, then the
project itself is fatally flawed. Kreines & Kreines, Inc. prepares a report
on the flaws, inconsistencies and problems with the application. The
failures to meet planning and zoning requirements are the basis that the
local government can use to deny the project. Kreines & Kreines, Inc. has
never seen an application that wasn’t riddled with errors.
Here are the things Kreines &
Kreines, Inc. recommends that citizens opposed to a cell site NOT do:
Never argue the health/cancer/EMF issues.
These may be strongly held convictions on a personal level, but the
Telecommunications Act of 1996 states that these reasons cannot be used
to deny a project.
Avoid discussion of coverage, significant
gaps and signal strength. These subjects are the purview of the
carriers and neighbors will never know as much about these issues as the
radio frequency engineers working for the carriers.
Don’t suggest alternative sites. To gain a
good understanding of why not, read the court decisions in T-Mobile
v. Anacortes and Omnipoint Holdings v Cranston. You can find
these decisions on the Internet.
These issues are finely
tailored by the wireless industry, acting as bullfighters, and the issues
become red flags for the bulls, otherwise known as unknowing citizens. If
neighbors charge into the fray using the above, they will have daggers stuck
in their backs by a prepared wireless industry. The citizens’ discussions
about “radio frequency radiation,” “how many bars they already get on their
phones” and "what about putting the antennas on the empty lot down the
street?” fall on the deaf ears of the decision makers.
Then, the homeowner’s energy
is depleted, what little money they had is gone, and a divide is created
between the local government and the citizens who are supposed to be
Kreines & Kreines, Inc.
teaches each client to focus on issues where the wireless industry is weak:
planning and zoning. Most wireless industry representatives have never read
the local government’s comprehensive plan. They don’t realize that a
Conditional Use Permit or a special permit is a zoning action which, in most
states, must be consistent with the local government’s comprehensive plan.
Kreines & Kreines, Inc. Works Remotely
Kreines & Kreines, Inc. does
not have to travel to public hearings for cell sites. Commissions, Boards
and Councils do not want to hear from an expert from out-of-town (unless the
local government hired the expert). Kreines & Kreines, Inc. trains the
neighbors to win. The following are quotes from some e-mails to Kreines &
Kreines, Inc. received from neighbors in Burbank:
We did it! The City Council voted 5-0 to uphold the
Thank you, thank you, thank you! We tore the Planning Board a new one
and we won!
We never could have done it without you. Thank you so
much for offering your time and your talents to this fight, the work you do
is very important.
From the bottom of my heart, Thank you.
We won. 5-0 vote couldn't have done it without your
input, and marvelous report. Thank You.
Thank you for all the work you did to save our
neighborhood and all the neighborhoods of Burbank. You are a hero to the
We live kitty corner to the church and have been
completely disturbed the past three months. This whole thing made me
question many basic values as well as my faith. Your working for the team
(and our whole neighborhood/city) saved my faith, and belief, that life
works for good and is (most often) a positive force.
I cannot thank you enough for sharing your intelligence,
for the time you put into this issue, for all the emails and time you spent
communicating with the neighbors, and for the excellent report you prepared
for us to present to the Burbank City Council.
How many carriers get mail
Decisions From the U.S. Court of Appeals, Fourth Circuit
The Fourth Circuit of the U.S. Court of Appeals stands
alone among U.S. Circuits in rejecting simple formulations such as
“significant gap” or “intrusive means.” Instead, the Fourth Circuit relies
on fact-based analysis, deciding 1) whether the local government relied on
sufficient fact-finding or 2) did the carrier/appellant bring sufficient
facts to overturn the local government’s substantial evidence? Writers and
revisers of zoning ordinances could do well to follow the reasoned approach
of the Fourth Circuit.
T-Mobile Northeast LLC, Plaintiff-Appellant, v Fairfax County Board of
Supervisors, Defendant-Appellee, and Fairfax County, Virginia, Defendant
Even though T-Mobile lost at the District Court level,
T-Mobile was flush with two other circuit court victories on this issue in
the following cases:
Anacortes, Washington (see discussion in the
October/November 2009 issue of PlanWireless).
Cranston, Rhode Island (see discussion in the April/May
2010 issue of PlanWireless).
T-Mobile had its propagation plots and RF engineers in
Fairfax, and their work was considered by the District Court, but the Fourth
Circuit Court of Appeals found that T-Mobile had not met the “heavy burden”
of proving prohibition of service. This burden, according to the Court:
… is particularly heavy when,
as in this case, the plaintiff already provides some level of wireless
service to the area.
In its fact-based analysis, the Fourth Circuit Court
goes through a hierarchy of questions, starting with:
Does the local government have a “blanket ban” that serves to
prohibit service? Or …
Did the carrier show “that the denial of an application for
one particular site is ‘tantamount’ to a general prohibition of service”?
Arriving at a “no” answer for the first question,
brings more fact finding to answer the second question, specifically:
Did the carrier show “an effective absence of coverage …”?
Did the carrier show “a lack of reasonable alternative sites
to provide coverage”?
The carrier must have shown both of the above to the
point that, upon being denied, any effort to apply again would be
“fruitless” or “futile.”
After sifting through all the facts shown at trial, the
… that the district court did
not err in concluding that T-Mobile failed to establish that the Board
effectively prohibited personal wireless services …
In this case, T-Mobile also claimed it had been
discriminated against in violation of the Telecommunications Act of 1996.
After all, said T-Mobile:
AT&T just got approved by Fairfax County by requesting a
co-location on a pole beneath (not on top of) an existing antenna array.
Verizon just got approved by Fairfax County for requesting a
10-foot extension of a 90-foot pole.
Why shouldn’t T-Mobile’s request for a 10-foot
extension of a 100-foot monopole to 110 feet be acceptable? The Court found
Board’s denial of T-Mobile’s applications was based on
legitimate, traditional zoning principles, and that the facilities earlier
approved for Verizon and AT&T can be distinguished on several grounds.
The District Court determined that Fairfax County did
not unreasonably discriminate against T-Mobile.
The Fourth Circuit rendered its decision on 3/1/12.
New Cingular Wireless PCS, LLC, d/b/a AT & T Mobility, Plaintiff–Appellant,
v The Fairfax County Board of Supervisors, Defendant–Appellee
PlanWireless covered the District Court’s
finding on this case in the February/March 2011 issue. The Fourth Circuit
reviewed that decision on two grounds:
Substantial Evidence – New Cingular claimed the County relied
on zoning, the comprehensive plan and the testimony of neighbors. These do
not, in New Cingular’s opinion, rise to the level of substantial evidence
required by the Telecommunications Act.
Prohibition of Service – New Cingular made claims similar to
T-Mobile’s in the preceding case:
Lack of an “effective absence of coverage” thereby requiring a
new cell site.
Any alternatives to New Cingular’s proposed site, narrowed to
one by New Cingular, in Fort Hunt National Park, were “unavailable.”
On the substantial evidence claim, the Fourth Circuit
echoed the District Court and found that:
… sufficient evidence may
support a board's decision where there is evidence that the proposed
facility “would be inconsistent with” a county's “Comprehensive Plan” or
And then later in the decision that:
[i]t is not only proper but
even expected that a legislature and its members will consider the views of
their constituents to be particularly compelling forms of evidence.
Accordingly, the District Court found sufficient
evidence to support the County’s decision.
On the “prohibition of service” issue, the Court merely
repeated findings from the T-Mobile case discussed above.
The Fourth Circuit upheld the District Court’s decision
in favor of Fairfax County on March 19, 2012.
T–Mobile Northeast LLC, Plaintiff–Appellee, v. The City Council of the City
of Newport News, Virginia; City of Newport News, Virginia,
T-Mobile appears again before the Fourth Circuit, this
time appealing a denial by the City of Newport News that was overruled by
the Districted Court. In this case, claims centered on whether the City of
Newport News had substantial evidence to support its denial as required by
the Telecommunications Act.
But T-Mobile did submit substantial evidence, and
therefore the Fourth Circuit found”
…we are satisfied that the
district court thoroughly reviewed the evidence supporting the permit and
did not impermissibly shift the burden to the City and its citizens.
The real question for the Fourth Circuit to decide was
whether there were enough citizens with reasonable concerns to provide the
City with substantial evidence? No, said the District Court, and the Fourth
Circuit concurred, repeating an earlier opinion:
If the concerns expressed by a
community are objectively unreasonable, such as concerns based upon
conjecture or speculation, then they lack probative value and will not
amount to substantial evidence.
The Fourth Circuit upheld the District Court’s finding
and decided for T-Mobile on March 26, 2012. That makes three Circuit Court
decisions in one month on wireless issues.
Clear Wireless LLC v. Village of Lynbrook (NY)
This is a federal District
Court case and some District Court decisions are special. This is one where
Clearwire, a product of Clear Wireless, made a mistake in judgment.
Clear Wireless (Clearwire),
like New Cingular Wireless (AT&T), Cellco Partnership (Verizon) and
Omnipoint (T-Mobile) is a name used for lawsuits and leases.
