No preview available
HomeMy WebLinkAboutItem 2 - CUP 15-03 - Entire DocumentDATE: March 22, 2016 TO: Honorable Chairman and Planning Commission FROM: Jim Kasama, Community Development Administrator By: Jeff Hamilton, Contract Planner SUBJECT: RESOLUTION NO. 1952 – APPROVING CONDITIONAL USE PERMIT NO. CUP 15-03, ARCHITECTURAL DESIGN REVIEW NO. ADR 15-06, AND A WIRELESS REGULATION WAIVER NO. W 15-01 WITH A CATEGORICAL EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FOR A NEW WIRELESS COMMUNICATION FACILITY WITH A 53’-0” TALL MONOPOLE ANTENNA STRUCTURE CAMOUFLAGED AS A EUCALYPTUS TREE AND A 200 SQUARE-FOOT, 8’-0” TALL EQUIPMENT ENCLOSURE AT AN R-1 ZONED PROPERTY AT 1881 S. FIRST AVENUE, THE CHURCH OF THE TRANSFIGURATION - This item was continued from the January 12, 2016 meeting. Recommendation: Adopt Resolution No. 1952 SUMMARY The applicant, Verizon Wireless, is proposing to construct a new, unmanned, wireless communications facility consisting of a 53’-0” tall monopole antenna and a 200 square- foot, 8’-0” tall, stucco-finished, concrete block equipment enclosure. The proposed project is subject to approval of a Conditional Use Permit and Architectural Design Review for a new standalone wireless facility, and a Wireless Regulation Waiver to allow the facility on an R-1 zoned property. Construction of a new utility facility is exempt from the California Environmental Quality Act (CEQA). The Planning Commission continued the hearing of January 12, 2016, to allow Verizon time to meet with the residents near the proposed site. It is recommended that the Planning Commission approve the proposed project, subject to the conditions listed in this staff report, and adopt Resolution No. 1952 (Attachment No. 1). BACKGROUND The Church of the Transfiguration owns the three-acre site at the intersection of First and Lemon Avenues. The property is zoned R-1, Second One-Family Residential – see Attachment No. 3 for an Aerial Photo with Zoning Information. The General Plan Land Use Designation of the site is Low-Density Residential. Sections 9288.6 and 9288.8 of the Arcadia Municipal Code will allow wireless communication facilities at this property with a waiver. Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 2 of 11 The proposed project was considered by the Planning Commission at a public hearing on January 12, 2016. At that time, testimony was received from the public, including expressions of support and opposition. During the discussion, conditions were proposed by the Chairman for consideration. Following discussion by the Commission, the public hearing was continued with direction from the Commission that Verizon meet with the neighbors to try to resolve their concerns. PROPOSAL The applicant proposes to construct a new unmanned wireless communications facility in the southern portion of the parking lot serving the Church – see Attachment No. 4 for the design plans. The proposed facility will include a 53-foot tall monopole antenna structure camouflaged as a eucalyptus tree, and a 200 square-foot, eight-foot tall equipment enclosure. The block wall enclosure will be finished with stucco to match the existing buildings on the property, and provide an added visual and acoustic buffer. The proposed facility will not result in the loss of parking spaces. The location is near the southern property line at the outer side of the drive aisle. The aisle will be narrower, but will still be over 25 feet wide, allowing sufficient room for vehicles to maneuver. New wireless communications facilities such as this proposal are subject to Architectural Design Review to have the facility blend in with its surroundings. Although wireless communications facilities are prohibited in the R-1 zone, the applicant has filed for a Waiver of the prohibition as provided for by Section 9288.8 of the Arcadia Municipal Code. ANALYSIS The applicant has provided all of the required plans and supplemental documents required by the City’s Wireless Communication Facilities Ordinance. See Attachment Nos. 5 and 6, which include the following: •A Visual Impact Analysis of the proposal; •A map identifying the applicant’s existing wireless facilities in the vicinity; Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 3 of 11 •A coverage assessment showing current wireless coverage in the vicinity, and anticipated wireless coverage following construction of the proposed project; •An FCC/Signal Standards Report certified by a licensed radio frequency engineer stating that electromagnetic (EM) emissions from the proposed facility will neither exceed standards set by the Federal Communications Commission (FCC), nor interfere with any fire, police or other emergency communications system; and •A written assessment of potential available alternatives to co-locate at an existing facility within the vicinity of the project location, and an explanation of why these options are infeasible. The proposed location in the southerly portion of the parking lot of the Church minimizes the visibility of the facility from neighboring streets – refer to Attachment No. 5: Visual Impact Analysis. The proposed equipment enclosure will hide the accessory mechanical equipment. The equipment will generate minimal noise during daily operations. Should power to the site fail, an emergency generator will operate to provide electricity during the outage. Data provided by the applicant show that the generator will create an average noise level of approximately 71 dB(A) which, according to the City’s Noise Element, is comparable to the noise of a vacuum cleaner. The generator will only operate during temporary power outages. The equipment enclosure will be approximately 20 feet from the Arcadia Christian School property to the south, 71 feet from the closest residence to the west, and approximately 250 feet from the closest residence to the north. The proposed tower is to be camouflaged as a eucalyptus tree and will blend in with the existing mature oak trees located along the southerly property line of the site, the mature trees near First Avenue, and other mature trees to the west and north. The applicant is proposing to plant a new Crape Myrtle street tree on Lemon Avenue just north of the parking lot, near an existing Crape Myrtle, to further screen the facility from public view. The Church has been placing trash bins on the parking lot unscreened from view. In addition, there is a large storage container situated to the south of the southerly building Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 4 of 11 on the property, next to the parking area. As a condition of approval, it will be required that a trash enclosure meeting City standards be provided. The storage container may need to be removed if it’s use conflicts with the new location of the tower near the church. Waiver Although Section 9288.6(a)(2) of the Arcadia Municipal Code prohibits the installation of all wireless communications facilities in R-1 zones, Section 9288.8 allows for waiver of the prohibition, if the applicant demonstrates that such restriction or requirement either: 1)Prohibits or has the effect of prohibiting the provision of wireless communications services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)); or 2)Unreasonably discriminates against the applicant when compared to other providers within the City who are providing functionally equivalent wireless communication services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)). If the applicant provides information that demonstrates either of these provisions, the presumption is that the waiver will be approved. The applicant has filed a waiver request based on finding no. 1 – refer to Attachment No. 7: Wireless Regulation Waiver Request. In support of the request, the application includes the existing and proposed radio frequency propagation maps that show the coverage gap to be filled by the proposed location. The application also describes the effort to find alternative locations and that the subject site is the only feasible site that agreed to host the facility. As required by Section 9288.8(b) of the Arcadia Municipal Code, an independent, qualified consultant has reviewed the application materials in support of the waiver request. The reviewer’s report (Attachment 8—Waiver Request Evaluation Report) evaluated the alternate site information and the proposed coverage improvement. The reviewer found that the applicant exercised due diligence to find an alternative location, and that the proposed site will fill an existing gap in coverage. Since the applicant has demonstrated that the proposed cell tower will fill a gap in coverage, and this has been confirmed by an independent consultant hired by the City, the cell tower meets the Municipal Code standards for approval of the waiver from the R-1 zoning prohibition. Despite this, the City may still consider the aesthetic impacts of the project through the Design Review process. For example, the City may consider whether the proposed tower has been sufficiently camouflaged, or “stealthed”, or whether alternative locations on the property may be better suited to hiding the tower or helping it to blend in to its surroundings. Federal and State Rules for Timely Processing of Wireless Applications The Federal Communications Commission (FCC), and the State of California (through recently adopted AB57), have established time limits for processing applications for Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 5 of 11 wireless telecommunications facilities. For a new facility, such as the one proposed in this case, the City has 150 days to render a decision on any discretionary applications. The 150-day clock starts on the date the application was submitted. If the City fails to render a decision within the 150-day review limit, the applications are deemed approved. In this case, the applications were submitted on April 2, 2015. The City sent a letter to the applicant deeming the applications incomplete on April 30, 2015, and stopping the 150-day “clock”. Twenty eight days had elapsed. A second submittal was made on August 26, 2015. A second “incomplete” letter was sent on October 1, 2015, stopping the clock after another 36 days had elapsed. A third submittal was made on November 3, 2015. Another “incomplete” letter was sent by the City on December 3, 2015, after another 30 days had elapsed. Up to this point, 94 of the 150 days allowed for review had been used up. The last submittal before the January 12, 2016 meeting was made by Verizon on December 29, 2015. Since then the clock has continued to run. FCC rules allow cities to ask applicants to extend the review period in order to properly process applications, such as to meet statutory requirements to provide notice of public hearings and perform environmental review. The Planning staff asked Verizon to extend the review period in this case, and Verizon agreed on January 27, 2015, to extend the deadline to March 24, 2016. As of March 22, 2016, 151 days will have elapsed for the review of this proposal. This is past the 150-day review period. Federal Preemption Related to Health Effects During the public hearing on January 12, 2016, and as part of the written comments received (see Attachment 10—Public Comments) prior to and at the hearing, a number of residents raised concerns about the potential health effects related to the operation of the wireless telecommunications tower. The FCC has regulatory authority over wireless service facilities such as the one proposed. Under the Telecommunications Act of 1996, the FCC, “preempts local decisions premised directly or indirectly on the environmental effects of radio frequency (RF) emissions, assuming the provider is in compliance with the Commission’s RF rules.” This means that local governments are not allowed to consider potential health impacts as part of the decision-making process for wireless telecommunication facilities like the one proposed here. To the extent that such testimony has already been received, the Planning Commission must set it aside and not consider it as part of the process for this project. In addition, the Planning Commission should not allow new testimony on the topic. The American Planning Association has produced a Zoning Practice paper (Attachment 9—Documents Related to Federal Oversight) on the topic which states that even receiving testimony may “give the cell tower applicant clear grounds to appeal a denial to federal court.” The City Attorney, Stephen P. Deitsch, has reviewed the issue of Federal vs. local authority and, citing federal law, has written an opinion that confirms local governments may not consider the “environmental effects of radio frequency emissions” so long as such facilities “comply with FCC regulations concerning such emissions.” His opinion goes on to state that “federal law requires that a local government’s decision to deny a request for a wireless communications facility installation must be ‘in writing and Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 6 of 11 supported by substantial evidence, contained in a written record.” Oral testimony in opposition to project on any topic, such as safety or aesthetics, will therefore not be sufficient to form the record for denying this application. Other Comments Received Comments have been received about the ability of the proposed pole to withstand high winds and earthquakes. As part of the building permit process, the tower will have to comply with the California Building Code (CBC), which uses a 110 m.p.h. wind speed to establish wind loads. Compliance with the CBC will ensure that the tower can withstand high winds as well as earthquake shaking. The City’s Safety Element shows that the site is not located in an area subject to liquefaction nor is it within a known earthquake fault zone. The applicant has also submitted a geotechnical study which determined the project is not within either a fault or liquefaction zone. The City’s Building Official reviewed the study and determined that exceptional or unusual construction techniques were not required to meet the CBC. It should also be noted that, to the best knowledge of staff, no cell towers fell in Arcadia during the high winds experienced in December 2011. Staff does not believe that there is any evidence to support the contention that the tower will collapse in a high wind or earthquake as long as it is constructed according to the Building Code. There were comments that the proposed eucalyptus design would not blend in well, that the location at the end of the parking lot is quite visible, and that one new Crape Myrtle street tree would not screen the facility from the residents to the north. Staff agrees that the location is not as well screened as it could be. If the tower and equipment enclosure were closer to the southeast corner of the church, the surrounding oak trees and the church buildings themselves would help hide the tower. Staff recommends, as a condition of approval, that the tower be shifted as close as feasible to the church building without harming the large oak trees near the southwest corner of the church. This location would require review by an arborist, at the applicant’s expense, to confirm that the cell tower will not harm the oaks. If this location resulted in the loss of parking spaces, the applicant would also be required to add an equal number of parking spaces in the parking lot. Other comments asked about the noise from the equipment, including the standby emergency generator. As noted previously in the staff report, during normal operations the facility will essentially generate no noise. The emergency generator will only run in the event of a power failure, and at that time will produce noise similar to a vacuum cleaner at distance of 26 feet from the generator. The closest house to the site is approximately 84 feet from the generator. At that distance, the estimated noise level would be approximately 60 dBa, which, according to the City’s Noise Element, would be nearly the same as the ambient noise level in a suburban area. Even when the emergency generator is operating, staff does not believe that the noise generated would exceed what is allowed by the Noise Element of the General Plan or cause significant harm to the health, safety or general welfare of the neighborhood. Concerns have also been raised about the harm to property values of homes near the proposed tower. The evidence provided by the opponents is anecdotal, without Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 7 of 11 supporting evidence to document impacts to property values. In addition, the Planning Commission would generally be discouraged from considering impacts to property values from proposed land uses unless it could also be demonstrated that this might lead to secondary effects such as lack of maintenance of homes and resulting blight. Virtually every land use can be described by opponents as having a negative effect on their property values. To allow consideration of such impacts in this case may open an Pandora’s Box for many other cases. FINDINGS A. Section 9275.1.2 of the Arcadia Municipal Code requires that for a Conditional Use Permit to be granted, it must be found that all of the following prerequisite conditions can be satisfied: 1.That the granting of such Conditional Use Permit will not be detrimental to the public health or welfare or injurious to the property or improvements in such zone or vicinity. The applicant has prepared the required health and safety studies showing that the proposed wireless facility will not be detrimental to the public health. The facility is located on private property and is approximately 71 feet from the nearest residence. Existing and proposed trees will substantially screen the facility from view. The monopole will be camouflaged as a eucalyptus tree to blend into the environment. As such, the proposal will not be detrimental to the public health or welfare or injurious to the other properties in the area. 2.That the use applied for at the location indicated is properly one for which a Conditional Use Permit is authorized. The zoning of The Church of the Transfiguration property is R-1, Second One- Family Zone. Arcadia Municipal Code Sections 9288.6 and 9288.8 authorize a standalone wireless facility at the proposed location, subject to approval of a Conditional Use Permit and a Waiver of the Wireless Regulations. 