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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.

 

Text Box:

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.

Source of 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 City encouragement.

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, e.g.:

  • 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.

This Could Have Been a Tri-Location 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 other.

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 T-Mobile. 

“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.

Decision Time

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 the Neighbors?

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 governed.

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 appeal!
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 residents.

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 like that?

 

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 Court held:

… 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 that the:

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 “Zoning Ordinance.”

And then later in the decision that:[1]

[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, Defendants–Appellants

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.

[1] This was from the Virginia Beach case decided by the Fourth Circuit in 1998.

 

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 service facility.

If your community has an ordinance or bylaw regulating “Wireless Telecommunciations Facilities” (WTFs) or “Wirelss Communications Facilities” (WCFs), you need to understand this decision.

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 of 1996.

·         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 Telecommunications Service

The Federal Communications Commission made a bright line, mutually exclusive distinction between two types of regulated services:

·         Information service – capable of:

… generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”

·         Telecommunications service:

… 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,[1]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 “telecommunications service.”

 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 “telecommunications service.”

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 Facilities

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 services”.

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 services.

The Court relied heavily on an earlier federal Ohio (Southern District) lawsuit[2]

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 law”…

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.

PlanWireless 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?

[1] National Cable and Telecommunications Association v. Brand X Internet Services.

[2] Arcadia Towers LLC v Colerain Tp. Bd. Of Zoning Appeals.

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

Section 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 & 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 invoked.

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 wireless antennas.

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 communications purposes.”

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 dimensional boxes.

·         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 physical dimensions.

Conclusion

“Substantially changes the physical dimensions” means staying close to the original building line.

 

What’s 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. 

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Figure 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.)

PlanWireless is 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.

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Figure 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 1.

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.[1]

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 project.

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 G[2] requires considering:

  • Wind load as a result of “sail,” or a flat panel catching the wind.
  • Ice load and snow load as adding to the wind load.
  • Steel as a preferable material to wood or concrete.
  • 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 review.

Wasn’t it the FCC That Didn’t Want Antennas Too Close to People?

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. 

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:

  •  4G (we were still struggling with 3G).

  • Broadband (there was Broadband PCS, but it lacked sufficient bandwidth to have Advanced Telecommunications Capability).

  • 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 Broadband.
  • 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.

Is Your 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: 

  • CTIA.
  • PCIA.
  • Verizon (PlanWireless assumes Verizon Wireless).
  • Next G (PlanWireless assumes NextG Networks).
  • Century Link.
  • 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.

[1] That’s nothing compared to the combined comments by the League of Cities, National Association of Counties, et al.: 179 pages in all.

[2] Most “towers” in the U.S. don’t meet this standard either.  They were built to Revision F, or E or even earlier standards.

 

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.

Figure 1:  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 Deal?

Kreines & Kreines, Inc. was interviewing a city a few weeks ago, and the subject turned to new antennas or replacement of existing antennas.

“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 antenna changes.

But, what 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.

AT&T 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 denied.

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 written record.”

Substantial Evidence

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 rejected.

Conclusion

The Judge granted the Fairfax County Board of Supervisors’ Motion for Summary Judgment.Ã

 

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).

Because 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:

In 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. 

For 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, Jensen stated:

 “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 wireless technology.

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 Responsibly?”

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 saying:

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 subject.

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 was:

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 Whole Networks

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 kitchen.

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, for example:

·         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?[1]

·         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 Eastern U.S.

Prediction

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.

[1] Kreines & Kreines, Inc. recently helped a neighborhood group complaining about a Planning Director’s report that reads as follows:  “the … County Zoning Ordinance contains no restrictions as to the number of telecommunications towers that can exist upon a parcel.”  We found this to be a poor justification for trying to approve six cell sites, one-at-a-time over the course of 19 years, on a residential parcel of 1,300 square feet.

CTIA Sues San Francisco Over RFR Labeling Ordinance

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:

1.      In 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.

2.      San Francisco has allegedly created a conflict between federal law and the new ordinance.  Supremacy once again dictates that federal law overrules conflicting local law.

3.      The Telecommunications Act of 1996 prohibits any state or local government from blocking entry of “any commercial mobile service.”[1]

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 Monica.

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 several metamorphoses:

  • 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 should regulate.

No one has accused the FCC for being the voice of the broadcast and telecommunications industry, but CTIA has broad influence over FCC policy.

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 to petitioners.)

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 and SAR.

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 Complaint

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 other things:

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[2] has a wireless agenda that should be stopped on the steps of the courthouse.

Why is PlanWireless Even Interested in CTIA v. San Francisco?

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 local government.

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. 

If he’s successful in warding off CTIA, Newsom will become an icon like Steve Jobs.  Only difference is, Gavin Newsom will be the good guy.Ã

[1] Federal statutes have used two terms, “commercial mobile service” and “commercial mobile radio service,” for the same thing.  One sure thing is that they both are classified as “personal wireless services,” a much larger category.

[2] Gavin Newsom is the Democratic candidate for Lieutenant Governor of California and is considered to be the leading candidate.

 

Don’t Speak of Coverage & Significant Gaps

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?

PlanWireless agues 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 lease 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?”[1]

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.  Text Box: 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 more bandwidth.
  • 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.

Conclusion

Kreines & Kreines, Inc. is not a firm of RF engineers or a law firm.  We are wireless planners who have witnessed this trend for 15 years:

  • “Coverage” areas are getting smaller due to technology.
  • 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

[1] 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 isn’t true.

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 all. 

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 scrutiny.

If Kreines & Kreines, Inc. is the consultant and the lease rate is too low, Kreines & Kreines, Inc. will suggest a fairer lease rate.Ã

 

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 so.à

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 tell it:

After 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:

Our 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:

Today we 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 facilities.

But FCC Commissioner Mignon Clyburn nodded to local governments, while stressing that more infrastructure is needed to meet wireless industry demand:

On the 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 that timeframe.

While 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 happened?

Kreines & 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:[1]

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:

·       One-page application.

·       Staff report.

·       Site survey.

It was clear from the staff report that the very able staff felt very constrained by the pro-industry state law to undertake a detailed analysis.

Kreines & Kreines, Inc. undertook the analysis and found:

·       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.

Figure 2:  Comparison of Comprehensive Plan to Kreines & Kreines, Inc. Review

Comprehensive Plan

Kreines & Kreines, Inc. review

Maintain an adequate supply of developable land in the Urban Service Area.

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 development?

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 city.”

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 disasters. 

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 shall:

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 fruitless.

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 100.987(3)?

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 was taken:

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 gratitude.

And that’s one of the reasons Kreines & Kreines, Inc. does what it does.

___________________

[1] Kentucky Revised Statutes, Section 100.987(3).

______________________________________

© 2000-2010, Kreines & Kreines, Inc. All Rights Reserved.

This 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 professional should be obtained.

Highlights â
Citizens: If You Must Stop a Tower, Here's How
Towers Aren't Necessary
What We Can Do To Help
What's New â
WiFi? Why Not...
Send Us Your Leases
AT&T v. Carlsbad

 

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com