Clearwire Applied to the Village of Lynbrook as a
“Wireless Telecommunications Facility”
The New York District Court of
the US Federal Court system found that: if a carrier wants to use the
Telecommunications Act of 1996 for a “higher level of review,” they must
be: a personal wireless service that applies for a personal wireless
If your community has an
ordinance or bylaw regulating “Wireless Telecommunciations Facilities” (WTFs)
or “Wirelss Communications Facilities” (WCFs), you need to understand this
How Clearwire Got Into Trouble
Clearwire applied to the
Village of Lynbrook on February 2, 2010 for a rooftop site for its
equipment. The Village denied the application on October 4, 2010, finding,
among other things:
The Village of Lynbrook believed that Clearwire was an
advanced Internet product, not eligible to have the Village’s decision on
its application reviewed under the provisions of the Telecommunications Act
A “hand-held Internet station is not a need” … (the reader is
reminded that Clearwire is used for 4G on Sprint handsets) … “entitled to
the higher level of review” … under the Telecommunications Act of 1996.
The height of the building proposed as a mount for the
equipment was already non-conforming (too high under present, stricter
zoning than previous height limits when the building was allowed).
Clearwire never demonstrated there were no other alternative
sites for its project.
On November 2, 2010, Clear Wireless sued the Village
under three causes of action, the first of which was failure to deny a
personal wireless service facility under the terms of the Telecommunications
Act of 1996. The other two causes of action, one procedural and the other
State of New York requirements, will not be discussed in this article.
Clear Wireless decided it
knew enough about the Telecommunications Act to claim that the Village of
Lynbrook didn’t have substantial evidence to support its denial of the
Clearwire application. The Village countered that their denial didn’t rise
to the requirements of the Telecommunications Act, because Clearwire does
not qualify for protection under the Telecommunications Act.
The Difference Between an Information Service and a
The Federal Communications Commission made a bright
line, mutually exclusive distinction between two types of regulated
Information service – capable of:
… generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications.”
… the offering of “the
transmission, between or among points specified by the user, of information
of the user’s choosing, without change in the form or content of the
information as sent and received.”
The distinction all started with the Brand X lawsuit,where
the U.S. Supreme Court:
… affirmed the FCC’s classification of broadband cable
Internet service as an “information service”, and the FCC’s conclusion that
broadband cable Internet service as an “information service”, was not a
In a 2007 Declaratory Ruling, the FCC concluded:
… that wireless broadband
Internet access service was an “information service”…
In the Declaratory Ruling:
In addition, the FCC explained
that, although “the transmission component used for wireless broadband
Internet access is “telecommunications” …
… it was not a
The Village of Lynbrook denied Clearwire’s application:
… because Clearwire’s 4G
service was an “advanced Internet product” and not a “telecommunications
service”, it was not subject to the TCA.
Personal Wireless Services and Personal Wireless Service
Clearwire insisted to the Court that its wireless
broadband Internet access was necessary for Sprint, a personal wireless
service carrier, to bring 4G to its subscribers. Clearwire constantly cited
FCC’s changing policy, which argued that broadband carriers deserve the same
protection as personal wireless service carriers. The Court found:
Pursuant to Section 332(c)(7),
the limitations imposed by Congress on municipal zoning authority relate
solely to decisions regarding “personal wireless service facilities”, which
are defined as “facilities for the provision of personal wireless services”
… Accordingly, to be subject to Section 332(c(7), Clearwire’s 4G service
must fit into the definition of “personal wireless services”. Section 332
defines “personal wireless services” as “commercial mobile services,
unlicensed wireless services, and common carrier wireless exchange access
Clearwire responds that its services are inextricably
bound to Sprint’s personal wireless service, even though the proposed
rooftop facility was Clearwire’s and not Sprint’s. The Court found:
… the fact that non-commingled
siting applications for the provision of wireless broadband Internet access
services are excluded from section 332(c)(7) indicates that the exception
for commingled services only limits the zoning board’s authority when the
proposed facility would also be used for the provision of personal wireless
The Court relied heavily on an earlier federal Ohio
(Southern District) lawsuit
The Court agrees with the
observation by the court in Arcadia Towers that “the law has not kept up
with the changes in technology” … Under such circumstances it is not up to
the FCC to construe the Telecommunications Act to say something it does not
say, nor up to the Court to find broadband communication encompassed by the
The above discussion does not go into the State of New
York claims by Clear Wireless, because the Court decided it would bypass
those issues in favor of having them addressed by New York State Courts.
But the federal implications of this finding are clear, as long as the
District Court is not overruled on appeal.
The question remains whether a “commingled wireless
facility” is subject to the Telecommunications Act when an information
service applies to collocate with an existing personal wireless service
facility. In that instance, the reader should take note of the Middle Class
Tax Relief and Job Creation Act of 2012 wherein the U.S. Congress declared:
… a State or local government
may not deny, and shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station.
does not believe that the Telecommunications Act would apply in such a case,
but does it matter? The only basis for denying the information service
co-location would be: “Does it substantially change the physical
dimensions” of the existing personal wireless service facility?
Congress Alters the Telecommunications Act of 1996
In February 2012, the U.S. Congress passed the Middle
Class Tax Relief and Job Creation Act of 2012. Buried deep within this new
statute is language that substantially changes the Telecommunications Act of
1996. Section 6409 of that act is entitled Wireless Facilities Deployment.
Subsection (1) of that section reads in part:
… a State or local government may not deny, and shall
approve, any eligible facilities request for a modification of an existing
wireless tower or base station that does not substantially change the
physical dimensions of such tower or base station.
This language raises several questions that
PlanWireless will discuss including “What is an ‘Eligible Facilities
Request’.” Eligible Facilities Request means that some personal wireless
service facilities are eligible to apply to the local government in
accordance with this language and some are not.
Eligible Facilities Request
6409 was not intended to mandate rezonings, reclassifications of zoning or
the introduction of parts of personal wireless service facilities where they
are currently unpermitted, e.g., the right-of-way or easements. To be
eligible, a personal wireless service facility needs to be in a place where
it is permitted.
Pirate cell sites, or those that never applied for, nor
received, any form of permission from the local government, are not eligible
facilities. Any mount that does not meet the current structural standard of
ANSI/EIA/TIA-222, revision G is also ineligible for more loading.
Think Inside the Box
The purpose of this issue of PlanWireless is to
help you, the reader, visualize how the new act can be implemented at the
local level. We will ask the local government to draw an imaginary box
around an Eligible Facility, as shown in Figure 1. Changes to the Eligible
Facility within the imaginary box will not change the physical dimensions
substantially. But changes outside the invisible box will change the
physical dimensions substantially.
The crux of Section 6409 is the phrase “substantially
change the physical dimensions.” This new law does not define
“substantially.” How can “physical dimensions” be measured? Is the local
government saddled with the challenge of determining “substantially changed”
each and every time it is requested? PlanWireless thinks not.
& Kreines, Inc. proposes a three-dimensional footprint or invisible box
around each existing “tower” and “base station” which the local government
can draw at the time the Eligible Facility applies for a modification or
collocation. The box forms an imaginary curtain around the structures,
within which modifications are not considered substantially changing the
existing tower or base station. Modifications outside the invisible box,
drawn by the local government, should be considered substantially changing
the existing structure’s physical dimensions.
Applicants may react that the close limits of the box
don’t give them enough latitude to significantly expand the existing
structure. But that is the point: “substantially change the physical
dimensions” should be absolutely clear to all parties each time it is
Applicants will be particularly opposed to capping the
dimensional top of the box at the existing height AGL of the
telecommunications infrastructure, be it a tower or a building mount. Many
applicants demand “at least ten more feet to work with and that’s not
substantially changing a 100-foot tower.” Where have we, PlanWireless
and the reader, heard this before?
The idea of capping the dimensional box at the existing
height AGL is to avoid granting a ten-foot extension in 2012. Then the
tower owner is back in 2013 asking for another ten feet. After five
extensions of height, any one of which could be found to not “substantially
change the physical dimensions”, the tower has grown 50 feet due to
cumulative changes. Anyone would agree that 50 feet is “changing the
100-foot existing tower in 2011 substantially,” but each year the applicant
has the right to say:
Section 6409 does not limit the number of times an applicant
can ask for a modification as long as each modification does not
substantially change the structure at that time.
Once you agree that a ten-foot extension (on a 100-foot tower)
does not substantially change the tower in 2012, how can you find that
extending a 110-foot tower another ten feet is a substantial change in 2013,
not to mention a ten-foot extension to a 120-foot tower in 2014?
A dimensioned box is intended to lock in the definition
of “substantially change” and thereby avoid the inevitable cumulative
impacts of continuous requests to modify.
What is a Tower and What is Not a Tower?
PlanWireless has been playing this silly game of
defining a tower for 16 years. That’s because the original language of the
Telecommunications Act of 1996 used the term “personal wireless service
facility” and not the term “tower.”
Now, Congress in its wisdom sends lawyers off on a
search for a definition of “tower” by using the word in Section 6409. It
should be obvious to the trained observer that Congress intended to refer to
wireless infrastructure, be it a tower, a rack on a building’s roof, or a
stand-off bracket on the Empire State Building. The Empire State Building
is not a telecommunications tower; it was built for offices, not wireless.
Nevertheless, PlanWireless finds Lisa Murphy, an
attorney with a blog, holding forth:
Unfortunately, there is no record of Congress’ intent
with regard to the interpretation of the phrase “existing tower”, but given
its plain meaning and Congress’ explicit intent to usurp the authority of
state and local governments to deny collocation and site modification
requests, the term arguably applies to any structure that can support
If that is the case, then every building, water tank
and light pole built for a previous purpose would be an existing tower.
Kreines & Kreines, Inc. holds that an “existing tower” is any structure
built with its initial purpose to be a telecommunications mount.