3.That the site for the proposed use is adequate in size and shape to accommodate said use, and all yards, spaces, walls, fences, parking, loading, landscaping, and other features required to adjust said use with the land and uses in the neighborhood. The proposed location is an approximately 200 square-foot portion of an existing developed parking lot serving the Church. The site is adequate in size and shape to accommodate the proposed wireless facility, no parking will be lost by adding the facility to the site, and only minor adjustments to the site are necessary to improve the aesthetics of the site. 4.That the site abuts streets and highways adequate in width and pavement type to carry the kind of traffic generated by the proposed use. Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 8 of 11 The Church of the Transfiguration property is accessed from First and Lemon Avenues. These streets are adequate in width and pavement type to carry the traffic generated by the current and proposed uses. The proposed project, as an unmanned wireless facility, will require only occasional access for maintenance after construction, and will have no impact on the surrounding streets. 5.That the granting of such Conditional Use Permit will not adversely affect the comprehensive General Plan. The General Plan Land Use Designation of the subject site is Low-Density Residential. Approval of the new unmanned wireless facility will not adversely affect the religious activities at the location, or create visual impacts since the proposed tower will be camouflaged as a eucalyptus tree and will blend in with the existing mature and proposed trees on the property. As such, the proposal will not adversely affect the comprehensive General Plan. B. Arcadia Municipal Code section 9288.8 allows for waiver of the prohibition of new wireless communication facilities in the R-1 zone, if the applicant demonstrates that such restriction or requirement either: 1.Prohibits or has the effect of prohibiting the provision of wireless communications services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)); or 2.Unreasonably discriminates against the applicant when compared to other providers within the City who are providing functionally equivalent wireless communication services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)). The applicant has filed a waiver request based on finding no. 1. In support of the request, the application includes the existing and proposed radio frequency propagation maps that show the coverage gap being filled by the proposed location. The application also describes the effort to find alternative locations to the site, and that this is the only feasible site that agreed to host the facility. Based on the evidence provided, and as confirmed by a review by an independent, 3rd party consultant hired by the City, the evidence shows that the applicant has exercised due diligence to find an alternative location, that the proposed site will fill a gap in coverage, and that denying the waiver would have the effect of prohibiting the provision of wireless communications services as defined in the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)). Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 9 of 11 ENVIRONMENTAL ASSESSMENT If it is determined that no significant physical alterations to the site are necessary, then this project, as new construction of a small structure, qualifies as a Class 3 Categorical Exemption per the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15303 of the CEQA Guidelines for new construction of small utility facilities. A Preliminary Exemption Assessment is attached to this staff report (Attachment No. 2). PUBLIC COMMENTS/NOTICE Public hearing notices for this continued item were mailed on March 11, 2016, to the property owners and tenants of those properties that are located within 300 feet of the subject property. As of March 16, 2016, numerous public comments had been received (Attachment 10—Public Comments). A response to those comments is included in this report. RECOMMENDATION It is recommended that the Planning Commission approve the proposal, subject to the following conditions, and find that the project qualifies for a Categorical Exemption from the California Environmental Quality Act (CEQA), and adopt Resolution No. 1952: 1.Approval of Conditional Use Permit No. CUP 15-03, Architectural Design Review No. ADR 15-06 and Wireless Regulation Waiver Request No. W 15-01 is limited to the unmanned wireless facility, which shall be operated and maintained in a manner that is consistent with the proposal and plans submitted and approved for these applications, and shall be subject to periodic inspections, after which the provisions of this Conditional Use Permit may be adjusted after due notice to address any adverse impacts to the adjacent streets, rights-of-way, and/or the neighboring businesses or properties. 2.Noncompliance with the plans, provisions and conditions of approval for CUP 15-03, ADR 15-06 and/or W 15-01 shall be grounds for immediate suspension or revocation of any approvals for the wireless facility. 3.All City requirements regarding disabled access and facilities, occupancy limits, building safety, health code compliance, emergency equipment, environmental regulation compliance, and parking and site design shall be complied with by the property owner/applicant to the satisfaction of the Building Official, City Engineer, Community Development Administrator, Fire Marshal, and Public Works Services Director, or their respective designees. Any changes to the existing facility may be subject to building permits after having fully detailed plans submitted for plan check review and approval by the aforementioned City officials and employees, or designees. Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 10 of 11 4.The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officials, officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officials, officers, employees or agents to attack, set aside, void, or annul any approval or conditional approval of the City of Arcadia concerning this project and/or land use decision, including but not limited to any approval or conditional approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and/or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officials, officers, employees, and agents in the defense of the matter. 5.Approval of CUP 15-03, ADR 15-06 and W 15-01 to allow construction of a new unmanned standalone wireless facility shall not be of effect unless on or before 30 calendar days after Planning Commission adoption of the Resolution, the property owner and applicant have executed and filed with the Community Development Administrator or designee an Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. 6.The applicant/property owner shall construct a trash enclosure, sized to comply with City requirements, including NPDES standards, on the property prior to the final inspection of any building permits issued for the wireless communications facility. Said trash enclosure shall be designed to the satisfaction of the Community Development Administrator or designee. 7.The wireless tower and equipment enclosure shall be located as close as feasible to the church building without harming the large oak trees near the southwest corner of the church. 8.Prior to issuing building permits for the tower, the applicant shall provide a report from an arborist that evaluates the proposed location to determine whether or not the cell tower will harm the oaks, and propose mitigation measures if necessary to protect the oaks. 9.If the proposed location of the tower and equipment enclosure results in the loss of parking spaces, the applicant shall add an equal number of parking spaces in the parking lot through a parking lot restriping plan. 10. If the new location of the tower and equipment enclosure blocks access to the storage container, the container shall be removed. Resolution No. 1952 – CUP 15-03, ADR 15-06, W 15-01 1881 S. First Avenue March 22, 2016 Page 11 of 11 PLANNING COMMISSION ACTION Approval If the Planning Commission intends to approve this proposal, the Commission should approve a motion to approve Conditional Use Permit No. CUP 15-03, Architectural Design Review No. ADR 15-06 and Wireless Regulation Waiver Request No. W 15-01; state that the proposal satisfies the requisite findings; and adopt the attached Resolution No. 1952 that incorporates the requisite environmental, Conditional Use Permit, and Wireless Regulation Waiver findings and the conditions of approval as presented in this staff report, or as modified by the Commission. Denial If the Planning Commission intends to deny this proposal, the Commission should approve a motion to deny Conditional Use Permit No. CUP 15-03, Architectural Design Review No. ADR 15-06 and/or Wireless Regulation Waiver Request No. W 15-01; state the finding(s) that the proposal does not satisfy with reasons based on the record; and direct staff to prepare a resolution for adoption at the next meeting that incorporates the Commission’s decision and specific findings. If any Planning Commissioner or other interested party has any questions or comments regarding this matter prior to the March 22, 2016, Planning Commission Meeting, please contact Contract Planner, Jeff Hamilton at (626) 574-5422, or jhamilton@ArcadiaCA.gov. Approved: Attachment No. 1: Resolution No. 1952 Attachment No. 2: Preliminary Exemption Assessment Information Attachment No. 3: Aerial Photo with Zoning Attachment No. 4: Architectural Plans Attachment No. 5: Visual Impact Analysis Attachment No. 6: Documents From Verizon in Support of the Application Attachment No. 7: Wireless Regulation Waiver Request Attachment No. 8: Waiver Request Evaluation Report Attachment No. 9: Documents Related to Federal Oversight Attachment No. 10: Public Comments Attachment No. 1 Resolution No. 1952 Attachment No. 1 RESOLUTION NO. 1952 Conditions of Approval 1.Approval of Conditional Use Permit No. CUP 15-03, Architectural Design Review No. ADR 15-06 and Wireless Regulation Waiver Request No. W 15-01 is limited to an unmanned wireless facility, which shall be operated and maintained in a manner that is consistent with the proposal and plans submitted and approved for these applications, and shall be subject to periodic inspections, after which the provisions of this Conditional Use Permit may be adjusted after due notice to address any adverse impacts to the adjacent streets, rights-of-way, and/or the neighboring businesses or properties. 2.Noncompliance with the plans, provisions and conditions of approval for CUP 15-03, ADR 15-06 and/or W 15-01 shall be grounds for immediate suspension or revocation of any approvals for the wireless facility. 3.All City requirements regarding disabled access and facilities, occupancy limits, building safety, health code compliance, emergency equipment, environmental regulation compliance, and parking and site design shall be complied with by the property owner/applicant to the satisfaction of the Building Official, City Engineer, Community Development Administrator, Fire Marshal, and Public Works Services Director, or their respective designees. Any changes to the existing facility may be subject to building permits after having fully detailed plans submitted for plan check review and approval by the aforementioned City officials and employees, or designees. 4.The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officials, officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officials, officers, employees or agents to -6- 1952 attack, set aside, void, or annul any approval or conditional approval of the City of Arcadia concerning this project and/or land use decision, including but not limited to any approval or conditional approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and/or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officials, officers, employees, and agents in the defense of the matter. 5.Approval of CUP 15-03, ADR 15-06 and W 15-01 to allow construction of a new unmanned standalone wireless facility shall not be of effect unless on or before 30 calendar days after Planning Commission adoption of the Resolution, the property owner and applicant have executed and filed with the Community Development Administrator or designee an Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. 6.The applicant/property owner shall construct a trash enclosure, sized to comply with City requirements, including NPDES standards, on the property prior to the final inspection of any building permits issued for the wireless communications facility. Said trash enclosure shall be designed to the satisfaction of the Community Development Administrator or designee. -7- 1952 7.The wireless tower and equipment enclosure shall be located as close as feasible to the church building without harming the large oak trees near the southwest corner of the church. 8.Prior to issuing building permits for the tower, the applicant shall provide a report from an arborist that evaluates the proposed location to determine whether or not the cell tower will harm the oaks, and propose mitigation measures if necessary to protect the oaks. 9.If the proposed location of the tower and equipment enclosure results in the loss of parking spaces, the applicant shall add an equal number of parking spaces in the parking lot through a parking lot restriping plan. 10.If the new location of the tower and equipment enclosure blocks access to the storage container, the container shall be removed. -8- 1952 Attachment No. 2 Preliminary Exemption Assessment Attachment No. 2 CITY OF ARCADIA 240 W. HUNTINGTON DRIVE ARCADIA, CA 91007 PRELIMINARY EXEMPTION ASSESSMENT (Certificate of Determination When Attached to Notice of Exemption) 1.Name or description of project:Conditional Use Permit Application No. CUP 15-03, Waiver Request Application No. W 15-1, & Architectural Design Review Application No. 15-06, for a new standalone wireless facility 2.Project Location – Identify street address and cross streets or attach a map showing project site (preferably a USGS 15’ or 7 1/2’ topographical map identified by quadrangle name): 1881 S. First Ave., Arcadia, CA (cross streets: Lemon Ave. & 1st Ave.) 3.Entity or person undertaking project:A. B. Other (Private) (1) Name Verizon Wireless (2) Address 4.Staff Determination: The Lead Agency’s Staff, having undertaken and completed a preliminary review of this project in accordance with the Lead Agency's "Local Guidelines for Implementing the California Environmental Quality Act (CEQA)" has concluded that this project does not require further environmental assessment because: a. The proposed action does not constitute a project under CEQA. b. The project is a Ministerial Project. c. The project is an Emergency Project. d. The project constitutes a feasibility or planning study. e. The project is categorically exempt. Applicable Exemption Class: Class 3 (15303(d) ) Utility extensions f. The project is statutorily exempt. Applicable Exemption: g. The project is otherwise exempt on the following basis: h. The project involves another public agency which constitutes the Lead Agency. Name of Lead Agency: Date: November 18, 2015 Staff: Jeff Hamilton, Contract Planner Preliminary Exemption Assessment\2011 FORM “A” Attachment No. 3 Aerial Photo with Zoning Information & Photos of the Subject Property Attachment No. 3 Overlays Selected parcel highlighted Parcel location within City of Arcadian/a n/a n/a n/a Property Owner(s): Architectural Design Overlay: Downtown Overlay: Special Height Overlay: Parking Overlay: Lot Area (sq ft): Year Built: Main Structure / Unit (sq. ft.): General Plan: R-1 (7,500) Number of Units: LDR Zoning: Property Characteristics 1971 3,550 0 CHURCH OF THE TRANSFIGURATION Site Address: 1881 S 1ST AVE This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. Report generated20-Nov-2015 Page 1 of 1 2.8 ac View of the southerly portion of the parking lot where the tower will be located. View of the property from the intersection of First and Lemon Avenues. Rear of the church building facing the parking lot. Small oak trees along southerly property line. Attachment No. 4 Architectural Plans Attachment No. 4 OVERALL HEIGHT = 52'-0" LEASE AREA SUMMARY Attachment No. 5 Visual Impact Analysis Attachment No. 5 Attachment No. 6 Documents Submitted by Verizon in Support Of the Wireless Communications Facility Attachment No. 6 Confidential and proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of thismaterial is not permitted to any unauthorized persons or third parties except by written agreement.1 Without Wistaria Confidential and proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of thismaterial is not permitted to any unauthorized persons or third parties except by written agreement.2 WistariaCoverage –Site by itself Confidential and proprietary material for authorized