Further, there must be active telecommunications
equipment on the existing tower for collocation to occur. As shown in
Figure 2, a water tank with antennas can be collocated upon. Any
collocation proposed within the dimensional box does not substantially
change the physical dimensions. The dimensional box is drawn upon the
existing telecommunications equipment, not the entire water tank.
What is Collocation and What Isn’t Collocation?
PCIA (Personal Communications Industry Association) is
a trade organization representing site owners and managers. On its web
site, PCIA takes credit for lobbying Congress to insert Section 6409 into an
act dealing with economic opportunity and job creation. PCIA then goes on
to define collocation per the FCC’s National Programmatic Agreement:
The FCC defines “collocation” as “the mounting or
installation of an antenna on an existing tower, building or structure for
the purpose of transmitting and/or receiving radio frequency signals for
Kreines & Kreines, Inc. believes that collocation
involves more than an antenna and that the National Programmatic Agreement
pertains to historic and cultural sites only.
Kreines & Kreines, Inc. believes that the correct
definition of collocation is “the addition of any new telecommunications
equipment to the old telecommunications equipment of an existing site.” For
example, adding another free-standing antenna to the Empire State Building
is not a collocation. Adding more equipment to an existing mast with
antennas on the Empire State building is a collocation.
Will Carriers and Tower Companies Claiming Not to
Substantially Change the Physical Dimensions Still Need to Apply?
The answer to this question is yes; otherwise how can
the local government know whether the proposed modification or collocation
substantially changes the physical dimensions or not? Section 6409 is not a
free pass for the applicant to go the building department and immediately
request a building permit.
The law firm of Prince Lobel got it right on its
website by stating the following:
The Act’s provisions leave some questions unanswered.
The act prohibits a state or local government from denying a request to
modify an eligible facility, but does not exempt the carrier from having to
file, and seek approval of, the necessary application.
What Congress did not intend was to alter the
application process of the local government, but rather to ease the
restrictions leading to denial of the proposed project.
In order to deny, or approve, the local government must
have a proposed project. The only way to characterize a proposed project is
through the application process. The act of automatically approving a
collocation or modification that would normally require a discretionary
(e.g., public hearing) review, is to review the application first. Then a
finding can be made to avoid any further review.
Some Do’s and Don’ts for Local Governments
Here are a few situations that are bound to arise
during local government implementation of Section 6409. For example, Figure
3 shows two cabinets of a base Station separated from a light pole with
flush-mounted antennas. In this case, we have drawn two invisible
One imaginary box surrounds the light pole and antennas. This
box does not include the cobra light fixture because it is not part of the
wireless cell site.
A second illustrative dimension box surrounds the two base
station cabinets, thereby allowing modifications within the box that do not
change the eligible facility substantially.
The space between the two boxes is open, and any
modification or collocation within that space would substantially change the
physical dimensions of the cell site. Do not attempt to bridge the two
separate dimension boxes, unless a discretionary review is sought.
In Figure 4, a shelter disguised as a designed building
has a base station within it. The shelter allows for a rectangular
dimension box because the building was built for telecommunications
purposes. The faux tree has plastic boughs that extend beyond the vertical
plane of the dimension box and are not part of the area within which
collocations or modifications would not substantially change the site’s
“Substantially changes the physical dimensions” means
staying close to the original building line.
Next in Wireless? More Cell Sites … One on Every Block
It’s one thing to consider
what’s happening to some of the older cell sites.
But all of this added bandwidth won’t bring the signal closer to the user.
Smaller cell sites, now being added as Distributed Antennas Systems (DAS),
are now being approved in many cities.
1: A single “node’ in a DAS project on a
residential street in San Francisco. Note the warning sign at arrow. You
need binoculars to read it. Neighbors to this site believe that the permits
from the City and County of San Francisco were not properly issued and that
the “nodes” were not installed at the right places. The neighbors hope
these nodes will be removed. (Photograph courtesy of Jeff Cooper.)
fortunate to have Jeff Cooper allow us to use his photos for DAS in San
Francisco. You can see his photos in this article.
In Figure 1,
Jeff Cooper is touching the equipment box of a cell site outside his home.
Will this equipment get upgraded in the future? Will there be more RF
emissions from the antennas at the top of the pole? Only the neighbors
care, since the real issues in San Francisco are aesthetic concerns: one
can see them and they are ugly. To get an idea how ugly, check the view
from the living room of this San Francisco resident overlooking the street
in Figure 2. An arrow points to the same
equipment box that Jeff Cooper is touching in Figure 1.
2: A photograph from the living room of the
Cooper residence near the node. (Photograph courtesy of Jeff Cooper.) The
arrows show the equipment Jeff is standing under in Figure
The view from the Cooper’s living room may not be as
ugly as it is intrusive. The problem is that one day it wasn’t there and
the next day it was. And, the neighbors believe it’s in the wrong place.
The carrier (AT&T Mobility) didn’t install the DAS. The vendor (NextGNetworks)
didn’t install the DAS. The contractor who did the work was told where to
put the nodes and someone should have been watching that the contractor put
them in the right place. Will the City and County of San Francisco take
responsibility for this construction if it is in the wrong place?
If it weren’t for neighbors, who the industry likes to
call “NIMBYS,” an installation may never be done right because no one is
minding the store. Perhaps we should change the phrase “Not in My Backyard”
to “We Have a Neighborhood Watch System and We Pay Taxes.”
Back to Jeff Cooper’s plight.
If Jeff Cooper gets tired of looking out his living room windows, he can
always go to the back of the house. And there, looking out the rear window,
he can get the view shown in Figure 3.
Figure 3: View of another DAS node from Jeff
Cooper’s rear window. NextGNetworks has extended (area within ellipse) the
utility pole. This practice is not recommended in earthquake country.
(Photograph courtesy of Jeff Cooper.)
The Coopers have appealed the permitting of these and
32 other (hundreds have been approved throughout San Francisco) DAS nodes.
And the Coopers have won their appeal. NextGNetworks turned right around
and filed applications for the same nodes, this time in the right
locations. So here are the theories:
NextGNetworks is operating under the admission that they made
a mistake, but this time they did it right. They want the City to approve a
new set of applications.
The Coopers have been instrumental in changing San Francisco’s
process. They believe NextGNetworks flouted the law and the installations
should come down.
Meanwhile, everyone is arguing
whether the new process affects NextGNetworks’ new applications, which
follow the old process.
And the DAS nodes? They’re
still up and no doubt more will follow while everyone’s arguing.
Kreines & Kreines, Inc. Authors Comments to the FCC
Notice of Inquiry
PlanWireless readers may be aware of the Notice
of Inquiry (NOI) released by the FCC asking for comments on FCC’s intent to
open up the right-of-way to “wireless facilities.” One of our clients asked
us to write comments for them and a 32-page document followed.
The FCC wants to have the wireless industry gain
unfettered entry with their equipment into the right-of-way. That’s not to
say that the industry isn’t already in rights-of-way across the U.S. with
hundreds of cell sites. The photograph in Figure 1 shows just one example
of two nodes of a Distributed Antenna System (DAS) in San Francisco. Every
urban and suburban neighborhood (that means residences) can look forward to
this invasion if the FCC mandates unfettered access.
Figure 1: A low density neighborhood street with one of the “nodes” with
DAS equipment on the utility pole in foreground. The nodes are close
together since the next installation is seen above the trees. (Photograph
by Jeff Cooper.)
But does the FCC have this power? Today, a personal
wireless service facility carrier must go through a discretionary process
with the local community. There are public notices, public hearings and
substantial evidence collected. These are the things the wireless industry
can’t abide. They want to go to the keeper of the right-of-way (e.g.,
Director of Public Works), hand in an application, pay a low fee, and say
“stamp it.” This is a ministerial process which the Telecommunications Act
of 1996 expressly ruled out for personal wireless service facilities.
Easy entry into the right-of-way is a deception. By
the time the affected parties (neighbors) find out about it, it’s already
built. Once built, there’s very little the neighbors can do.
Rural areas will be just as susceptible to right-of-way
entry. Scenic byways, interstate highways, back country roads … they are
all along rights-of-way that the wireless industry wants immediate access
to. Even private rights-of-way, like railroads, will be targeted. Our
client was told a “DAS” was going in along the Norfolk Southern railroad
right-of-way. DAS was supposed to have these little utility pole “nodes,”
but each of the seven towers like that shown in Figure 2 was the actual
Figure 2: An 80-foot
monopole serving as a DAS “node.” Note the conventional three-sector
antennas on the top. The landline signal to the pole comes from a box miles
away via fiber optic cable along the railroad right-of-way.
Source of drawing: Section
106 Review Prepared by Environmental Corporation of America (ECA) 12/3/10.
Build Their Own Poles, or Use Existing Utility Poles?
If your community objects to a DAS vendor (a DAS vendor
is not a personal wireless service carrier licensed by the FCC) building
80-foot tall poles, the vendor will gladly invoke the Pole Attachment law
and attach to the nearest telephone, pole, light standard, even a stoplight
it it’s high enough.
This is where substantial evidence becomes critical.
The utility must meet standards for a utility pole, not a monopole. When a
carrier or a vendor starts attaching heavy equipment near the bottom, ½ the
way up or at the top of the pole, the utility standards don’t apply.
Substantial evidence must be submitted by the third party (e.g., neighbors)
to show the much more appropriate standard called ANSI EIA/TIA 222, Revision
Wind load as a result of “sail,” or a flat
panel catching the wind.