Verizon Wireless personnel only. Use, disclosure or distribution of thismaterial is not permitted to any unauthorized persons or third parties except by written agreement.3 Wistariaand Neighboring Sites Project Number: U1085-321-151 March 11, 2016 Tectonic 2081 Business Center Drive, Suite 270 Irvine, CA 92612 REFERENCE: Wistaria, 1881 South 1st Avenue Arcadia, CA 91006 Code Compliance To Whom It May Concern, We have been hired to design a structure to support the cell antenna at the above mentioned location. The building codes required by the jurisdiction to design for the wind and seismic events that could occur on this structure and cause failure are based on 7% probability of exceedance in 50 years, this give an Annual Exceedance Probability of 0.00143. This means there is a 0.14% chance every year that a wind or seismic event could occur that matches the events for which the structure was designed to withstand, and smaller chance that an event could occur that is larger than the design event. We hope this meets your needs. If you have any further questions regarding this matter, please call this office at your convenience. Very truly yours, VECTOR STRUCTURAL ENGINEERS, LLC Jacob S. Proctor, P.E. Project Engineer MAR 11 2016 Importance of Wireless coverage to Homeowners and Buyers A dozen years ago, a mere 3 percent of U.S. households used only cellphones. Given the trend, officials believe more than half of the U.S. homes will be wireless within the next year”. (Centers for Disease Control, December 1, 2015) The number of wireless only American households has grown from roughly 16% in 2007. (CTIA, Super Mobility Week Conference, 2015) More than 47 percent of American homes use only cellphones. (Centers for Disease Control, December 1, 2015) A recent survey found that cellular service is of major importance to homebuyers. (76%) was more important than schools (60%) when looking for a home. Cellular coverage trailed only crime rates (96%), local taxes (90%), and amenities like parks and shops (84%). (RootMetrics/Money, June 2, 2015) 90% of US households use wireless service. With this increase demand from users at home and those who work from home comes the need for more facilities to meet the customer needs. Citizens need access to 911 and reverse 911 and wireless may be their only connection. (CTIA, June 2015) In a recent survey, 83% of millennials (Those born between 1982 and 2004) said cell service was the most important fact in purchasing a home. (Money, June 2, 2015) Younger people rely more on wireless, too: About 71 percent of people in their late 20s live in households with only cellphones. Only 19 percent of people 65 and older use only cellphones”. (Centers for Disease Control, December 1, 2015) “..the fastest type of high speed Internet available, can add $5,437 to the price of a $175,000 home—about as much as a fireplace, or half the value of a bathroom.” (WSJ, “How Fast Internet Affects Home Prices”, June 30, 2015”) Wireless Communications Initiative Study Wireless Facilities Impact on Property Values November 2012 Background Wireless technology has dramatically changed the way the world communicates. There are over 6 billion wireless phones being used worldwide. In the United States the number of wireless phones is greater than the population. Conversely, with the advent of smart phones and wireless devices, there is increasing strain being put our already stressed wireless infrastructure. The goal of the Wireless Communications Initiative (WCI) is to enable the deployment of a 21st century wireless infrastructure. Silicon Valley is clearly driving wireless innovation and the region has consistently been an early adopter of these products. However, compared to feature phones, smartphones place 24 times the demand on wireless networks, and smart devices such as tablets command 120 times as much. Carriers are trying to respond to this revolution in technology by deploying what is called Next Generation technology. Carriers tout the capacity of their 4G or LTE (Long Term Evolution) networks as significantly more efficient in managing the burgeoning demand placed on networks by applications such as streaming video. The significant challenge facing the next phase in technology deployment is the need to place wireless facilities in residential neighborhoods. These facilities need to be closer to consumers to allow signals to be accessible within homes. This is increasingly important given that about 30 percent of homes rely solely on wireless phone service. In addition, almost 400,000 calls to 911 are made each day using wireless phones. Access to a wireless network has now become a public safety imperative. Carriers are working with cities to identify neighborhood sites for wireless facilities. However, this task has been made more difficult in some cases when a few residents raise concerns about the placement of wireless towers. These residents oppose carrier applications because of trepidations related to Radio Frequency (RF) emissions or suspicions about a negative impact on property values. The anxiety that wireless towers impact property values has been a powerful argument used by opponents to carrier applications. Oftentimes, anecdotal evidence is used to bolster these arguments, absent any factual evidence regarding the veracity of these claims. Carrier and city attempts to address these concerns can lead to long delays in deploying and upgrading wireless facilities. It isn’t unusual for a single application to be delayed for a year or more while community concerns are being addressed. This study has been designed to assess the actual effects of wireless facilities on property values. We have the capability to consider wireless facilities that have been in place for several years. We can look at hundreds of recent real estate transactions to determine what effects are present. The Study Partners The Santa Clara County Association of REALTORS® and the Silicon Valley Association of REALTORS® (SILVAR) partnered with WCI to produce the study. The members of these two organizations are involved with most transactions involving single family residences in Silicon Valley. The Associations are over 100 years old and have a rich history paralleling the growth of the region. The organizations represent thousands of real estate agents who have a deep commitment to furthering the professionalism of the industry. In addition, WCI partnered with MLS Listings to perform the actual data analysis. MLSListings, Inc. was founded in 2007 by a collaboration between several established regional multiple listing services, notably Silicon Valley’s RE InfoLink and California’s Central Valley MLS. The company created by this merger, MLSListings Inc. serves nearly 16,000 subscribers and 6,000 firms. MLSListings typically handles listings totaling nearly $70 billion annually. See Appendix B for more information about these organizations. The Methodology The data was compiled using over 1600 single-family home transactions from January to September 2012. A total of 70 wireless sites were selected in Palo Alto, Redwood City, Saratoga and San Jose. The survey compared the “list” and “sale” price for transactions based on the distant from the wireless facility. The transactions were grouped by those 1) within 1/8th of a mile, 2) 1/8 to a quarter mile and 3) a quarter to one-half mile. In addition, the study included all types of wireless facilities. These facilities may be A) a wireless tower, B) equipment placed on buildings (e.g. church, offices) or C) placed on a utility structure (e.g. pole, tower). See Appendix D for sample photographs of the sites. Sample MLS listing data query The chart below displays the aggregated results for the study. The list and sale prices are an aggregate of the all of the transactions that occurred within the specified distance from the wireless site during January to September 2012. The fourth column is derived as a percentage of the sale price to the list price. Total List Price Total Sale Price %List to Sale Palo Alto 0-0.125 mile $33,093,000 $34,243,125 103% 0.125-0.25 $219,641,507 $233,276,629 106% 0.25-0.5 $ 1,058,288,821 $ 1,094,507,081 103% Redwood City 0-0.125 mile $ 9,111,888 $ 9,306,000 102% 0.125-0.25 $36,670,398 $36,738,500 100% 0.25-0.5 $91,938,794 $92,571,249 101% Saratoga 0-0.125 mile $11,116,000 $11,168,000 100% 0.125-0.25 $77,914,560 $77,601,045 100% 0.25-0.5 $353,092,390 $350,550,126 99% San Jose 0-0.125 mile $29,024,249 $28,695,250 99% 0.125-0.25 $57,135,400 $57,075,940 100% 0.25-0.5 $157,404,541 $158,404,215 101% A listing of the addresses for the wireless sites is in Appendix A. Conclusion It is quite clear from the data that the distance from a wireless facility has no apparent impact on the value or sale price of a home. The relationship between the list and sale price remained the same no matter how close the property was to the wireless facility. In addition, we see that all the cities in the survey had similar results. The sites across all cities represent a variety of properties including those in neighborhoods with higher priced homes versus those in communities with more moderately priced homes. Most real estate professionals believe there are multiple factors that affect property values. These professionals still believe in the old adage that there are three factors: location, location, location. However, it is quite obvious that the overall economic climate can have an overriding effect on the real estate market. This year has seen a significantly stronger market for home sales, both in the number of transactions and sellers’ ability to obtain their asking price. Other factors that tend to impact property values include schools and access to transportation. This study should provide a data-based explanation of the relationship between home values and the proximity to wireless facilities. The conclusions can be understood to suggest that communities and carriers have done well in considering the placement of the technology. The Wireless Communications Initiative believes this continued commitment to resolving deployment issues will benefit our region and its neighborhoods. (Appendix A) Wireless Facilities Included In Study Palo Alto 1082 Coronado 101 Alma St 1985 Louis Road 3990 El Camino 305 N California 10950 Channing 1501 Page Mill Rd 200 Page Mill Rd 2047 bayshore 2300 Geng Rd 260 Sheridan 2666 E Bayshore Rd 2675 Hanover St 2701 Middlefield Rd 300 Pasteur Dr 3000 Alexis 3141 Maddux Dr 3401 & 3431 Hillview 345 Hamilton Ave 3475 Deer Creek Rd 3600 W Bayshore Rd 3600 Middlefied 3672 Middlefied 3862 Middleflied 4009 Miranda 4243 Manuela Ave 4249 El Camino Real 488 University Ave 525 University Ave 531 Stanford Ave 695 Arastradero 711 Colorado 724 Arastradero 850 Webster St 855 El Camino 900 Blake Wilbur Dr 799 Arastradero 760 Porter 3000 El Camino Real 675 El Camino Real 2595 E Bayshore Junipero & Stanford Page Mill & Foothill Redwood City 3025 Jefferson Ave 468 Grand St 1175 Palomar 1251 Annette 2900 Whipple Ave Saratoga 14407 Big Basin Way 14000 Fruitvale 13000 Glen Brae 13750 Prune Blossom 14091 Quito Rd 12770 Saratoga Ave 1777 Saratoga Ave 13601 Saratoga Ave 20508 Saratoga Los Gatos 19491 Saratoga Los Gatos 12393 Saratoga Sunnyvale 12413 Saratoga Sunnyvale Hwy 9 & Quito San Jose 2827 Flint Ave 930 Remillard Ct 3675 Payne Ave 144 S Jackson 366 Saint Julie Dr 1529 Newport Ave 1200 Fleming Ave 2110 Story Rd 1635 Park Ave 1700 Moffat St Disclaimer: the data was pulled on 10/2/2012 pulling only single family residence (class 1 in MLSListings, Inc.) with a time frame of all sales from 1/1/2012 to 10/2/2012 Appendix B Santa Clara County Association of REALTORS® History Santa Clara County Association of REALTORS®, established in 1896, has a long and rich history paralleling the history of Santa Clara Valley. SCCAOR, the first trade association in California, is the largest real estate board in Northern California, and was listed as one of the nation's top 20 associations by the Foundation of the American Society of Association Executives. It has come a long way since its first members took potential buyers to preview properties in horse-drawn buggies. Over the years, its members have made very significant contributions, both in the real estate industry and to the quality of life in Santa Clara County, through their community service activities. Santa Clara County Association of REALTORS®'s history is one of recognizing changing needs in the real estate industry, economy, and technology, and leading the way in responding to those needs. Santa Clara County Association of REALTORS® was the first real estate board in California to employ a Government Affairs Director to represent the interest of property owners, REALTORS® and the real estate industry, at all levels of government. Threats to property rights remain an increasingly "hot" item on legislative agendas. The Board's educational activities for members and the public consistently win state and national awards for high quality and leadership, including the Real Estate Assistants Program, developed in 1994. Ongoing classes and seminars provide Members with the most current, professional education for the benefit of their clients and their careers. In support of the many communities our members serve, SCC REALTORS® FOUNDATION, a nonprofit corporation designed to direct Member's monetary contributions to the most vital community needs, was formed in 1991. Integrity, strength and innovation are the foundation of Santa Clara County Association of REALTORS®'s history. In the same tradition, established during the past century, we are committed to being an industry leader, bringing positive action and service to our Members and communities for the next 100 years. The Silicon Valley Association of REALTORS® The Silicon Valley Association of REALTORS® (SILVAR) is a professional trade organization representing over 4000 REALTORS® and Affiliate members engaged in the real estate business on the Peninsula and in the South Bay. SILVAR promotes the highest ethical standards of real estate practice, serves as an advocate for homeownership and homeowners, and represents the interests of property owners in Silicon Valley. It is the duty and responsibility of every REALTOR® member of this Association to abide by the "Code of Ethics" of the National Association of REALTORS®. The term "REALTOR®" is a registered collective membership mark which identifies a real estate professional who is a member of the National Association of REALTORS® & who subscribes to its strict Code of Ethics. MLSListings, Inc. was founded in 2007 as a collaboration between several established regional multiple listing services, notably Silicon Valley’s RE InfoLink and California’s Central Valley MLS. As the company created by this merger, MLSListings Inc. serves nearly 16,000 subscribers and 6,000 firms in Santa Clara, Santa Cruz, Monterey, San Mateo, San Benito, Merced, San Joaquin and Stanislaus Counties – an area of approximately 28,000 square miles, reaching from San Francisco to Big Sur, and including some of the most valuable real estate in the world. MLSListings typically handles listings totaling nearly $70 billion annually. In April, 2008, MLSListings, Inc. joined with three other Northern California MLS services – San Francisco MLS, Bay Area Real Estate Services, and MetroList Services – in an unprecedented alliance to share multiple listing data throughout Northern California. This new alliance serves nearly 50,000 brokers in 19 Northern California Counties, a total population of nearly 9 million people. Appendix C Wireless Site Photographs (Sampling) 366 St. Julie Drive, San Jose 2110 Story Road, San Jose 3675 Payne, San Jose 12770 Saratoga Ave, Saratoga 14407 Big Basin Way 675 El Camino, Palo Alto 1082 Colorado St. Palo Alto 1985 Louis Road, Palo Alto 4009 Miranda, Palo Alto 4243 Manuela, Palo Alto, CA 2575 Hanover, Palo Alto Attachment No. 7 Wireless Regulation Waiver Request From Verizon Attachment No. 7 1 Waiver Request Verizon Wireless Conditional Use Permit Application for Stealth Cellular Tower Installation 1881 South 1st Avenue, Arcadia, CA 91006-4618 August 26, 2015 Revised December 9, 2015 Prepared by: Tectonic Engineering & Surveying For Applicant: Los Angeles SMSA Limited Partnership d/b/a Verizon Wireless 2 Site Overview Verizon Wireless (VZW) having identified a gap in coverage at the intersection of South Santa Anita Avenue and West Longden Avenue, proposes the Wireless Telecommunications Facility referred to as “Wistaria” to support service requirements and fulfill a coverage commitment to its customers. Within the Wistaria search ring (bounded to the north by Camino Real Ave.- to the south by Longden Ave.- to the west by El Monte Ave.- and to the East by 2nd Ave.) the preferred site selected by VZW, is located on the Church of the Transfiguration property at the southwest corner of Lemon Street and 1st Avenue at 1881 South 1st Avenue, Arcadia, CA 91006 (see Figure 1-1 Google Earth Site Map). Generally, VZW has a gap in coverage in the residential land use dominated neighborhoods of South Arcadia (see Figure 1-3 RF Propagation Map & Figure 1-4 RF Hypothetical Propagation Map). Providing effective and reliable service coverage to fill this gap is complicated by development that is primarily single family residential, current zoning prohibits wireless facilities in Residential (R-1) zoning districts and there are no feasible alternatives for new wireless telecommunication facilities within the search ring (see Figure 1-2 Arcadia Zoning Map). Figure 1-1 Google Earth Site Map Legend (Below) Figure 1-2 Arcadia Zoning Map Legend (Above) Figure 1-3 RF Propagation Map Figure 1-4 RF Hypothetical Propagation Map R-1 Second One Family S-2 Public Purpose VZW Site 1881 S. 1st Ave. Arcadia VZW Search Ring 3 Site Introduction The proposed project would allow construction and operation of a 53’ high stealth mono-eucalyptus wireless telecommunication facility. The project would be constructed in a 400 square foot section near the southern boundary of the Church of the Transfiguration parking lot. The project would provide radio frequency capacity within the City of Arcadia to better serve residents and visitors and address existing deficiencies identified by VZW. The project has been designed to blend into the existing mature vegetation within the surrounding area to minimize aesthetic effects and would be constructed consistent with all applicable standards and building codes. The project would not generate noise, air emissions or otherwise cause adverse environmental effects that could be detrimental to the public health or welfare or injurious to the property or surrounding uses. Revenue from the site lease would help fund Church of the Transfiguration preschool and community projects. The 400 square foot lease area is located generally along the southern border and near the back of the existing parking lot which fronts Lemon Street to the north. The project has been sited to meet applicable setback requirements and is scaled to match existing mature vegetation within the surrounding area. One non-dedicated parking space would be provided on-site for a technician to use when servicing the facility. A landscape plan has been prepared to identify the size, scale, plant palette and orientation needed to minimize aesthetic changes. The project site is accessible via Lemon Street. The project would require periodic (3-4 per month) visits by the technician to monitor and service the facility. Adequate parking is provided to accommodate temporary construction vehicles. One non-dedicated parking space is provided for the technician vehicle. Lemon Street has sufficient capacity to accommodate traffic. The proposed project would not impact land use or otherwise conflict with policies in the City of Arcadia General Plan, specifically Goal LU-3 and Policies LU-3.1 through LU-3.7 that pertain to low density residential uses. The project is setback from Lemon Avenue and is screened from view by intervening structures and vegetation. It would be most visible by residences to the west; however, as a stealth mono-eucalyptus, the project would blend into the visual environment. The existing scale and massing of the residential neighborhood would not be affected nor as noted above, would the project conflict with applicable General Plan policies related to low density residential areas. The site contains a church building, related structures and outdoor landscaped areas. The site would adequately provide coverage without the need to erect multiple small cell development throughout the neighborhood. This would also provide for less disruption of existing soils and environmental conditions. Given existing development in the area, the soils are presumed to be stable; however, a site specific geotechnical review would be conducted as part of the design process. Trees and other vegetation on the site are ornamental species; with the exception of a few common bird species, no other animals were observed on the site. The project site is not known to be historic or contain any culturally significant resources. Single-family residential uses are located to the north, east and west. Santa Anita Park and elementary school are located to the south. The residences in the area are primarily single-story ranch style structures. Setbacks are consistent with larger single family residential lots. Topography in the surrounding area is flat. Given existing development in the area, the soils are presumed to be stable. Trees and other vegetation are ornamental species; with the exception of a few common bird species, no other animals were observed in the area. The surrounding area is not known to be historic or contain any culturally significant resources. 4 Based on the facts presented in the sections that follow, the Church of the Transfiguration site would allow Verizon to meet coverage objectives and accommodate the project with no adverse effect on surrounding residential uses located in the R-1 zoning district. Site Justification: Infrastructural Capacity to Meet Increasing Data Demand As recent trends have reshaped the market and shifted the way cellular phones are utilized VZW has made it a top priority to provide competitive mobile data coverage. Specifically, this means more than coverage for calls but coverage for online content i.e. newsfeeds, radio feeds, social media content and all of the associated movies-videos-and music related to these sites. Consequently, Verizon Wireless relies on local jurisdictions who provide meaningful and productive input on site selection and development standards for the roll out of their ever expanding network. Verizon Wireless responding to the high demand for data coverage in service limited areas such as low density residential neighborhoods and responding to the ever increasing market demand for competitive internet/web data speeds for its customers feels that the proposed site selected at the Church of the Transfiguration is justified. Given the dominance of R-1 zoned properties in the Verizon “Wistaria” search ring it is the opinion of Verizon Wireless that there are no other viable candidates in meeting this coverage objective. The following sections will specify key obstacles to candidates identified but not selected based upon the criteria of property owner interest, geography, and logistics/operational functionality of the proposed wireless telecommunication facility “Wistaria”. The Site Selection Process Verizon Wireless initiated an extensive site acquisition process within the Wistaria search ring (bounded to the north by Camino Real Ave.- to the south by Longden Ave.- to the west by El Monte Ave.- and to the East by 2nd Ave.) with the understanding that wireless facilities are prohibited in R-1 zones by the Arcadia Municipal code. The search ring is centered on the proposed site (1881 S. 1st Ave.) at the intersection of West Lemon Avenue and 1st Street making it the preferred candidate for all of the above mentioned criteria. The search ring being almost entirely single-family residential with the exception of schools, parks, and churches presented Verizon with few candidates. Of the candidate list provided below potential Right Of Way sites were largely deemed infeasible for logistical/operational reasons. Also, VZW felt that a more centralized approach to providing coverage is an advantageous and less intrusive trend in low density single family residential neighborhoods like Arcadia. (Refer to Pic 1 below) Candidate Search: Interest letters and phone inquiries were sent to the following. Candidate 1 Arcadia Christian School (AUSD) Contact: (626) 574-8229 Joanne Address/Coordinates: 1900 S Santa Anita Ave Arcadia, CA 91006, 34 07 02.68 N 118 01 45.48 W Candidate 2 Santa Anita Park (AUSD) Contact: (626) 821-1435 ext.1 Mike Brewer Address/Coordinates: 1900 S Santa Anita Ave Arcadia, CA 91006, 34 07 02.68 N 118 01 45.48 W Candidate 3 Henry Dana Middle School Contact: (626) 821-8361 Address/Coordinates: 1401 S. 1st Ave Arcadia CA 91006, 34 07 29.40 N 118 01 43.86 W Candidate 4 City of Arcadia Right of Way Contact: (626) 256-6554 5 Site Candidates Pursued: Of the Institutional or S-2 zoned properties schools, parks, and churches were contacted and subsequently deemed infeasible due to either property owner interest, geography meeting coverage objectives, and or logistics/operational functionality. (see Fig. 1-5) Top reasons institutional land uses were not feasible: The use of a school facility was ideal however no interest was demonstrated by the neighboring schools. Interest letters received no response and calls fielded turned out no interest in establishing a wireless telecommunications site. Pic 1 Arcadia Christian School Santa Anita Ave. Santa Anita Park. This site is located adjacent to and south of the proposed site. The City of Arcadia was contacted about use of the park site to accommodate the facility. Because the park is adjacent to and used by the Arcadia Christian School, this alternative was rejected by both the City of Arcadia and Arcadia School District officials. Top reasons parks were not feasible: After several inquiries interest was not demonstrated by the City of Arcadia who controls the park nor the Arcadian Christian School who maintains regular use of the facility. At the same time the parks neighbor to the north, (The Church of the Transfiguration) was demonstrating extreme interest in the telecommunications facility and negotiations ensued. Pic 2 Santa Anita Park 6 The second school facility Henry Dana Middle School was another candidate which for geographical purposes was less than ideal due to the lack of intended coverage. Top reasons co-located sites were not feasible:  The only co-locatable site in the search ring is located in the northeast section of the drive test search ring and is not an ideal candidate in meeting the overall coverage objective.  This site has three existing wireless carriers on light standards located in the rear of the athletic field.  Also, the site is in such close proximity to Verizon Wireless’ adjacent tower site it would be an ineffective development in covering the service area gap identified. Pic 3 Henry Dana Middle School Right of Way Sites: Top reasons ROW sites were not feasible:  Parcels surrounding the proposed site extend out to the curb rendering the ROW limited to the street.  Sidewalk style small cell development necessitates multiple locations with very complex underground designs.  ROW sites are considered low in height, low RAD center will not meet coverage required for this project.  Large antennas (8ft) are required to achieve -15Dbd of gain desired, large antennas are not allowed on ROW sites. Pic 4 ROW (Lemon Ave. Looking East towards S. First Ave) 7 Figure 1-5 ROW Coverage with Neighboring Sites In conclusion and of the candidates identified the only geographically, operationally, and logistically feasible site to meet the coverage objective is the Church of the Transfiguration site. All other identified candidates were either non-responsive or supportive of siting a wireless telecommunication facility. It is for this purpose that the following statement of prohibition of wireless telecommunications facilities in this South Arcadia neighborhood is being submitted. 8 Waiver Criteria 1: Prohibits or has the effect of prohibiting the provision of Wireless Communications Services pursuant to the United States Telecommunications Act of 1996 It is the opinion of Verizon Wireless that the Arcadia Municipal code has the effect of prohibiting the provision of wireless communications services pursuant to the telecommunications act of 1996 by refusing the CUP 15-03 application on the basis of the information provided in the CUP packet. Finding that the preferred candidate, the church of the Transfiguration property being zoned Second One Family (R-1) and the Municipal Code prohibits the siting of Wireless Telecommunication Facilities in the R-1 zone, the church being not strictly a residential use operation of the wireless facility would not adversely affect operation of the church or surrounding residential properties. As referenced above, church properties in zoning districts other than R-1 were pursued as part of the siting selection process however for geographic or logistical limitations these sites were not further pursued. Therefore, due to its ideal geographic location to meet coverage objectives, the subject property was selected as the preferred site. Set-back Relief Request Further, as required through the process of siting the Tower between the City of Arcadia Planning Department and representatives from the Church of the Transfiguration a rear yard set-back relief is being formally requested by the applicant to meet City and Property Owner preference. This relief of the rear yard set-back makes logistical sense from a circulation stand point for the Church of the Transfiguration as well as ideal stealthing for the City of Arcadia Planning Department from an aesthetic point as siting the tower close to the rear property line will cluster the faux tree into the existing live trees at the back of the property. 9 Appendix: RF Drive Test Search Ring Identified 10 11 12 13 Propagation Maps Without Wistaria Wistaria Isolated 14 With Neighboring Sites and Wistaria ROW Option 15 ROW Site Option Depicting Lack of Coverage 16 EME Report (refer to attached) Appendix: Wistaria RF Justification 17 18 19 Drive Test Conclusion Appendix: RF Justification Continued RF Candidate Options 20 Collocatable Site Richard Henry Dana Middle School Middle School Lack of Intended Coverage 21 Wistaria Intended Gap Coverage 22 23 Appendix: Full Sized Site Photos Arcadia Christian School 24 Santa Anita Park 25 Henry Dana Middle School 26 ROW Example Attachment No. 8 Waiver Request Evaluation Report Attachment No. 8 Wireless Facility Engineering Review Regarding Verizon Application for a New Site at Church of the Transfiguration 1881 South 1st Avenue – Arcadia, CA Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 • Introduction Commvergent has been engaged by the City of Arcadia, CA to conduct a peer review, consistent with recognized industry standard practices, of a proposal from Verizon Wireless, to construct a wireless base station facility (cell site) located at 1881 South 1st Avenue, Arcadia, CA. COMMVERGENT has performed many similar peer reviews for municipal clients throughout the US. For purposes of this report, the site owner is Verizon Wireless and may include other corporate entities, named or unnamed, that are part of Verizon Wireless or contractors to Verizon Wireless. The wireless carrier is, for this project proposal, Verizon Wireless. These names may be referenced interchangeably, and collectively are “the applicant” or “Verizon”. • Methodology In conducting a peer review, Commvergent reviews and analyzes site application documents against wireless industry standards and best practices. In this case, Commvergent considered the application and supplemental materials as well as model calculations to verify results. Information gained from drawings and supporting documents is then used to verify data supplied in these reports and an assessment is performed of accuracy in these reports related to site placement, safety and radio frequency (RF) electromagnetic energy (EME) exposure. • Background and Scope Verizon is proposing to erect a wireless site in a residential neighborhood. The proposed compound is fenced and will contain the Verizon support equipment, power supplies, batteries, a generator, and other equipment cabinets that support the Verizon operation at this site. Also inside the containment is the base of the monopole/tree configuration that will support the antennas. This peer review report will address siting of the wireless facility. • Site Location Description and Environment The proposed facility is located at 1881 South 1st Avenue, Arcadia, California. The immediate vicinity of the site is a parking lot, a school facility, a daycare and a church building. Beyond the immediate surrounding area is residential with some distant school campus and commercial usage. The roadways nearby are residential and local streets that mostly transport people to/from activities. No major roads or expressways are noted in the vicinity of this wireless site. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 Photo above is the view of the general location with the proposed wireless site marked near the center. • Justification for the placement of the Site In a typical cell site, the target usage is often a roadway, a commercial area, a residential area, etc. This location performs as the site for residential use almost exclusively as devices migrate from a primarily business use to the personal device use we see today. Many homes rely on wireless services for primary telephone usage as well as internet access. This wireless site in a residential area will provide service primarily to residences in the area. A cell site typically will utilize the highest structure within the coverage area (within reason) in order to provide an unobstructed “view” of the coverage target area. This installation will utilize a monopole structure disguised as a tree common to the area. The current location fits well into a network design using the current best practices for cellular network design. Utilization of a different site could impact other adjacent cells precipitating other changes to the network. The proposed site will provide service in several ways, including voice, data and texting services that consumers often use. The several different radio frequency bands proposed and the types of RF emissions shown in their applications further demonstrate the varied services that will be provided by this site, including Long Term Evolution (LTE) high-speed wireless capability. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 By the nature of how radio signals propagate, or travel through the air, LTE requires a stronger signal to give the many benefits it can provide. In order to achieve stronger signals to support LTE, addition of cells (such as this one) and modification of current cells is necessary. The proposed cell site has been identified by the applicant as an LTE site, and therefore the engineering aspect of the site defaults to the most critical aspect of the service the site provides, or LTE. Coverage map projections for this site before and after installation are included in the application and demonstrate how this particular site will improve coverage. In addition, Verizon has performed a drive test of the area to verify the modeled projections of signal coverage from existing sites to confirm the data. (A drive test is a test where specialized test equipment is installed in a vehicle which is then driven through the areas in question to measure coverage or lack thereof, and is considered the most reliable of measurements of network performance). A discussion of comparative effectiveness of the sites submitted for consideration follows. Also included in this site detail is a microwave dish type antenna that will be located within the disguised area of the monopole and is planned to provide connectivity to the rest of the Verizon network. • Site Design, Height, Impacting Factors – the site proposed is a typical carrier design that mixes basic requirements to be met, and the overall impact of the site to network quality. Cost is a consideration for any business and this is no different. The proposed site will have antennas located 48 feet in the air on a monopole structure disguised as a eucalyptus tree with an overall height of 52 feet. Three antennas are planned for each of three sectors or “faces” of the antenna structure. These will be largely hidden by the tree disguise. If this site were to be reduced in height by any amount, some coverage will be sacrificed. In doing so, a new additional site will be required at a later time. Reducing this height will drive the timeline of additional sites as reduced coverage will affect the metric of additional sites proportionately. To more directly answer a question about height vs coverage – every foot in antenna height reduction will reduce coverage. Any reduction in coverage will affect the network design and impact other sites. Other Potential Sites – Engineering Discussion Four other sites were considered for the proposed wireless site. These were assessed by Verizon and two were not available per the location owners (lack of) response. An engineering assessment was not performed for these sites. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 The remaining two sites were available and were assessed from an engineering standpoint for suitability in meeting design criteria and coverage for the proposed site. The first site for discussion is the Henry Dana Middle School at 1401 S 1st Ave, Arcadia. This possible site is a middle school campus roughly 4 to 5 blocks north of the site under primary consideration. This site was evaluated for coverage and this was detailed by Verizon as requested. The coverage from this site using roughly equal parameters would leave a large area to the south uncovered, which would require an additional site in the vicinity of 10 blocks south of this location to approximate the same level of coverage. An additional technique to obtain coverage –increasing the height of the equipment tower and using an increased gain antenna to obtain better coverage—was also evaluated. A model was created for coverage at an antenna height of 75 feet. This study showed that, while the coverage was better than or equal-to the 1881 S. First Avenue site, it did not provide the complete coverage that the 1881 S 1st Avenue site provides. This antenna and tower configuration would still require an additional “fill” site in the south area of the target coverage area. Using either approach – the same design as 1881 S 1st Avenue, or a redesign at greater height-- still leaves an area of unsatisfactory coverage that would ultimately require an additional site. This would also require a higher antenna elevation which would be more visually noticeable. Following is an aerial photo of the Dana Middle School campus area. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 (1401 S 1st Ave) The other site consideration is a right-of-way (ROW) site located in the right-of-way at the 1881 S. 1st Avenue primary site. This type of site is not practical in a residential area owing to the typical site configuration and the amount of equipment needed to support each site. The lower height of the antennas would require at least 4 well placed (meaning without regard to other factors) sites in the area to duplicate coverage from the proposed site at 1881 S 1st Avenue. The difficulty in placing 4 sites in ROW locations is the sheer size of the site needed for a Verizon site. The applicant, Verizon, utilizes three different radio systems at a site to provide voice and data services. Because of this need, plus batteries and a backup generator, a compound, either above or below ground, would be a sizable undertaking. Deleting the generator would provide some benefit, however this is not a recommended configuration as wireless services are used to call 911 for emergency needs. The Verizon network uses generators at most sites to support operation in power failure for extended periods of time. • Radio Frequency (RF) Exposure Potential Safety of a potential cell site in various forms, particularly RF safety, is taken into consideration in this analysis to assure the design elements comprise a safe installation that will not promote unsafe conditions for workers or for the general public. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 The Federal Communications Commission has stated a Maximum Permissible Exposure (MPE) level for Radio Frequency (RF) energy through a scientific process to provide us with a threshold level for comparison of RF exposures. Verizon, as part of their application to the City has provided a study of potential for exposure of the general population, the so-called Uncontrolled Exposure, to persons that may be near the enclosure (walled in area). The report indicates all findings in relationship to the Controlled environment, which is acceptable as the Uncontrolled environment MPE is always 1/5 or 20% of the Controlled environment MPE, providing a reliable scale to the measurement. By Verizon’s calculation, the composite MPE will not be exceeded in areas outside the enclosure, and in fact, are far below the MPE threshold. The levels indicated are below the 20% of Controlled MPE exposure, or in other words, the Maximum level of exposure that is permitted for the general population. Independent modeling by Commvergent has confirmed these calculations are accurate. Levels at 6 feet above ground level range from 2 to 3 percent of the MPE levels for the a controlled environment, which translates to 10% to 15% of the maximum level of exposure (MPE) to the general public – still far below threshold levels. The safety of the entire installation was considered for compliance with FCC requirements and the only area inside or outside the enclosure where any signal levels are expected to exceed ANY MPE level is directly in front of the antennas and within 3 feet using the most liberal modeling methodology permitted by the FCC in their publication OET65 - Method 2. This would require someone to be suspended in mid-air in front of an antenna for several minutes – a near impossible scenario. Even so, the FCC requires that all potential exposures be marked and common safety practice enforces this practice. The general public is not allowed inside the enclosure, so only professionals that have received appropriate training will be inside the enclosure. For this reason, signage is not required outside of the enclosure. In good safety practice, the following signage should be placed inside the enclosure on the bottom section of the monopole to warn potential workers that the areas above ground (in this case, in front of antennas) may exceed MPE levels. In order to demonstrate the highest levels of safety, consistent with industry practice, the approval for this proposed cell site may contain a requirement that the access to the compound is required to be locked when not attended. In addition, the bottom 10 feet of the monopole should be “non-scalable” or not contain climbing pegs or a unprotected ladder to discourage climbing by trespassers in the compound. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 Signage outside the enclosure should contain site identification nomenclature and an emergency phone number to call for emergencies. This is also a requirement that all cell carriers are familiar with, and may be noted to avoid misunderstanding. No warning sign outside the enclosure is needed. •General Safety General site safety is important to the community and to the workers servicing equipment in the enclosure. Review of the preliminary plans for this installation indicate that the primary safety features have been incorporated. To provide a community-safe installation, the City may require that the walls and gate be of non-scalable construction. This will inhibit trespassers in the compound and around equipment. • Conclusions and Recommendations The proposed site at 1881 South 1st Avenue, Arcadia, CA has been designed to be the least practical intrusion consistent with sound engineering practices. The location of the site is consistent with good network design and location elsewhere would ultimately require both a taller site, and likely an additional cell site in the near future to fill coverage lost through use of another site. Safety at this site is essential to a community site and the general design of the site includes all basic safety requirements with the following recommendations for inclusion in any approval: 1)The yellow caution sign should be mounted on the lower section of the monopole 2)An information sign should be installed on the gate with identifying information and an emergency phone number for Verizon 3)The gate and walls of the enclosure should be non-scalable in design and construction 4)The gate to the enclosure must be kept locked when not attended. Respectfully Submitted Douglas R Dickinson Managing Consultant, COMMVERGENT Consultants January 5, 2016 Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 Douglas R Dickinson Managing Consultant/Regulatory/Safety Compliance Specialist Technical Expertise Regulatory Compliance with FCC, NEPA and OSHA regulations FCC Licensing and spectrum management Cell site development, permitting and zoning P-25 P16, and GSM large Systems Procurement and Implementation E9-1-1 system development and implementation Fiber Optic Video and surveillance systems design and implementation Voice/Data Networks •Needs Analysis •Design •Procurement •Implementation •Operations Support Microwave Networking Education Seminole Community College, general studies Florida Technological University – Engineering Studies Awards, Affiliations and Certifications Registered Lobbyist, State of Florida Past Member, Lower Nazareth PA Zoning Board APCO Presidents Award Local Frequency Advisor to APCO Northampton County E911 Mr. Dickinson has been actively involved with the development of radio systems and cell sites for over 35 years. He has served on various State and Federal level committees on spectrum issues and has worked with Canadian officials on cross-border applications. He has led the development effort for 3 major markets in cellular network launch, and is considered a subject matter expert on RF EME exposures and compliance. He has led development and launch of over 1000 cell sites and hundreds of Public Safety sites. Selected Professional & Regulatory/Compliance Experience •T-Mobile USA – Bellevue, WA – In addition to regular duties, worked with the Regulatory Department legal staff in developing FCC filings on matters such as compliance with RF EME exposure, tower safety and NEPA compliance and merger of several smaller carriers under the single T-Mobile banner. Developed regulatory compliance database and trained all markets in use. •T-Mobile USA/Omnipoint Communications – as Launch manager, was primary project manager for network build and launch in Eastern Pennsylvania, Philadelphia Region, and St Louis Region markets. Led teams of site engineers, designers, and acquisition/zoning agents through development process to market launch. •St Louis Metropolitan Area /RCC – St Louis, Worked with two FCC Regional 800MHz committees to reallocate 80 channels to the St Louis, Jefferson and St Charles counties in Missouri. Worked to find common ground between 2 state committees to forge mutually acceptable criteria for assignments that met both regional plans. •New Jersey Transit – as Director of Radio System Support, participated in development of the original NPSPAC committee which grew to incorporate all of US Public Safety. Served as NPSPAC Chair of Interoperability Sub-Committee and served as member of Regions 8 and 28 800MHz NPSPAC Committees. •Association of Public-Safety Communications Officials – as a Volunteer, worked with Director of Frequency Coordination assisting 30 NPSPAC regions develop their first frequency allotment plans to foster filing initial Regional Committee plans with the FCC. Developed software package that provided the allotment strategy. •Association of Public-Safety Communications – At various times have served as Primary FCC Frequency Advisor for Pennsylvania, Washington State, and Alaska and Alternate Advisor for New Jersey. Seattle Area Office - 42104 SE 133rd St, North Bend, WA 98045 - (425) 268-6132 Attachment No. 9 Documents Related to Federal Oversight Attachment No. 9 FEDERAL COMMUNICATIONS COMMISSION WIRELESS TELECOMMUNICATIONS BUREAU 2025 M Street, N.W., Washington, DC 20554 FACT SHEET #2 SEPTEMBER 17, 1996 NATIONAL WIRELESS FACILITIES SITING POLICIES The Telecommunications Act of 1996 (the 1996 Act) contains important provisions concerning the placement of antenna structures and other facilities for use in providing personal wireless services. State and local governments have already been working closely with wireless service providers to place such facilities within their localities. The new law establishes a framework for the exercise of jurisdiction by state and local zoning authorities over the construction, modification and placement of facilities for personal wireless services. The new law also directs the Commission to offer assistance to state and local governments in resolving wireless facilities siting issues. In that capacity, the Commission has formed a Wireless Facilities Siting Task Force to serve as a focal point for collection and dissemination of information relating to the efforts of state and local governments, as well as providers of personal wireless services, to address facilities siting concerns. The Task Force believes it can serve as a valuable information resource for state and local governments and for the industry as they carry out the responsibilities assigned them under the new law. Proper implementation of the new law will ultimately benefit the American public by preserving local zoning and land use authority, while at the same time, promoting the broad availability of these exciting new technologies. On April 23, 1996, the Wireless Telecommunications Bureau issued Fact Sheet #1 to inform the public about the provisions of Section 704 of the 1996 Act, and to assist state and local governments as they deal with the complex issues of personal wireless facilities siting in their local communities. Fact Sheet #1 summarized key provisions of Section 704, reprinted the complete text of Section 704 of the 1996 Act, provided technical information concerning personal wireless services, and, finally, answered frequently asked questions. This Fact Sheet #2 consists of four parts : PART I is a new compilation of frequently asked questions and answers; PART II summarizes the Commission's radiofrequency (RF) emission rules governing personal wireless services, adopted August 1, 1996, and sets forth the 2 most relevant RF rules for personal wireless facilities siting purposes; PART III provides revised information about those personal wireless services most likely to be submitting facilities siting requests during the upcoming year; and PART IV consists of maps showing the geographic areas used by the Commission to license cellular radiotelephone service and personal wireless services, and lists licensees for certain personal communications services. Fact Sheet #1 and Fact Sheet #2 on National Wireless Facilities Siting Policies are both available from the Commission's "fax-on-demand" system at (202) 418-2830. To obtain the 12- page Fact Sheet #1 from fax-on-demand, please reference Document Number 6507. To obtain the 39-page Fact Sheet #2, please reference Document Number 6508. Both Fact Sheets are also available on the Internet, from the Wireless Telecommunications Bureau homepage, at http://www.fcc.gov/wtb/wirehome.html. In addition to the contacts listed elsewhere in this Fact Sheet #2, questions on the following general topics should be directed to the Commission staff listed below: The Telecommunications Act of 1996 in general: Office of LegislativeVoice: (202) 418-1900 and Intergovernmental AffairsFax: (202) 418-2806 Federal regulation of wireless communications services in general: Rosalind K. AllenVoice: (202) 418-0600 Deputy ChiefFax: (202) 418-0787 Wireless Telecommunications BureauE-mail: rallen@fcc.gov Antenna structure siting, licensing issues and technical matters: Steve MarkendorffVoice: (202) 418-0620 Chief, Broadband BranchFax: (202) 418-1412 Wireless Telecommunications Bureau E-mail: smarkend@fcc.gov Commission guidelines on radiofrequency emissions: RF Safety ProgramVoice: (202) 418-2464 Office of EngineeringFax: (202) 418-1918 and TechnologyE-mail: rfsafety@fcc.gov Transmitter power, antenna structure painting and lighting