Ice load and snow load as adding to the
Steel as a preferable material to wood or
Cables as a contributing factor in the wind
as they untether and slap against a pole.
A foundation underground that will
stabilize the shaft, not just against its dead load (weight) but its
live load (deflecting back and forth) as well.
Most Public Works Directors have never heard of ANSI
EIA/TIA 222, Revision G and the wireless applicant for the right-of-way is
not about to volunteer such evidence.
A discretionary process is needed to allow interested
parties to be heard and submit substantial evidence. Rights-of-way managers
don’t engage in such processes: they are “ministers” in that they engage in
ministerial processes. And that is why the wireless companies want to have
unfettered access to the right-of-way ... they don’t want a discretionary
Wasn’t it the FCC That Didn’t Want Antennas Too Close to
Some of our readers will remember the FCC Booklet
entitled A Local Government Official’s Guide to Transmitting Antenna RF
Emission Safety: Rules, Procedures, and Practical Guidance the cover of
which is shown in Figure 3.
This document said sometimes an antenna should be no closer than 48 feet
away from human receptors.
In this generally helpful primer, scenarios such as a
person standing a distance away from a roof-mounted antenna array or a
monopole are diagrammed. This Official’s Guide was published in 2000, and
the following were not even thought of:
(we were still struggling with 3G).
Broadband (there was Broadband PCS, but it
lacked sufficient bandwidth to have Advanced Telecommunications
Personal wireless service facilities in the
right-of-way (there were some, but “towers” were the deployment of
choice in those early days).
Consequently, in looking to the FCC for guidance,
PlanWireless finds that conditions have changed.
Figure 4 illustrates how rights-of-way in older cities and towns will be
quite close to right-of-way deployments. It is impossible to predict the
power densities of these Broadband facilities, but PEC assumes:
Some will be personal wireless service
facilities, some will not. Many will be hybrids.
Some will use beam antennas, some will use
omni-directional antennas and still others may have “patch” antennas.
Much more bandwidth will be needed for
More bandwidth means more channels from
each “wireless facility.”
Who knows what the Broadband emissions of the future
will be? Will a public works department be able to make a ministerial
decision as to what is healthy and what is not? A local government cannot
deny a personal wireless service facility unless its emissions exceed FCC
Guidelines. But substantial evidence of RF emissions will never be
submitted to a right-of-way decision-maker, much less required, for each
ministerial decision over an application for a “wireless facility” in the
right-of-way. To make a decision, the local government will need
substantial evidence, and peer (or third party) review of the application’s
substantial evidence may be necessary.
Discretionary acts means the public has a right to know
and to participate.
Community on the FCC’s List?
PlanWireless has learned that certain wireless
industry representatives are alleging to the FCC that named and identified
local governments are deliberately blocking wireless deployment. Thanks to
the International Municipal Lawyers Association (IMLA), the release of
hundreds of these communities’ names allows the local (and sometimes state)
governments to know what they are being accused of. IMLA used Best, Best
and Krieger, a municipal law firm, to gather these data from the FCC.
Neither PlanWireless nor Kreines & Kreines, Inc. are affiliated with
Best, Best and Krieger or IMLA, but they’ve done a great job and we are
passing this information on as a public service.
Charles W. Thompson Jr., the Executive Director of IMLA,
is concerned enough to contact each local government on the list. Thompson
believes that the IMLA needs to ensure that all communities called out by
the wireless industry respond to the FCC, to state whether or not the
allegations of the wireless industry are correct or not, and to provide an
explanation of their actions.
What follows is a list of the industry representative
making allegations about hundreds of local governments:
Verizon (PlanWireless assumes Verizon Wireless).
Next G (PlanWireless assumes NextG Networks).
AT&T (PlanWireless assumes AT&T Mobility).
One of the lists, which were gleaned from FCC filings
by Best, Best and Krieger LLP., contains 523 cities and counties that,
according to Best, Best and Krieger, were outrageous enough to hire “a
consultant that the industry did not like.”
Just what the FCC plans to do about these industry
allegations and “bad boy” communities, PlanWireless does not know.
IMLA is trying very hard to reach representatives of these communities even
though IMLA thinks they would rather be told and risk their annoyance at
being told something they may already know, than risk them not responding if
they have been ‘defamed’ or blamed unfairly.
See Those Skinny Little
Antennas? They Are Changing
Back in the 20th Century, Cellular (and then
PCS) used skinny little antennas like those shown in Figure 1. They were
really limited in bandwidth.
Around the turn of the century, those skinny antennas
got replaced with somewhat bulkier models. Why? Companies like Verizon and
Cingular (which didn’t exist yet) were buying other carriers and adding the
other carriers’ equipment to their existing equipment boxes. The new
antennas are fed by more cables.
Nine simple cellular antennas on a 35-foot high monopole. No problem: they
are in an industrial zone and no one complained.l
Figure 2 shows the process is continuing. Those
bulkier antennas are now transmitting (and receiving) more than one
frequency band, e.g., PCS added to Cellular. The bottoms of these antennas
had more connections for more cables.
Figure 2: A
close-up of the same monopole as shown in Figure 1, ten years later. The
cables and antennas have been changed many times. Each antenna has two,
three or four cables feeding it. Figure 2: A close-up of the same monopole
as shown in Figure 1, ten years later. The cables and antennas have been
changed many times. Each antenna has two, three or four cables feeding it.
Note the amplifiers added at the arrows, also probably without permits for
modifications from the original city or county approval. The RF emissions
from this cell site are many times more than those of ten years ago.
Figure 2 is a close-up of what a small monopole looks
like at the beginning of adding more antennas: dual-band, then tri-band.
As more frequency bands are added to the replaced antenna, more cables feed
the replaced white panel on the pipe mount.
When will it end? The demand for wireless upgrades is
insatiable. More gadgets mean more apps, more apps need more bandwidth, and
more bandwidth means more frequency bands.
Meanwhile, the level of RF emissions is increasing from
the same cell site.
They Just Want to Change Antennas. So What’s the Big
Kreines & Kreines, Inc. was interviewing a city a few
weeks ago, and the subject turned to new antennas or replacement of existing
“We get it all the time,” we were told by the city’s
representative, “it’s just a minor aesthetic impact.” Consequently, these
antenna change-outs are approved by the city all the time without concerns.
What is not considered is that each time these antenna
changes occur, there are modifications going on in the equipment cabinets or
shelters. Usually, the unseen changes are resulting in more bandwidth
coming out of the same cell site. More bandwidth means more channels being
used, and more channels mean more radio frequency (RF) emissions. RF
emissions from cell sites are increasing with what appear to be simple
the city calls “minor aesthetic impact” was usually not disclosed as an
addition of more frequencies by the carrier; therefore, it wasn’t discussed
by the city or citizens and no decision was made on the basis of “RF creep.”
New AT&T Wireless d/b/a AT&T Mobility v.
Fairfax County (Virginia) Board of Supervisors
Editor’s Note: AT&T Mobility likes to use its other
name “New Cingular Wireless” for lawsuits. No one likes a corporation to
sue its local government, so instead of using its brand name, AT&T calls
itself “New Cingular Wireless.” PlanWireless is going to call them as we
see them: AT&T.
AT&T applied for a special exception permit to build a
personal wireless service facility on the grounds of the Mount Vernon
Masonic Lodge, which is in the middle of a residential district. The
project consisted of an 85-foot high flagpole to hold the antennas and
related ground equipment.
later amended its application to change the flagpole to an 88-foot tall
monopole designed to look like a tree (treepole). The equipment would be
enclosed in a shed that would be designed to look like the Masonic Lodge.
At the Fairfax County Planning Commission public
hearing on the application, several neighbors of the proposed project
testified in opposition to the proposal. The Planning Commission found that
the proposed project substantially conformed with the County Comprehensive
Plan in accordance with the Virginia Code Ann. Section 15.2 -223 2 and
recommended approval to the Board of Supervisors.
At the Board of Supervisor’s hearing on the project, a
petition signed by 47 citizens opposed to the project was submitted and 21
members of the community testified that they opposed the project.
The Board voted to deny the application citing
concerns that the facility did not conform to the Comprehensive Plan, did
not conform to the residential character of the surrounding community, that
AT&T failed to look at alternatives and that the flagpole or treepole would
have an adverse visual impact on the adjacent residential areas. The Clerk
for the Board sent a letter to AT&T informing them that the application was
AT&T filed a lawsuit with the U.S. District Court for
the Eastern District of Virginia against the Fairfax County Board of
Supervisors, alleging violation of the Telecommunications Act of 1996.
Specifically, AT&T alleged that the Board of Supervisor’s denial of the
special exception application was not a decision supported by substantial
evidence in a written record and that the denial completely prohibited AT&T
for providing personal wireless services.
Section 704 (c) (7) of the Telecommunications Act of
1996 amended the Communications Act of 1934, Section 332(c)(7) which
preserves the authority of local boards and councils to regulate the
placement and construction of wireless facilities in accordance with local
zoning plans, specifically stating that:
Except as provided in this paragraph, nothing in this
Act shall limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service facilities.
The primary limitations on such authority are that any
decision to deny an application for a personal wireless service facility
“shall be in writing and supported by substantial evidence contained in a
The Fourth Circuit of the Court of Appeals has defined
substantial evidence as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
According to Judge Leonie Brinkema, the
Telecommunications Act reflects Congress’s desire to assure the introduction
of competitive wireless services while at the same time preserving local
zoning authority and ensuring significant local control over the
construction of the physical wireless facilities themselves. The Judge went
on to say:
In fashioning such a compromise, Congress was mindful
of the broad powers that localities have enjoyed to implement zoning and
other land use controls to protect the public health, safety, convenience
and welfare. The Telecommunications Act is therefore not intended to affect
or encroach upon the substantive standards to be applied under established
principles of state and local zoning laws.
The Judge found that the Board’s denial of the special
exception application was a decision in writing and was supported by
substantial evidence in the record as required by the Telecommunications
Act. The evidence consisted of the Board’s determination that the project
was not in harmony with the local Zoning Ordinance or with the County’s
Comprehensive Plan. The Comprehensive Plan requires that any wireless
facility be designed and located to minimize its visual and any other impact
on the character of the site and surrounding area. Inconsistency with local
zoning requirements can be sufficient substantial evidence to deny a
wireless application based on the Fourth Circuit authority.
The Judge determined that:
Community residents were understandably opposed to the
construction of a telecommunications tower in the middle of a residential
area, and that the proposed flagpole or treepole facility would be highly
visible at the proposed site and would depress local property values.
AT&T claimed that purely aesthetic concerns cannot
constitute substantial evidence. However, the Judge found that the
neighbors’ concerns were not merely visual or aesthetic in nature but are
concretely tied to such matters as a decline in property values.
Blanket Ban on Wireless Services
The Judge went on to find that the Board’s denial did
not amount to a blanket ban on wireless facilities as prohibited by the
Telecommunications Act. This finding was based on the evidence that the
Board of Supervisors previously approved numerous zoning applications for
personal wireless service facilities, including at least three AT&T
facilities in the vicinity of the proposed site.
The Fourth Circuit has found that a telecommunications
provider cannot prevail on a challenge to an individual zoning decision
without proving a blanket prohibition or general ban. Any other
interpretation would effectively nullify local authority by mandating
approval of all applications.
AT&T argues that the Board’s decision amounted to a ban
because there were no other feasible alternatives to the proposed site.
However, the Judge found that there were several other sites in the area,
which, while perhaps not ideal from AT&T’s perspective, would wholly or
partially meet its coverage objectives without posing the sorts of problems
that led to the denial of this particular site. AT&T could also have
employed other technologies or used several other locations in combination
to meet its objectives.
AT&T also argued that the Board of Supervisors was
obligated to demonstrate that locating at any other possible site would be
less intrusive than locating at the proposed site. However, the Judge found
that the Board is under no obligation to assist AT&T in identifying the
ideal location for its services. Nor is the Board obligated to approve
AT&T’s desired site so that AT&T can meet its coverage objectives with a
single facility. The Board must merely determine, based on traditional
zoning principles, whether the proposed project should be approved or
granted the Fairfax County Board of Supervisors’ Motion for Summary
Welcome to the Fourth Circuit
Readers of PlanWireless will marvel at the
difference that the court case above (Fairfax County) represents from
the recent T-Mobile case in Anacortes (in the Ninth Circuit) and
Cranston (in the First Circuit).
both of these are Circuit Court of Appeals decisions, the decisions
establish precedent in their respective circuits. In Anacortes, the
decision was all about alternatives: as follows:
sum, applying our statement in Sprint II that a plaintiff must establish “an
effective prohibition on the provision of telecommunications services,” 543
F.3d at 579, we conclude that T-Mobile's application made
a prima facie showing of
effective prohibition, and that the City in denying the application failed
to show that there were any potentially available and feasible alternatives
to the Church site.
Cranston, it was not only all about alternatives, but whose alternatives
were better, the city’s or T-Mobile’s:
The fact that a carrier's proposed solution to the gap
is technologically optimal and does not, under
Town of Amherst, end the inquiry
… Ultimately the question is a practical inquiry into feasible, available
alternatives … The trial court could permissibly conclude that Cranston's
proposed alternatives rebutting this evidence were not feasible ... On this
evidence, the district court … did not err by finding the Solid Rock Church
site was Omnipoint's only feasible option.
In Fairfax, which was
only a District Court finding, Judge Brinkema put it like this:
Courts have consistently concluded that wireless
service providers are not required, nor are they legally guaranteed the
ability, to provide seamless coverage for all customers … The Board is under
no obligation to assist Cingular in identifying the ideal location for its
wireless towers. Nor is the Board legally required to approve Cingular’s
desired location simply so that it can meet its entire coverage objectives
with a single wireless facility. Rather, the Board must merely determine,
based upon traditional zoning principles, whether proposed facilities and
special exception permits like Cingular’s should be approved or rejected.
Time will tell if the Fairfax finding will be
appealed and upheld by the Fourth Circuit Court of Appeals.
We are Hooked on Wireless! And Our Schools Are at the Center of it.
Who would have ever thought
that, 25 years ago, the chunky car phones would have turned into a device
that every child has to have? Our middle schools and high schools didn’t,
but many are enjoying the revenue from cell sites on their grounds. These
same schools are now in the front lines of wireless challenges, and we look
to those schools to deal with them.
Ban Them? That’s Hardly the Way to Solve a Problem
At Benicia (California) High
School, the constant texting and surfing (tap, tap, tap) became so incessant
during class that Principal Gary Jensen decided to confiscate the Apples,
Droids, etc. According to the San Francisco Chronicle of 11/15/10,
“When you take a cell phone away from a student, it’s
like taking an arm or a leg”, said an unapologetic Jensen. “We’re simply
stating ‘not during class time.’ I can’t overemphasize that.”
Let’s face facts: most
parents want to be in touch with their kids and a wireless device is seen by
many families as convenient if not indispensable. Perhaps there are better
ways to meet the challenge of kids’ attraction – or is it addiction – to
Not all teachers and school
officials want to hang up on technology. David Reilly, Principal of
Woodside High School in Silicon Valley, wants to provide all kinds of tools
to his students in order to bridge the gap between attention to lessons and
distraction by Twitter. One example is providing an iPad to every student
studying Mandarin. Sound like fun?
The Risks to Learning
Mr. Reilly is aware that
young people are developing a whole new way of learning and thinking. In an
11/21/10 New York Times article, Reilly says:
… unchecked use of digital devices ... can create a
culture in which students are addicted to the virtual world and lost in it.
In the New York Times
article, researchers warn this can be particularly dangerous to kids:
“Their brains are rewarded not for staying on task but
for jumping to the next thing,” said Michael Rich, an associate professor at
Harvard Medical School and executive director of the Center on Media and
Child Health in Boston. And the effects could linger: “The worry is we’re
raising a generation of kids in front of screens whose brains are going to
be wired differently.”
Is It Ironic That Schools are Putting up Cell Sites on Their
Property, Or is it an Opportunity?
The wireless industry looks
for the best (easiest) places to build new cell sites. Schools rise of the
top of the carriers’ lists because schools need revenue. The center of a
school site tends not to have a lot of next-door neighbors, so the carriers
can go into residential neighborhoods (where demand is high but signals are
weak) without putting a cell site into someone’s “backyard.”
By placing themselves in the
heart of “coverage,” schools with cell sites not only earn extra revenue,
but they could train students to use digital devices in a positive way. Why
not a class on “Understanding Your Cell Phone and How to Use it
When schools agree to the
easy money from cell site leasing, they should also consider the learning
effects of digital technology. Wireless carriers may jump at the chance to
teach kids about using devices responsibly. For example, some carriers
(e.g., Verizon) actually endorse and promote driver distraction laws. If
kids knew how many vehicle deaths involved texting or talking while driving,
they may get the point.
Not Everyone’s On Board
For every parent that
believes a child’s security is enhanced by owning a cell phone, there’s a
parent who says “that may be fine, but I don’t want a cell site on my
child’s school grounds.” There are ways of dealing with parents’ concerns
over radio frequency radiation and school cell sites. Kreines & Kreines,
Inc. shows school boards and districts how this can be done.
Meanwhile, according to the
San Francisco Chronicle, there are teachers who just don’t want
wireless devices in class. English teacher Lisa Honeycutt is one, quoted as
I’m tired of fighting the fight … the buzzing and
tapping … was nearly constant, with students unable to resist the powerful
urge to see who was calling or texting.
The challenge for schools is
to balance cell phone use with the opportunities to make money from cell
sites and use digital devices for, rather than against, learning.Ã
What’s the Biggest Issue In Leasing Cell
Sites on School Property?
Kreines & Kreines, Inc. stresses to our clients that we
provide information, we do not prepare leases. We leave the actual writing
to the lawyers, although attorneys often ask us for information on this
Anyone who reads the
newspapers would believe that the number of parents protesting a cell site
on school property is Issue Number 1. It is true that there are fathers and
mothers who would rather move than have their kids attend a school with a
cell site on the property.
Suggestion: Kreines &
Kreines, Inc. has a way of dealing with the radio frequency radiation issue
and we believe that anxious parents can be satisfied by putting certain
assurances in a lease.
Kreines & Kreines, Inc. is
informing schools on four different leases at this writing. The rent for
each of the leases is under $1,000 per month. This is what we believe is
the biggest issue in leases on school property: Low Rents.
In 2007, Kreines & Kreines,
Inc. published a National Lease Rate Survey. Not all of these leases were
on school property and some were on rooftops and water tanks. The mean
overall lease rate was just over $1,600 per month and that was in 2007.
Lease rates vary according to regional markets, but any monthly rent under
$1,000 should be considered carefully by the potential lessor.