requirements: Dan S. EmrickVoice: (202) 418-1170 Compliance DivisionFax: (202) 418-2813 Compliance and Information BureauE-mail: demrick@fcc.gov 3 Additional questions on wireless facilities siting issues may be addressed to the following national governmental and trade associations: American Planning Association Karen B. GrahamVoice: (202) 872-0611 Public Affairs AssociateFax: (202) 872-0643 National Association of Counties Robert J. FogelVoice: (202) 393-6226 Associate Legislative DirectorFax: (202) 393-2630 National Association of Telecommunications Officers and Advisors Eileen E. HuggardVoice: (202) 429-5101 Executive DirectorFax: (202) 223-4579 National League of Cities Frank ShafrothVoice: (202) 626-3026 Director of Policy and Federal RelationsFax: (202) 626-3043 United States Conference of Mayors Kevin S. McCartyVoice: (202) 293-7330 Assistant Executive DirectorFax: (202) 293-2352 American Mobile Telecommunications Association Jill LyonVoice: (202) 331-7773 Director of Regulatory RelationsFax: (202) 331-9062 Cellular Telecommunications Industry Association Andrea D. WilliamsVoice: (202) 785-0081 Assistant General CounselFax: (202) 785-0721 or Lauren FryVoice: (202) 785-3236 Manager for Industry EducationFax: (202) 887-1629 Personal Communications Industry Association Mark J. GoldenVoice: (703) 739-0300 x 3008 Senior VP, Industry AffairsFax: (703) 836-1608 4 PART I FREQUENTLY ASKED QUESTIONS The Commission's Wireless Facilities Siting Task Force has spent a substantial amount of time over the past three months meeting with representatives from various state and local governments and their national associations, as well as with representatives from personal wireless service providers and their trade associations. We have also answered numerous inquiries from members of the public on facilities siting and RF emission issues. The questions and answers listed below reflect the Task Force's collective assessment of those issues of most interest to parties affected by wireless facilities siting issues. PERSONAL WIRELESS SERVICES & FACILITIES 1.What are "personal wireless facilities" referenced in Section 704 of the 1996 Act? Answer: Personal wireless facilities are transmitters, antenna structures and other types of installations used for the provision of personal wireless services. Section 704 defines personal wireless services to include a broad range of spectrum-based services. All commercial mobile services fall within the definition of personal wireless services. Elsewhere in the statute, commercial mobile services have been defined as mobile services that are for-profit, are available to the public or a substantial portion of the public, and provide subscribers with the ability to access or receive calls from the public switched telephone network. Common examples of commercial mobile services are personal communications services (PCS), cellular radio mobile service and paging. Personal wireless services also includes unlicensed wireless services, which are services that are not licensed by the Commission, but are deployed through equipment that is authorized by the Commission. Finally, personal wireless services include common carrier wireless exchange access services, which are offerings designed as competitive alternatives to traditional wireline local exchange providers. 2.Are home satellite services considered "personal wireless service"? Answer: No. Section 704 of the 1996 Act specifically excludes "direct-to-home satellite services" from the definition of personal wireless services. State and local regulation of facilities used to receive these broadcast services is addressed under Section 207 of the 1996 Act. Pursuant to Section 207, the Commission has adopted rules concerning state, local, and private restrictions on viewers' ability to receive video programming signals from direct broadcast satellites, multichannel multipoint distribution (wireless cable) providers, and television broadcast stations. For more information on the Commission's rules under Section 207, please contact 1- 888-225-5322. A separate fact sheet has been prepared regarding these rules, which is available from the Commission's fax-on-demand system at (202) 418-2830 or from the Internet at http:\\www.fcc.gov\Bureaus\Common_Carrier\Factsheets\otafacts.html. 5 3.How can providers of personal wireless services benefit my community? Answer: Personal wireless services are not just car phones for businesses. Due to technological innovation and the continuing availability of additional spectrum, PCS and cellular providers are offering light-weight portable phones at increasingly affordable prices that enable consumers to make and accept calls anywhere and at anytime. It is also anticipated that providers of personal wireless services will offer wireless computer networking and wireless Internet access. Many PCS providers also intend to offer a service that will eventually compete directly with residential local exchange and exchange access services. The inherent flexibility of wireless services makes it possible to introduce new service offerings on a dynamic basis as consumer demands grow and change. Wireless services are also integral to many businesses that rely on mobility of their operations to provide goods and services to consumers. Communicating by a wireless network enables companies in various businesses, from car rentals to package delivery, to operate in a more efficient manner, and to ultimately lower the cost to the consumer while improving the quality of service. It is also worthwhile to keep in mind that the antenna structures required to deploy personal wireless services can be used for other purposes that could benefit your community. For example, a community that has a long-term plan to improve its public safety communications may be able to expedite that process by teaming with personal wireless service providers to construct new sites that could be used for deployment of both public safety and personal wireless communications. Furthermore, wireless telecommunications and data services play an increasing (and increasingly sophisticated) role in providing healthcare services. Wireless services may be particularly helpful in delivering healthcare to the home, for example, by allowing a nurse, while in a patient's home, to access the patient's vital information directly from the database at the hospital. Personal wireless service providers may also serve as a lower-cost source of advanced telecommunications capabilities for schools and libraries. Therefore, state and local governments should engage the personal wireless service providers in a dialogue about how their offerings can best serve the community. 4.Why do personal wireless service providers require so many antenna structures? Answer: Generally, low powered transmitters are an inherent characteristic of cellular radio and broadband PCS. As these systems develop and more subscribers are added, the effective radiated power of the cell site transmitters is reduced. Channels are reused at closer intervals to increase the subscriber capacity of the system, and therefore, more transmitting facilities are needed. Additionally, because broadband PCS operates at a higher frequency than cellular, these providers may require more antenna structures than cellular services to provide equivalent coverage in their service areas. 6 5.It seems as if the Commission is authorizing a large number of these personal wireless service providers. How many new antenna structures should my community expect to accommodate? Answer: Currently, there are over 40 million mobile/portable cellular units and over 22,000 cell sites operating within the United States and its Possessions and Territories. The Commission is allocating spectrum to personal wireless service providers on an ongoing basis. In addition, at the direction of Congress, the federal government is making spectrum currently allocated to federal government use available to the Commission for private sector use. As a result, it is difficult at this time to predict the ultimate number of personal wireless service providers that may serve your community. At present, however, the greatest demand for new site construction is concentrated in cellular and broadband PCS. In most parts of the country, there are two Commission-licensed entities providing cellular services. In addition, the Commission has already issued two broadband PCS licenses in each Major Trading Area, and soon will issue four more broadband PCS licenses for Basic Trading Areas. (PART IV of this Fact Sheet #2 contains maps showing the Major and Basic Trading Areas). Therefore, during the upcoming year, local governments can expect approximately eight discrete cellular and broadband PCS licensees to seek antenna facilities in each community. However, the actual number is likely to be smaller than eight due to the ability of existing cellular and PCS licensees to obtain more than one license in an area, and the expected consolidation of providers within the wireless communications industry. 6.Does the Commission maintain any records on the locations of personal wireless structures throughout the United States? Answer: The Commission maintains site information on antenna structures that may affect air navigation, including (1) antenna structures located over 200 feet above ground, and (2) antenna structures that are in close proximity to airport runways. Antenna structures that do not exceed 20 feet above existing landscape or buildings, however, are not included. Site information for structures built prior to July 1, 1996, is contained in the Commission's "tower file" database. Site information for structures built after July 1, 1996, as well as an increasing number of structures built before that date, is contained in the Commission's "antenna registration" database. The registration database will contain all the tower file information by July 1998. Additionally, the Commission's cellular and SMR licensing databases contain some site information for base stations in those services. For a fee, you can request a search of the tower file or antenna registration databases through International Transcription Service, Inc. (ITS), 2100 M Street, N.W., Suite 140, Washington, DC 20037, at (202) 857-3800. You may also view the antenna registration database on-line using the Commission's ASR Electronic Filing/Viewing Software. For more information on this software, please call (800) 322-1117. 7 The cellular and SMR databases are available for on-line viewing in the Public Reference Room of the Wireless Telecommunications Bureau's Commercial Wireless Division, located on the fifth floor of 2025 M Street, N.W., Washington, DC 20554. For more information, you may contact the Reference Room at (202) 418-1350. You may also obtain on-line access from a remote location, by contacting Interactive Systems, Inc., 1601 North Kent Street, Suite 1103, Arlington, VA 22209, at (703) 812-8270. However, because PCS licensees are issued a blanket license for their entire geographic area, the Commission does not maintain any information in its databases on the specific locations of any PCS base stations, unless they fall into the categories listed above. 7.Some people consider personal wireless service facilities to be unsightly. Is there some way to make these structures blend in with their surroundings? Answer: Antennas for personal wireless services can sometimes be mounted on existing structures such as building roof tops, church steeples, street lights, traffic lights, or electric utility substations, where they are relatively unobtrusive. Painting antenna structures to blend in with the existing structure is also an effective camouflage. Camouflaging of antennas is also used to accommodate highly specialized land use concerns. For example, a personal wireless service provider seeking to locate a transmitter site in a historic district may consider camouflaging the antenna in such structures as clock towers or artificial trees. Such camouflaging is, however, expensive and time consuming and most service providers are reluctant to routinely use the camouflage option. ZONING ISSUES 8.What types of information exchanges should occur at the beginning of the local zoning process that would be helpful both to local and state governments and to personal wireless service providers? Answer: From the perspective of the local and state governments, it is helpful for the wireless service provider to supply as much advance information as possible about the nature of its service offerings and the "big picture" plan for service deployment. Local zoning authorities have a strong interest in becoming fully informed about exactly what they are authorizing, and what will be the long-term effects of facilities siting on land use in their communities. Many personal wireless service providers have found it helpful to organize seminars aimed at acquainting local zoning authorities with their services. Community outreach is also a productive way for new wireless service providers to pave the way for introduction of their offerings. Personal wireless service providers may be able to expedite the zoning authorization process if they target, where possible, site locations that are compatible with the proposed use, such as industrial zones, utility rights of way and pre-existing structures. From the perspective of the personal wireless service provider, knowing what to expect in the zoning process is the primary concern. Therefore, state and local authorities should endeavor to provide wireless service providers with a clear picture of the zoning authorization process in 8 advance. It is also helpful for zoning authorities to share information about their land use priorities to determine where and how wireless service facilities fit into the plans. Finally, keep in mind that wireless telecommunications systems are very dynamic. Personal wireless services are thus designed to respond quickly to customer demands which may change dramatically as a result of the construction of new highways and roads and the development of new residential and business communities. 9.How do personal wireless service providers approach state and local governments to request authorization to construct, place or modify their facilities? Answer: A personal wireless service provider may have an internal antenna facilities siting team which seeks potential sites for the company's own needs, or it may hire an independent contractor to seek potential sites. Some of these independent facilities siting companies may be working on behalf of more than one Commission licensee at a time, or they may not be seeking sites for any Commission licensees at all. The local zoning authorities should therefore be aware that a facilities siting company may not be seeking the sites that are of most interest to particular Commission licensees, but rather seek general sites on highly elevated locations in the hopes of leasing the sites, in turn, to Commission licensees. 10.Can personal wireless service providers share common structures to house their transmitters? Answer: Yes, it is possible for these entities to share structures. Sharing of structures by several wireless service providers is typically referred to as "collocation." The Commission encourages collocation of antenna structures to the extent technologically feasible, and recommends that local zoning authorities engage the parties in cooperative efforts to chart the potential overlap of desirable locations, in order to minimize the number of antenna structures to be sited. It has also been our experience that personal wireless service providers are responsive to positive incentives to collocate, such as, for example, processing the zoning application of a collocating facility more quickly. There are, however, limitations on collocation, and it should not be viewed as a complete solution to all land use concerns associated with the deployment of personal wireless services. First, there are physical limitations on how many transmitters a single structure can sustain. Different tower structures have different structural tolerances. In general, there are other technical issues that the service provider must consider, including the evaluation of interference and compliance with the Commission's RF emissions criteria. In addition, personal wireless services will deploy a variety of technologies that will require differing site configurations to provide subscribers with quality service. It is also important to note that as additional service providers enter the market, they will tailor their offerings to market demands that remain unsatisfied, so that while the first two providers in the community may be able to share a site because they seek to provide similar service to a similar market, the third provider may require a new site configuration because it intends, for example, to provide wireless Internet access to the 9 community's educational institutions. For this third provider, collocation with the first two providers may therefore be technically or economically problematic. Additionally, because collocation groups many pieces of equipment on a single structure, collocation may result in larger and more obtrusive and unsightly structures than multiple, discrete installations of individual antennas and transmitters. It should also be kept in mind that personal wireless service providers are fierce competitors that are often deploying the first commercial use of a particular technology. As a result, the providers may be unwilling to share their siting plans, particularly actual site locations, because they consider these plans proprietary business information, or they may be reluctant to engage in group discussions with their competitors about siting because such conduct could be viewed as anticompetitive. Finally, because these services are new technologies, it will be difficult to predict the exact location of all sites at the time of initial service deployment, and adjustments may be necessary along the way. New technologies also present unique technical challenges. Attempts by state and local governments to "reengineer" these new technologies and service offerings may have unpredictable effects on service quality and coverage. At the same time, the new law recognizes the legitimacy of local zoning and land use concerns. Service providers and local zoning authorities are thus encouraged to work together to develop ways to protect the proprietary nature of siting plans yet still yield information that can be useful to local zoning authorities for developing overall zoning plans for personal wireless facilities. 