Conclusion: Kreines & Kreines, Inc. provides information. We do not
prepare leases and we do not negotiate for our clients. If your attorneys
seek the benefit of our 15-plus years of wireless consulting, we can help.Ã
Piece by Piece … or All At Once?
By 2010, most local
governments must realize they are not just approving individual cell sites,
they are approving entire networks. Networks are systems which, in any
other infrastructure approval process, the decision-makers get to see the
end-state of the built-out system. But not with wireless. In 1995, the
most frequent question regarding cell site approval by a local government
How many more of these will there be?
Today, most cities and
counties accept the answer that: “No one knows. As long as demand keeps up,
carriers have got to build.” Local governments, as a rule, blindly accept
the notion that only carriers know why they must build when, where and how
they are going to build, so don’t try to second guess them. T-Mobile has
proven effectively in courts on the East and West Coast that:
The industry’s reasons are based on “coverage.”
PlanWireless readers know that coverage is a fabricated concept,
designed to change at the whim of the carrier.
If you disagree with the carrier’s approach, that carrier may
sue your city or county.
The carrier will tell the judges each and every time that
carriers own their respect-ive tech-nologies and only carriers can question
their own technologies.
Here Come the Carriers with
Figure 1: A
network design presented to a city (area primarily in the middle of the
map). If the surrounding cities have already approved sites in their
respective jurisdictions, what can the last city to approve do to answer the
question, “How can a carrier complete its network without your city
approving exactly what the carrier applies for?”
The network design in Figure
1 was shown to one city that was told by a carrier:
Our company needs each and every one of these sites. You
can approve them one at a time, or as a package, but we need to end up with
the same network.
The City did what any city
under pressure would do: it approved them one-at-a-time. Some were
acceptable to the City, others were not, but the network depended on all of
the sites interacting with one another.
The result: if cell sites A
and C are approved, but B is questioned, B will ultimately need to be
approved because A and C depend on it. It would have been easier for the
City to hold up all approvals until each one is acceptable. Yes, it takes
longer, but why else go through the incremental process of saying “yes” to
each drop in the bucket? Pretty soon, the bucket is full.
The House That Jack Built
A child’s tale tells the
story of Jack, who started with a one-room shack and, over time, built a
sprawling house one room - and one year – at a time. When Jack finished,
Jack had a 15-room mansion, with just a few problems:
The bedrooms were at one end of the linear arrangement, while
the bathrooms were at the other end.
The kitchen was at one end of the linear arrangement, which
made plumbing sense next to the bathrooms.
But the dining room was at the other end of the house from the
Jack would have done better with an overall plan.
Similarly, individual cell
sites would be better considered by approving the whole network first.
Otherwise, we back into the realization that, “Wow, we’re building a network
without any idea of what it will look like.”
How Can a Local Government
Approve an Entire Network When the Carriers Claim They Don’t Know What the
Ultimate Network Design Will Be?
Kreines & Kreines, Inc. has
created ways of looking at a whole wireless system without knowing what the
several carriers’ network designs look like. Our Wireless Master Plan, like
a comprehensive plan or general plan, sets standards and protocols. It does
not put dots on a map, but rather makes policy.
In environmental review,
several states have their versions of CEQA, SEPA and SEQA. All of these
approaches have the ability to prepare a programmatic environmental
document. It may make no sense to prepare an Environmental Impact Report or
an Environmental Impact Statement on an individual cell site, but a Program
EIR or EIS can tackle the tough questions before they become controversies,
How can residential areas be “covered,” from one end to the
other? Why didn’t someone tell us at the beginning of this process that we
could do the whole area with cell sites on street poles?
How many cell sites, in the name of “co-location” can the
industry place on one residential lot?
What is the ultimate radio frequency radiation impact on a
community if 35-foot high cell sites were spaced 80 meters apart from one
end of a 44,000 acre municipality to the other?
Kreines & Kreines, Inc.
actually helped answer the question in the third bullet for a town in the
Kreines & Kreines, Inc.
believes that the “piecemealing” or “segmenting” of each carrier’s network
cell site-by-cell site into a jurisdiction may end up in court. The reason
is this: a local government must examine the overall effects of a system
while approving only small portions of it on an ad hoc basis.
The very nature of planning, zoning and environmental
review is to avoid the common refrain by local governments of:
We have no
idea of what this will ultimately look like, and we’re scared to death of
getting sued, so we can only approve it one cell site at a time.
CTIA Sues San Francisco Over RFR Labeling
On July 23, 2010, CTIA – the
Wireless Association sued the City and County of San Francisco in the San
Francisco Division of the Federal District Court of Northern California.
There are three counts to the lawsuit:
passing an ordinance dealing with Radio Frequency Radiation (RFR), San
Francisco allegedly violated the supremacy of the federal government in the
well-delineated field of regulating handset emissions.
Francisco has allegedly created a conflict between federal law and the new
ordinance. Supremacy once again dictates that federal law overrules
conflicting local law.
Telecommunications Act of 1996 prohibits any state or local government from
blocking entry of “any commercial mobile service.”
CTIA wants the court to enjoin
San Francisco from enforcing the new ordinance as well as to award CTIA
attorney’s fees and court costs.
The Players: San Francisco and CTIA
San Francisco has two faces:
Those who believe it is everyone’s favorite
city, particularly for vacationers and second homes in an urban
playground. (CTIA holds an annual conference there, but no longer:
they’re pulling out as a result of this dust-up.)
Those who believe San Francisco is the
capitol of the “Left Coast,” with apologies to Berkeley and Santa
Fascinating politicians come from San Francisco,
including Nancy Pelosi, Willie Brown and the standard-bearer of Ordinance
Number 155-10: Mayor Gavin Newsom.
CTIA – the Wireless Association has gone through
In the beginning, CTIA stood for Cellular
Telecommunications Industry Association. Its leader, Tom Wheeler, was
one of the most successful lobbyists in D.C.
With the advent of PCS, CTIA fought off the
rivalry and subjugated the Personal Communications Industry Association,
which still exists as a tower and site owner organization.
By the 21st Century, CTIA made a
slight adjustment to its name and focus to the Cellular
Telecommunications and Internet Association.
Recently, with Tom Wheeler out, and Steve
Largent (former wide receiver and U.S. Congressman) in, the name is
officially “CTIA – the Wireless Association.”
CTIA is no longer simply a lobbying power. CTIA is a
constant presence at the FCC and, though the FCC and CTIA sometimes
disagree, CTIA drives the FCC (and President Obama) agenda with a blizzard
of “facts.” It has long been known that federal regulatory agencies (e.g.,
the Interstate Commerce Commission) soon become advocates for those they
No one has accused the FCC for being the voice of the
broadcast and telecommunications industry, but CTIA has broad influence over
The Ordinance (Number 155-10)
San Francisco intends to require “cell phone
disclosure,” primarily about SAR (Specific Absorption Rate) of radio
frequency radiation (RFR) for all phones marketed, distributed and sold (or
leased) in San Francisco. SAR is defined and tested by the FCC, and no cell
phone is allowed an SAR above 1.6 watts per kilogram per human body mass.
(For those who want detail on such things, PlanWireless recommends
the FCC Guidelines, which are actually NEPA [National Environmental Policy
Act] regulations. The Telecommunications Act only mandates that the FCC
study emissions and set limits; the actual numbers are considered and passed
by the five-person FCC. The Guidelines are actually two volumes: the first
in the nature of a draft and the second in the form of revisions in response
Because different handsets have varying SARs, San
Francisco believes that the buying (and leasing) public needs to know each
phone’s SAR. SARs are a matter of FCC record, if you can obtain them, and
they vary per handset from a low of 0.2 watts per kilogram to almost the
limit of 1.6 watts per kilogram. The Ordinance requires labeling of each
handset's respective SAR and a posting of a comparison by make, model, price
Retailers are expected to get their SAR data from
manufacturers. There are two kinds of retailers: formula retailers (chain
stores) and individual stores. The two types of retailers have different
deadlines, but, for individual stores, displays and labels must be in place
by February 2012. The City and County of San Francisco is still developing
forms and templates for the retailers to follow.
Non-compliance is not to be considered a misdemeanor,
but rather subject to an administrative fine for each occurrence. An
occurrence of non-compliance occurs with the sale or lease of each handset
absent the required SAR data.
The overall concern of CTIA is that the new ordinance
will dampen interest in wireless and therefore deter purchases.
CTIA believes that SAR is regulated by the federal
government and not subject to local legislation. Further, CTIA believes
that San Francisco bases its ordinance on the belief that the FCC-determined
SAR limit is “not ‘safe enough’.” While Ordinance Number 155-10 does not
make such a statement, the resolution of a previously convened Policy
Committee of the San Francisco Commission on the Environment found, among
WHEREAS, Cell phone radiation levels accepted by the
FCC do not take into account potential increased vulnerabilities of children
nor the cumulative effects of long-term use and do not provide sufficient
protection in determining a maximum allowable SAR value of 1.6 W/Kg for the
human head and brain;
CTIA faults San Francisco on many fronts, but the
organization seems particularly upset that Mayor Gavin Newsom issued a press
release the day the proposed ordinance was presented to the Board of
Supervisors. In that press release, Newsom contends:
In addition to protecting the consumers’ right to know,
this legislation will encourage telephone manufacturers to redesign their
devices to function at lower radiation levels.
The CTIA lawsuit also notes that Newsom “hopes and
expects that ‘other cities will follow’” and also Newsom claims that “this
step will allow the city to take a lead role in the U.S. in promoting
labeling for cell phones at the point of purchase.”
It is clear to CTIA that Mayor Newsom
has a wireless agenda that should be stopped on the steps of the courthouse.
Why is PlanWireless Even Interested in CTIA v.
PlanWireless has always felt that people and
local governments are not paying enough attention to the pervasiveness of
cell sites and signals in our environment. Anything that heightens
awareness is a good thing, even if the CTIA prevails.
But what if San Francisco prevails? Many cities and
counties will want to look at Ordinance 155-10 as a model. Here, the CTIA
has made a strategic miscalculation:
If CTIA wins, it wins very little. Newsom
will go on to his next gambit.
If San Francisco wins, Newsom will run with
his idea to every corner of the U.S.
Every city and county will copy the San Francisco
ordinance, at very little cost and the benefit of lots of goodwill to the
In the old politics, people like Obama or Steve Largent
would make a lot of calls before making a political move. In the new
politics, Newsom does his own homework, puts his own foot in his own mouth
and then hops on one leg to his goal.
successful in warding off CTIA, Newsom will become an icon like Steve Jobs.
Only difference is, Gavin Newsom will be the good guy.Ã
Don’t Speak of Coverage &
The following article is based
on the opinion of Kreines & Kreines, Inc.
Kreines & Kreines, Inc.
suggests to its local government clients that using words like “coverage”
and “significant gaps” is a waste of their time. The reason is that these
terms are defined by the carriers for the benefit of the carriers. Cities
and counties that use these terms are unable to define them but, if those
are the words the carriers use, they must be right, right?
these terms are useless for public sector review.
Radio Frequency Propagation Plots
Figure 1: What
some observers call a “coverage map” is really a RF propagation map. The
light (actually orange and yellow) areas are service areas around the
3-sector cell sites. The darker areas between service areas are what the
carrier calls “significant gaps.” Theoretically, a call received while
driving in a light colored area will be dropped when the vehicle crosses a
significant gap. Also, there is a higher potential for “No Service” to
appear on your cell phone screen while in a significant gap.
Figure 1 shows what some
people call a “coverage” map. They assume that any geographic area that is
not in the light (actually orange or yellow) blobs is not “covered” by the
carrier. Any space between one blob and another is what the carrier calls a
“significant gap.” Two recent lawsuits on the issue of “significant gaps”
have been decided. The result of these lawsuits is that:
If a local
government denies an application for a proposed cell site on the basis of
alternative sites (that the local government prefers) and the local
government can’t show that the alternative sites fill the same significant
gap claimed by the carrier, and the alternative sites aren’t available for
and construction, the denial is rejected by the
court and the carrier’s proposal must be approved.
First, of all, unless your community owns or hires the
same propagation model, the carriers may successfully challenge your
community’s expert. Second, who sets the parameters on which colors are “in
coverage” and which are “out of coverage?”
The RF propagation plot is not modeled before the site
is selected by the carrier; it is not a search or planning tool. The plot is
prepared after the site is selected … it is a testing tool that has no
business in a local government public hearing. Yet,
many cities and counties use these plots as “proof” that coverage is
provided and that the significant gap is filled.
Kreines & Kreines, Inc. suggests
that its clients avoid using RF
propagation as a measure of anything other than the applicant’s intentions.
Filling “Significant Gaps”
Figure 2: The
area in the center of the diagram is the proposed service area for a new
cell site. Presumably, the new cell site fills a significant gap between
the existing cell site above and the existing cell site below. But what
about the other significant gaps?
In the future,
the size of the service area will be reduced. Then the significant gaps
will be between the smallest (orange) blobs.
Anyone who believes that Figure 2 displays the closure
of a significant gap is due for a rude awakening. Yes, the light areas
connect in the middle of the plot. But who decides that a light colored area
equals “coverage” and a dark area does not?
And what does the future hold for this method of
“closing a significant gap?” The carrier in question may be modeling its
2007 bandwidth only. Today, in 2010, the same carrier has doubled its
bandwidth by purchasing spectrum from the FCC (see article elsewhere in this
issue). What happens to the size of the “blobs” when the doubled bandwidth
is considered? Your guess:
The blobs stay the same size.
The blobs become bigger because there is
The blobs reduce in size because more
bandwidth means higher speeds and the user must be closer to the signal.
The last answer is correct. The “closure of a
significant gap” will actually be nullified in the future by the appearance
of smaller blobs, none connecting to each other.
Kreines & Kreines, Inc. is not a firm of RF engineers
or a law firm. We are wireless planners who have witnessed this trend for
“Coverage” areas are getting smaller due to
The definition of “coverage” belongs to the
carriers and no one else, according to the latest lawsuit.
A significant gap is not a fixed phenomenon
… it changes with reduced “coverage” areas.
The only answer to this
downward spiral of local government helplessness is not to base any approval
or denial on RF propagation. There are better ways for cities and counties
to make decisions on wireless applications. Kreines & Kreines, Inc. is
helping cities and counties find those better ways.Ã
In figure 1, the light areas are above the -76 dBm, a very strong signal.
This particular carrier has used -84 dBm as its standard in a successful
lawsuit. The higher number is a weaker signal because it’s a negative
number. So which is the “coverage” threshold, -76 dBm of – 84 dBm?
School Boards &
School Districts are Important Clients, But Here’s What They Need to Know
This is an era of fiscal
realities, so Kreines & Kreines, Inc. is not surprised when we are asked by
a school board to review a lease for a cell site. We are looking at three
sites now and are expecting a fourth. Here are some things our school
clients find out when we consult to them.
Parents Don’t Like Cell Sites at Schools
It is a fact that some parents
believe that leasing land on school property presents radio frequency
radiation (RFR) impacts on their children. Hundreds of hours are spent in
school board meetings on discussion of “health impacts,” “Specific
Absorption Rate” and “Maximum Permitted Exposure.” Then someone may say:
It doesn’t matter what the parents think, the federal
government limits our ability to control RFR.
Parents need to know that this
Local Governments in Their Zoning Authority are Limited
in Controlling RFR, But No Entity, Including School Boards & School
Districts, is Limited in its Ability to Control RFR by Lease
This issue has been
adjudicated in the Second District of the Federal Appeals Court. If a
School Board leases space for a cell site that sets a limit on RFR and has a
proper lease, the RFR clause of the lease is controlling. The
Telecommunications Act of 1996 does not interfere with setting limits on RFR
in a lease.
Some school boards and school districts are so eager to
hear from the public, they will consider a prospective lease at a public
hearing without first agreeing on a lease rate with the wireless carrier.
The reason may be obvious: if the school negotiates better terms with the
carrier, it appears that the board or district is committed to going ahead
with the lease. It is important for all parties to agree that the lease is
an undecided contract until public testimony is heard. Once public
opposition is satisfied, there is so much a sigh of relief that rent
negotiations take a back seat to executing the lease as is, low rent and
Here’s what we think a school board or school district
should do before sending a proposed lease for review at a public hearing:
send the proposed lease to a consultant before exposing the lease to public
If Kreines & Kreines, Inc. is the consultant and the
lease rate is too low, Kreines & Kreines, Inc. will suggest a fairer lease
Who is Elena Kagan & What Does She Mean for Wireless?
Elena Kagan was U.S. Solicitor General before President
Obama nominated her to the U.S. Supreme Court. When Sprint v. San Diego
County was reversed by an 11- judge decision (en banc) of the U.S.
Circuit Court of Appeals, the wireless industry complained. CTIA, the
Wireless Association, pleaded for an appeal to the Supreme Court. The
wireless industry argued that the Sprint decision was in conflict
with other Circuit Court decisions and therefore left confusion for future
U.S. Appeals Court decisions. It was up to the U.S. Solicitor General to
file an appeal on the interpretation of the TCA and she elected not to do
FCC Tells Local Governments They Only
Have a Short Time to Approve or Deny a Cell Site Application
On November 18, 2009, the FCC issued a Declaratory
Ruling known as “WT Docket No. 08-165.” Two mandates were declared:
Any application to a local government for a co-location must
be acted upon within 90 days.
Any other application to a local government for a cell site
must be acted upon within 150 days.
The penalty for a local government that doesn’t approve
or deny a cell site application within these time frames is that the FCC
will call it a “failure to act” under Section 332(c)(7) of the
Telecommunications Act of 1996.
The reason behind this push on cities and counties is
that wireless carriers have purchased a lot of spectrum from the FCC, and
now they want to upgrade their cell sites with all that new bandwidth.
To hear Obama-appointed FCC Chairman Julius Genachowski
years on the distant horizon, 4G networks are ready to move from the drawing
board to the marketplace. One major provider has already launched 4G WiMAX
service in select markets. Competitors have announced plans to debut LTE
networks in major markets around the country.
FCC Commissioner Meredith Baker was a bit more direct
on the impacts to landlords:
action today addresses one important aspect of network infrastructure
deployment—the time it can take to build out wireless infrastructure--and
will help facilitate the process of building or upgrading the towers that
are necessary to support our wireless broadband.
Of course, water tanks and roof-tops are clearly not
“towers” and offer a distinct advantage over monopoles and other
structures: they are already built. Many carriers place their equipment on
rooftops and water tanks without seeking local government zoning approval,
which is a risk that landlords should be concerned about.