11.How quickly must state or local zoning authorities process applications for new personal wireless antenna structures? Answer: Section 704 of the 1996 Act states that local authorities are required to act upon an application for a facility site within a reasonable period of time. The Conference Report accompanying Section 704 explains that the "nature and scope" of each request should be taken into account. The Conference Report further explains that "[i]f a request for placement of a personal wireless facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frame for zoning decision." Some state and local governments have adopted, or have considered adopting, "freezes" on the processing of facilities siting applications in anticipation of an increase in applications for personal wireless antenna structures. Many state or local governments believe that such freezes or moratoria are necessary because they are being asked to evaluate long-term land use issues without having relevant ordinances in place, and in some instances without the information they need to make these types of global assessments. Freezes of this nature are not looked upon favorably by personal wireless service providers because the providers are generally concerned 10 that moratoria (especially those that are open-ended or renewable) cause uncertainty and disruption to their business plans. In addition, wireless service providers find the lack of certainty amplified when it is not clear exactly what the state or local government is accomplishing during the moratorium other than not processing their applications. While the issue of whether moratoria are consistent with Section 704 is being developed in the courts, the Conference Report provides some guidance: "It is the intent of this section that bans or policies that have the effect of banning personal wireless services or facilities not be allowed and that decisions be made on a case-by case basis." Moratoria may have a disproportionate impact on some personal wireless service providers, who may be effectively blocked from entering the market during the pendency of the freeze, or may be inhibited from further deployment or improvement of existing service. For one court's opinion on this issue, see Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996). In certain instances, state and local governments may benefit from a brief, finite period of consideration in order to set up a process for the orderly handling of facilities siting requests. These brief periods of consideration may be most effective if the state or local government communicates clearly to wireless service providers the specific duration of the moratorium, the tasks that the local governmental entity intends to accomplish during the moratorium and the ways in which the wireless service providers can help the local government to achieve the stated goals of the moratorium by, for example, providing additional information about their needs and about their services. 12.If the state or local zoning authorities deny applications for personal wireless antenna structures, must the decisions be in writing? Answer: Yes. Section 704 of the 1996 Act mandates that the decision must be in writing, and supported by substantial evidence contained in a written record. The Conference Report explains that "substantial evidence contained in a written record" means "the traditional standard used for judicial review of agency actions." For one court's opinion on this issue, see BellSouth Mobility Inc., v. Gwinnett County, No. 1:96-cv-1268-GET (N.D. Ga. Aug. 13, 1996). 13.Section 704 states that state or local governments may not unreasonably discriminate among providers of functionally equivalent services. What types of state and local governmental actions constitute unreasonable discrimination? Answer: It appears that what constitutes "reasonable" discrimination among providers will be developed in the courts on a case-by-case basis. However, Congress' Conference Report accompanying Section 704 provides some guidance as well, explaining that the intent of the conferees is "to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services . . . unreasonably favor one competitor over another." The Conference Report further explains the intent of the conferees is to "provide localities with the flexibility to treat facilities that create 11 different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a residential district." As a general matter, there appears to be an expectation that state and local governments should endeavor to avoid making land use decisions that give one personal wireless service provider a competitive advantage over another. For one court's opinion on this issue, see Westel-Milwaukee Co., Inc. v. Walworth County, No. 95-2097, 1996 WL 496670 (Wis. Ct. App. Sept. 4, 1996). 14.What should I do if the state or local government has acted inconsistently with Section 704, and I have been adversely affected? Answer: If the state or local governmental action is inconsistent with Section 704, and you are adversely affected by such action, you may appeal the zoning authority's decision to a court of competent jurisdiction. Congress' Conference Report which accompanied Section 704 states that such actions may be filed in the federal district court in which the facilities are located or a State court of competent jurisdiction, at the option of the party appealing the decision. Section 704 also requires that such action be filed in court within 30 days after the state or local government acts or fails to act, and courts are directed to rule expeditiously on such cases. If the decision of a state or local government authority which adversely affects you is based on the environmental effects of radiofrequency emissions, such decision may be appealed to the courts or it may be appealed directly to the Commission through a request for Declaratory Ruling, pursuant to Section 1.2 of the Commission's Rules. Either way, however, the appeal must be filed within 30 days after the state or local government's action. 15.What can the federal government do to accommodate multiple providers of personal wireless services in seeking antenna structure locations? Answer: Section 704 of the 1996 Act mandates that the federal government make available property, rights-of-way, and easements under its control for the placement of new spectrum-based telecommunications services. It also provides that a presumption may be established to grant such requests absent unavoidable direct conflict with the government's mission or planned use of the locations, and that the decisions regarding siting on such locations must be fair, reasonable, and nondiscriminatory. On August 10, 1995, President Clinton issued an Executive Memorandum directing the Administrator of the General Services Administration (GSA), in coordination with other federal government departments and agencies, to develop procedures to facilitate appropriate access to federal property for the siting of mobile services antenna structures. In response to this order and the Congressional mandate, GSA has prepared a manual entitled "Government-Wide Procedures for Placing Commercial Antennas," which is published in Volume 61, page 14100 of the Federal 12 Register, issued on March 29, 1996. For more information on the use of federal property to site wireless antenna facilities, please contact James Herbert, Office of Property Acquisition and Realty Services, Public Building Service, General Services Administration, at (202) 501-0376, or write to GSA at 18th & F Streets, NW, Washington, DC 20405. Section 704 also mandated the Commission to provide technical support to states in order to encourage them to make property, rights-of-way and easements under their jurisdiction available for the placement of new spectrum-based telecommunications services. For more information on how the Commission can be of assistance to the state and local governments in this area, please contact Steve Markendorff, Chief of the Broadband Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, at (202) 418-0620, or fax (202) 418-1412, or email "smarkend@fcc.gov." RADIOFREQUENCY (RF) EMISSIONS 16.Does Section 704 preempt state and local governments from basing regulation of the placement, construction or modification of personal wireless facilities directly or indirectly on the environmental effects of RF emissions? Answer: Yes. Section 704 states that "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." 17.Have any studies been conducted on potential health hazards of locating an antenna structures close to residential communities? Answer: Many governmental agencies, scientists, engineers and professional associations have conducted studies of exposure levels due to RF emissions from cellular transmitter facilities. These levels have been found to be typically thousands of times below the levels considered to be safe by expert entities such as the Institute of Electrical and Electronics Engineers, Inc. (IEEE), and the National Council on Radiation Protection and Measurements (NCRP), as reflected in the Commission's rules governing RF emissions. 18.Has the Commission adopted new guidelines for evaluating RF exposures? Answer: Yes. In light of revised guidelines developed by the Institute of Electrical and Electronics Engineers, Inc. and adopted by the American National Standards Institute in 1992 (ANSI/IEEE C95.1-1992), the Commission initiated a proceeding in 1993 to determine whether the Commission should adopt these guidelines to replace the 1982 ANSI guidelines. Section 704 of the 1996 Act required the Commission to complete this rulemaking proceeding (ET Docket 93-62) and have in place revised RF exposure guidelines by August 7, 1996. The Commission adopted a Report and Order, FCC 96-326, on August 1, 1996, which revised the guidelines that 13 the Commission will use to evaluate the environmental effects of transmitters licensed or authorized by the Commission. The new guidelines governing transmitter facilities become effective January 1, 1997. Guidelines governing equipment authorization become effective immediately. 19.How do the new guidelines differ from the existing guidelines used by the Commission? Answer: The new guidelines are based on recommendations from the public, including federal health and safety agencies, such as the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA). These agencies recommended that we adopt elements of both the 1992 revision of the ANSI standard and the exposure criteria recommended by the National Council on Radiation Protection and Measurements. In certain respects the new guidelines are more stringent than those used previously by the Commission. For example, exposure limits allowed for the general public are stricter with respect to exposure from building-mounted and tower-mounted transmitting antennas as well as from hand-held devices such as cellular telephones. 20.Which federal agencies made recommendations to the Commission that formed a basis for the final rules? Answer: While Congress vested the Commission with the authority and responsibility for regulating the environmental effects of RF emissions, four key federal agencies with responsibility for health and safety filed comments in this proceeding and made specific recommendations. These agencies were the Environmental Protection Agency (EPA), the Center for Devices and Radiological Health (CDRH) of the Food and Drug Administration (FDA), the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA). In adopting the new guidelines, the Commission paid considerable deference to the recommendations of these federal agencies, and these agencies have reaffirmed their support for the Commission's action with letters which are part of the record in this docket. 21.What is the American National Standards Institute? Answer: The American National Standards Institute (ANSI) is a non-profit, privately funded membership organization that coordinates the development of voluntary national standards in the United States. ANSI, based in New York, New York, has a membership composed of over 1200 companies, 250 professional, technical, trade, labor and consumer organizations, and approximately 30 government agencies. ANSI and IEEE standards are often recognized by many government agencies and organizations in both the United States and abroad. 22.What is the Institute of Electrical and Electronics Engineers, Inc? The Institute of Electrical and Electronic Engineers (IEEE) is the world's largest technical 14 professional society comprised of over 320,000 engineers throughout the world. IEEE is a non- profit organization that promotes the development and application of electrotechnology and applied sciences for the benefit of humanity, the advancement of the profession and the well being of its members. The technical objectives of the IEEE focus on advancing the theory and practice of electrical, electronics and computer engineering, and computer science. IEEE standards are voluntary and these documents are developed within the Technical Committees of the IEEE Societies and the Standards Coordinating Committees of the IEEE Standards Board. Members of these committees serve voluntarily and without compensation and may or may not be members of the institute. The standards developed within the IEEE represent a consensus of the broad expertise on the subject within the Institute as well as those activities outside the IEEE that have expressed an interest in participating in the development of the standard. 23.What is the National Council on Radiation Protection and Measurements? Answer: The National Council on Radiation Protection and Measurements (NCRP) is a non- profit organization chartered by the United States Congress to provide government, the public, and industry with recommendations and guidance concerning human exposure to ionizing and non-ionizing radiation. The Commission, along with other government agencies and organizations, has an official relationship with NCRP as a "collaborating organization." 24.How will antenna sites be evaluated for RF exposure? Answer: Antenna sites will be evaluated for compliance with limits for maximum permissible exposure (MPE) if they meet the criteria based on operating power, location, or height above ground set forth in Table 1 in the new Section 1.1307 of the Commission's rules. Under the rules, all sites are required to comply with the new MPE limits, but only certain sites are required to undergo environmental evaluation. The rules provide specific guidelines and procedures for such evaluation. 25.Some carriers say their facilities are "categorically excluded" from compliance. What does that mean? Answer: In the past, the Commission categorically excluded certain radio services, including cellular, land mobile services, and others, from routine environmental evaluation requirements. Categorical exclusions are allowed under the National Environmental Policy Act if such facilities are determined, individually or collectively, to have no significant impact on the quality of the human environment. This does not mean, however, that such facilities do not have to meet the Commission's guidelines for exposure to RF emissions. Rather, it means that certain facilities will normally be assumed not to exceed the applicable MPE limits, and do not have to demonstrate compliance routinely. 15 Under the new rules, the Commission has changed the ways it determines which facilities should be categorically excluded. Instead of exempting whole services, the categorical exclusions are now based on the operating power, location, or accessibility of an individual facility. Thus, the categories requiring environmental evaluation have been changed to include some facilities which were previously categorically excluded and to categorically exclude others which were previously included. Table 1 in the new Section 1.1307 of the Commission's rules identifies those facilities that are subject to routine environmental evaluation. Thus, under the new rules which apply to cellular, PCS, and paging, as well as other services, some of a carrier's facilities may be categorically excluded, while others are subject to routine environmental evaluation. It is important to note that if the Commission receives evidence that a particular facility or equipment may not be in compliance with the MPE or specific absorption rate (SAR) limits, the Commission can require that the operator of such facility or the manufacturer of such device demonstrate compliance, even if it is otherwise categorically excluded. 