FCC Commissioner Robert McDowell rang the
anti-regulatory bell, which carriers strongly support:
are taking yet another positive deregulatory step: We are promoting
deployment of broadband, and other emerging wireless services, by reducing
the delays associated with the construction and improvement of wireless
But FCC Commissioner Mignon Clyburn nodded to local
governments, while stressing that more infrastructure is needed to meet
wireless industry demand:
one hand, states and localities have understandably expressed concern about
ceding power over zoning decisions – determinations that are clearly within
their purview. On the other hand, the Commission has a strong interest in
ensuring the timely rollout of robust wireless networks throughout the
country, especially in light of our statutory obligation to develop a
national broadband plan.
Finally, Commissioner Michael Copps hinted at what is
sure to follow this ruling:
Congress, in enacting Section 332 of the Communications Act, preserved this
important zoning role that State and local authorities play. At the
same time, in order to encourage the expansion of wireless networks
nationwide, Congress directed that zoning decisions be made “within a
reasonable period of time,” allowing court review for failure to act within
litigation ensues, the push to upgrade (and build new) cell sites will
become intense. Do you have a new lease ready? Will you even know an
upgrade when you see it? And if you don’t see it, how will you ever know it
& Kreines, Inc. Helps a Citizen in Kentucky, the Planning Commission
Benefits As Well
Figure 1: Prospective view from our client's backyard
Wireless-wise, things are different in Kentucky. Until
2002, all personal wireless service facility application approvals were made
by the state Public Service Commission. Citizens would have to go hundreds
of miles to attend a public hearing.
That all changed with a state law that mandates the
procedure (but very little substance) of how personal wireless service
facilities are reviewed at the local level. Kentucky Revised Statutes
Sections 100.985 to 100.987 spell out how local planning commissions can
approve or deny something called a “cellular antenna tower.” At the risk of
sounding like a broken record, Kreines & Kreines, Inc. reminds its readers:
they aren’t “towers.” They aren’t just for “antennas.” And “cellular” is
only one personal wireless service; there is PCS and now there is AWS
(Advance Wireless Services). A personal wireless service facility has five
components: mount, equipment shelter or building, antennas, cables and
compound. The law can’t just deal with one part of a personal wireless
service facility, such as a “tower.” The toxics and flammables, for
example, are in the shelters or buildings.
Not only was this amendment to the Kentucky Revised
Statutes poorly drafted, it appears to Kreines & Kreines, Inc. to be the
handiwork of the wireless industry with the following requirements:
All information contained in the application and any
updates, except for any map or other information that specifically
identifies the proposed location of the cellular antenna tower then being
reviewed, shall be deemed confidential and proprietary …
The local planning commission shall deny any public
request for the inspection of this information …
Any person violating this subsection shall be guilty of
official misconduct in the second degree as provided under KRS 522.030.
In other words, the public can’t access the substantial
evidence for a mandated public hearing.
Fourteen years ago, Kreines & Kreines, Inc.’s client
and his family built their dream home (pool in the rear yard of a two-acre
lot). In December 2007, T-Mobile submitted an application for a guyed
tower, with our client’s rear yard 200 feet from the “specifically
identified” proposed location of the “cellular antenna tower.” While the
central shaft of the 270-foot guyed tower was shown 200 feet away, no one
would show our client that a guy anchor was proposed immediately adjacent to
the homeowner’s lot line. If the guyed tower were built, our client would
walk out his back door and be looking at Figure 1.
Kreines & Kreines, Inc. reviewed the three pieces of
information given to Kreines & Kreines, Inc.’s client by the Planning
Commission that included:
It was clear from the staff report that the very able
staff felt very constrained by the pro-industry state law to undertake a
Kreines & Kreines, Inc. undertook the analysis and
The application appears to have been revised after it was
filed with the Planning Commission.
The Planning Commission was considering two different versions
of the same application with two different versions of the same document and
Kreines & Kreines, Inc. recommended that the project should be denied.
Comparison of Comprehensive Plan to Kreines & Kreines, Inc. Review
Kreines & Kreines,
Maintain an adequate supply of developable land in the Urban Service
Why give up nine
acres of Urban Service Area for a guyed tower site?
Maintain adequate supply of land for affordable housing.
Why give up land
planned for “Urban Residential” to a land-extensive incompatible
Develop policies and guidelines for annexing needed residential land.
Do the policies and
guidelines allow an incompatible use to impact all of the future
residential land surrounding it?
Establish community entryways to create a “powerful impression of the
The 270-foot guyed
tower would be the first thing visitors would see upon entering the
city on a U.S. highway.
Future Land Use Map.
The project site and
everything around it is designated “Urban Residential.”
It is a “fundamental principle” to “produce a positive impact on …
quality of life … and a proper balance between property rights and
the needs of the public and community.”
There is an existing
subdivision adjacent to the project site. Other “Urban Residential”
is planned. Whose property rights are balanced with what “needs of
the public and the community”?
The mission of Fire and Rescue is to provide fire suppression, first
responder, EMS, prevention education, technical rescue and to
mitigate the hazardous consequences of natural and manmade
How would Fire and
Rescue provide “fire suppression” to a structure 270 feet AGL? How
would “first responder, EMS, prevention education, technical
education, technical rescue” and the mitigation of “hazardous
consequences of natural and manmade disaster” be provided for in an
unmanned facility 600 feet down a 12-foot wide gravel road when
there is no place to turn fire and rescue equipment around?
The Planning Commission did not give the homeowner all
specific location points because the anchor points and equipment buildings
(four in all) were not mapped.
The Planning Commission should require that a draft
Environmental Assessment (see Gulf Coast article) be submitted and
should consider that document before making a decision on the project.
The alternative sites considered by the application as
alternatives were all within the Urban Service Area, which is to be annexed
for urban development and inappropriate for a guyed tower.
The proposed project is in conflict with the Comprehensive
Plan. If the Planning Commission approves the project, they should also
amend the Comprehensive Plan to eliminate the incompability.
The Planning Commission could not approve the project because
of the presence of sinkholes on the project site.
A project of such extreme height and construction demands
should not be approved with a 600-foot long dead-end sub-standard road
(12-foot gravel travelway).
Guyed towers can fall down, shower ice and debris on people
and property below, shake in a seismic event (the area is in the high risk
zone of the New Madrid earthquake fault), have been known to burn to the
ground and are point sources of toxic materials.
The proposed project has visual impacts that would be adverse,
significant, and not capable of mitigation in the setting proposed.
The application does not show the location of proposed utility
poles up to and around our client’s property although the cellular antenna
tower would require them and therefore they are part of the project.
The Planning Commission should require the applicant to study
alternative deployment strategies and alternative technologies. Without the
submission of these other alternatives, the application should be denied.
Most interesting of all of the above is that the
proposed project was clearly in conflict with the Planning Commission’s
Comprehensive Plan. Fortunately, state law requires that:
The planning commission
Review the uniform
application in light of its agreement with the comprehensive plan …
And a very good Comprehensive Plan it is. So why staff
didn’t want to compare the proposed project to the Comprehensive Plan is a
mystery to Kreines & Kreines, Inc. See Figure 2 for what we found.
Our client, the homeowner, was told by many friends
that the proposed project was a done deal. Any opposition would be
The homeowner submitted the report prepared by Kreines
& Kreines, Inc. on our review of this application to the Planning
Commission. The Planning Commission voted 7 to 0 to deny the application.
The only venue that state law provides for an appeal of the Planning
Commission decision is a court of competent jurisdiction.
As the T-Mobile attorney passed the homeowner after
losing the vote, he said, “You know, Mr. ______, this is not over.” Just
two months earlier, this attorney’s firm had filed a lawsuit against
another, more rural, Planning Commission.
What should Kentucky Planning Commissions take away
from this story? The state law for wireless is, in our opinion, flawed.
Citizens cannot have a public hearing while being denied access to the
substantial evidence in the application. Further, how can the Planning
Commissions vote to deny a project if, under the federal Telecommunications
Act, they need to have substantial evidence for the denial? How could the
Commissioners consider the substantial evidence in public, under the glare
of public scrutiny, if in fact it is proprietary? Won’t discussion of
whether the applicant's submittals constitute substantial evidence be
exposed to the public in violation of Kentucky Revised Statutes Section
In Kentucky, Kreines & Kreines, Inc. believes that the
Wireless Master Plan concept we have developed (we are preparing one now in
the neighboring State of Ohio) would end this problem abruptly. A Planning
Commission could adopt a Wireless Master Plan, then incorporate the Wireless
Master Plan into the Comprehensive Plan. Because Kentucky does not require
zoning to be consistent with the Comprehensive Plan, it would not matter
that the Planning Commission’s zoning ordinance has procedural language in
it that is pro-wireless industry. On substantive matters, the Wireless
Master Plan would be clear, concise and authoritative.
Here is what our client told us after the 7 to 0 vote
I am not sure this battle is over, but at least today
I have won a small victory. And that victory I owe to you and all the hard
work that you did for me. Again many thanks, words can never express my
And that’s one of the reasons Kreines & Kreines, Inc.
does what it does.
© 2000-2010, Kreines & Kreines, Inc. All Rights Reserved.
web site is designed to provide information about
planning for personal wireless service facilities. It is
provided with the understanding that PlanWireless
and planwireless.com are not providing legal,
planning or any other professional advice or services with this
web site. Please contact Kreines & Kreines, Inc.
if you would like to obtain professional planning services. If legal or
other expert assistance is required, the services of a competent
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