26.How can I obtain a copy of the new Commission rules adopting the revised RF exposure guidelines? Answer: PART II of this Fact Sheet #2 sets forth the most relevant Commission rules governing RF emissions. Paper copies of the Commission's Report and Order which adopted these new guidelines can be obtained from the Commission's duplication contractor, International Transcription Service (ITS), 2100 M Street, N.W., Suite 140, Washington, DC 20037, at (202) 857-3800. An electronic version of the Report and Order is also available from the Internet on the Commission's Office of Engineering and Technology (OET) homepage at http://www.fcc.gov/oet. Under the section entitled "Headlines," click on the sentence concerning RF guidelines. The text of a press release and the complete Report and Order can be accessed this way. 27.How can I obtain additional information about RF safety and standards? Answer: The Commission's Office of Engineering and Technology (OET) provides technical bulletins and fact sheets that address these issues. These documents are available by mail upon request to the OET's RF Safety Information Line at (202) 418-2464. Additionally, the Commission's Compliance and Information Bureau maintains a Communications and Crisis Management Center which is staffed 24 hours a day, seven days a week. In the event of an emergency, such as a radiofrequency hazard threatening public safety or health, the public can call (202) 632-6975, or fax (202) 418-2813, or e-mail "dprescot@fcc.gov." The watch officer who answers at that number can contact the Commission's staff in the affected area and dispatch them within a matter of hours. For more general background information on the health and safety issues related to electromagnetic fields and biological effects, you may also call the Environmental Protection Agency's Electromagnetic Field (EMF) information line at 1-800-363-2383. 16 IMPACT OF PERSONAL WIRELESS FACILITIES ON AIRPLANE NAVIGATION AND ON THE ENVIRONMENT 28.Are personal wireless facilities hazardous to airplane navigation? What has the Commission done to address this problem? Answer: Antenna structures or towers which are proposed to be constructed taller than 60.96 meters (200 feet) above ground level and towers which are to be located within certain distances of airport runways must be registered with the Commission, regardless of whether or not any other notification to the Commission is required for that particular type of communications service. The Commission works closely with the Federal Aviation Administration (FAA) to ensure that Commission licensees do not construct antenna structures which may constitute a menace to air navigation because both of these agencies have jurisdiction and responsibility of regulating the construction, marking and lighting of these antenna structures. Depending on the FAA's recommendations reached upon conducting an aeronautical study of the proposed structure, the Commission may require these Commission-registered structures to be marked, painted and/or lighted, or in some situations to be constructed at a reduced height, in order to avoid becoming a public safety hazard. For more information on the FAA safety requirements, please refer to the Commission's Wireless Telecommunications Bureau's Fact Sheet PR5000 #15, entitled "Antenna Structure Registration." A copy of this Fact Sheet can be obtained by request at 1-800-322-1117, or by sending a request by email to "mayday@fcc.gov." Fact Sheet PR5000 #15 is also available on the Internet on the Commission's Wireless Telecommunications Bureau homepage at http://www.fcc.gov/wtb/antstruc.html. 29.Are there any requirements that personal wireless services providers consider the effect of their proposed facilities upon the environment? Answer: Yes. As a federal agency, the Commission is required by the National Environmental Policy Act of 1969 (NEPA) to ensure that it considers effects upon the environment of any major action that it takes. Because the Commission is a licensing agency, it requires that all licensees comply with NEPA as well, by evaluating their actions for environmental consequences. The Commission's rules implementing NEPA are found in Title 47 of the Code of Federal Regulations, Part 1, Sections 1.1301-1.1319, 47 C.F.R. §§ 1.1301-1.1319. Each licensee must evaluate the location of a proposed structure to determine if it is in an environmentally sensitive area as determined in Section 1.1307. Specifically, there are eight categories listed in Section 1.1307(a), as follows: (1)officially designated wilderness areas; (2)officially designated wildlife preserves; 17 (3)situations which may affect listed threatened or endangered species or critical habitats; (4)situations which may affect historical sites listed or eligible for listing in the National Register of Historic Places; (5)Indian religious sites; (6)100-year floodplains (as determined by the Federal Emergency Management Agency (FEMA)'s flood insurance rate maps); (7)situations which may cause significant change in surface features, such as wetland fills, deforestation or water diversion; and (8)proposed use of high intensity white lights in residential neighborhoods. Section 1.1307(b) also requires an environmental evaluation if the proposed transmitter may cause human exposure to RF radiation in excess of the Commission's adopted guidelines. If the licensee's proposed construction falls within one of these categories, the licensee is required to prepare an environmental assessment (EA), as instructed in Section 1.1311, and file that document with the appropriate Bureau of the Commission for evaluation. Pursuant to Section 1.1312, a licensee that files an EA must await Commission approval of its proposed project before commencing any construction, even if Commission approval is not otherwise required for such construction. The licensee's application is also placed on public notice as a "major action," and all interested parties are afforded a 30-day period in which to file comments on the proposed effects upon the environment. If this period expires without any negative comments, and if the Commission staff, after consulting other governmental agencies with expertise over the subject matter, makes a finding of no significant impact, then the construction can proceed. For more information on the Commission's NEPA compliance requirements and preparation of EAs in general, contact the Enforcement Division of the Wireless Telecommunications Bureau, at (202) 418-0569, or fax (202) 418-2644. 18 PART II SUMMARY OF THE COMMISSION'S REVISED RADIOFREQUENCY EMISSIONS GUIDELINES As required by Section 704 of the Telecommunications Act of 1996, on August 1, 1996, the Commission adopted new guidelines and methods for evaluating the environmental effects of radiofrequency (RF) emissions. These new guidelines apply to all transmitters licensed and/or authorized by the Commission to be sold by manufacturers. For purposes of Section 704, the RF emission rules apply to all transmitters licensed or authorized by the Commission. This would include both transmitter structures licensed to personal wireless service providers, and the mobile telephone handsets used by subscribers to the service. The updated guidelines are based on recommendations of federal agencies with expertise in health and safety issues, such as the Environmental Protection Agency and the Food and Drug Administration, as well as of the Institute of Electrical and Electronics Engineers, Inc., the American National Standards Institute and the National Council on Radiation Protection and Measurements, and will ensure that the public and workers are adequately protected from exposure to potentially harmful RF emissions. The new rules adopt two limitations on exposure to RF emissions: First, the Commission adopted Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power flux density for transmitters operating at frequencies from 300 kHz to 100 GHz, which includes, for example, cellular radio services, personal communications services (PCS) and specialized mobile radio (SMR) services. The MPE limits for field strength and power density are generally based on recommendations made by the National Council on Radiation Protection and Measurements (NCRP) in 1986. With the exception of the limits on exposure to power density above 1500 MHz and the limits for exposure to lower frequency magnetic fields, these MPE limits are also generally based on the guidelines contained in the 1992 RF safety standard developed by the Institute for Electrical and Electronics Engineers, Inc. (IEEE) and adopted by the American National Standards Institute (ANSI). Second, the Commission adopted exposure limits for Specific Absorption Rate (SAR) to be used for evaluating certain hand-held devices such as cellular radio and PCS telephones. The SAR limits for hand-held devices are the same as those recommended by ANSI/IEEE which are generally similar to those recommended by the NCRP. 19 The new rules also categorically exclude certain transmitting facilities from routine evaluation for compliance with the RF emission guidelines based on the Commission's determination that they are extremely unlikely to cause workers or the general public to become exposed to emissions that exceed the guidelines. For cellular and certain SMR facilities, transmitters are categorically excluded if they are located ten meters or more off the ground (other than on a rooftop), or if the total power of all channels is 1000 watts effective radiated power (ERP) or less. Broadband PCS facilities are categorically excluded if they are located ten meters or more off the ground (other than on a rooftop), or if the total power of all channels is 2000 watts ERP or less. Categorical exclusions for other personal wireless services are specified in the new RF rules. Facilities that are categorically excluded need not undergo routine evaluation for compliance with the Commission's guidelines, but they nevertheless must comply with these guidelines, and the Commission may order an evaluation if it determines that a facility may have a significant impact upon the human environment. If a facility is not categorically excluded, the application must contain a statement confirming that the facility will not expose workers or the general public to emissions that exceed the guidelines. Technical information showing the basis for this statement must be submitted to the Commission upon request. If the facility will expose workers to the general public to emissions that exceed the guidelines, either by itself or cumulatively with other transmitters, the applicant must prepare an environmental assessment (EA) which is filed with the Commission for its review. The applicant is not authorized to begin construction of its facilities until the EA is ultimately approved by the Commission. The new guidelines for MPE will apply to applications for transmitter facilities filed with the Commission on or after January 1, 1997, in order to provide licensees with a reasonable transition period for compliance with the new requirements. Transmitter facilities for which applications are filed before January 1, 1997, will continue to be governed by the old guidelines. However, the new requirements for SAR evaluation of hand-held devices will apply immediately to cellular and PCS handsets that are submitted for Commission approval prior to marketing. The new RF emissions rules amend various portions of the Commission's Rules which are found at Title 47 of the Code of Federal Regulations (CFR). Because these rules were just adopted, they will not appear in the CFR until the October 1996 edition, which is expected to be available in early 1997. We therefore reproduce in the next section of this Fact Sheet #2 those revised and/or new RF rules which are most relevant to personal wireless facilities siting issues. 20 SELECTED TEXT OF THE COMMISSION'S RULES ADOPTING THE NEW RADIOFREQUENCY EMISSIONS GUIDELINES The Commission's Report and Order in ET Docket No. 93-62, released on August 1, 1996, amends Parts 1, 2, 15, 24 and 97 of the Commission's Rules, which are found in Title 47 of the Code of Federal Regulations. The following is a reproduction of the most relevant existing rules (in italics) and new rule provisions added by this action (in regular text) for the purpose of personal wireless facilities siting. Deletions of rule provisions which are not relevant to the RF evaluations are indicated with asterisks (* * * * *). To obtain a hard copy of the Report and Order in ET Docket No. 93-62, including the complete text of the new and revised RF rules, contact the Commission's duplications contractor, International Transcription Service (ITS), at (202) 857-3800. An electronic copy of the text is available on the Internet at http://www.fcc.gov/oet, under the section entitled "Headlines." For more information about these RF rules, contact the Commission's Radiofrequency Safety Information Line at (202) 418-2464. PART 1—PRACTICE AND PROCEDURE Subpart I—Procedures Implementing the National Environmental Policy Act of 1969 * * * * * § 1.1307 Actions which may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared. (a) Commission actions with respect to the following types of facilities may significantly affect the environment and thus require the preparation of EAs by the applicant (see §§ 1.1308 and 1.1311) and may require further Commission environmental processing (see §§ 1.1314, 1.1315 and 1.1317): (1) Facilities that are to be located in an officially designated wilderness area. (2) Facilities that are to be located in an officially designated wildlife preserve. (3) Facilities that: (i) May affect listed threatened or endangered species or designated critical habitats; or (ii) are likely to jeopardize the continued existence of any proposed endangered or threatened species or likely to result in the destruction or adverse modification of proposed critical habitats, as determined by the Secretary of the Interior pursuant to the Endangered Species Act of 1973. NOTE: The list of endangered and threatened species is contained in 50 CFR 17.11, 17.22, 222.23(a) and 227.4. The list of designated critical habitats is contained in 50 CFR 17.95, 17.96 and Part 226. To ascertain the status of proposed species and habitats, inquiries also may be directed to the Regional Director of the Fish and Wildlife Service, Department of the Interior. 21 (4) Facilities that may affect districts, sites, buildings, structures or objects, significant in American history, architecture, archeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places. (See 16 U.S.C. 470w(5); 36 CFR 60 and 800.) NOTE: The National Register is updated and re-published in the Federal Register each year in February. To ascertain whether a proposal affects a historical property of national significance, inquiries also may be made to the appropriate State Historic Preservation Officer, see 16 U.S.C. 470a(b); 36 CFR Parts 63 and 800. (5) Facilities that may affect Indian religious sites. (6) Facilities to be located in a flood Plain (See Executive Order 11988.) (7) Facilities whose construction will involve significant change in surface features (e.g., wetland fill, deforestation or water diversion). (In the case of wetlands on Federal property, see Executive Order 11990.) (8) Antenna towers and/or supporting structures that are to be equipped with high intensity white lights which are to be located in residential neighborhoods, as defined by applicable zoning law. (b) In addition to the actions listed in paragraph (a) of this section, Commission actions granting construction permits, licenses to transmit or renewals thereof, equipment authorizations or modifications in existing facilities, require the preparation of an Environmental Assessment (EA) if the particular facility, operation or transmitter would cause human exposure to levels of radiofrequency radiation in excess of the limits in § 1.1310 and § 2.1093 of this chapter. Applications to the Commission for construction permits, licenses to transmit or renewals thereof, equipment authorizations or modifications in existing facilities must contain a statement confirming compliance with the limits unless the facility, operation, or transmitter is categorically excluded, as discussed below. Technical information showing the basis for this statement must be submitted to the Commission upon request. (1) The exposure limits in § 1.1310 are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in § 1.1310 (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in Table 1, or those specified in paragraph (b)(2) of this section. All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section. For purposes of Table 1, "rooftop" means the roof or otherwise outside, topmost level or levels of a building structure that is occupied as a workplace or residence and where either workers or the general public may have access. The term "power" in column 2 of Table 1 refers to total operating power of the transmitting operation in question in terms of effective radiated power (ERP), equivalent isotopically radiated power (EIRP), or peak envelope power (PEP), as defined in § 2.1 of this chapter. For the case of the Cellular Radiotelephone Service, subpart H of part 22 of this chapter; the Personal Communications Service, part 24 of this chapter and covered Specialized Mobile Radio Service operations, part 90 of this chapter, the phrase "total power of all channels" in column 2 of Table 1 means the sum of the ERP or EIRP of all co-located simultaneously operating transmitters of the facility. When applying the criteria of Table 1, radiation in all directions should be considered. For the case of transmitting facilities using sectorized transmitting antennas, applicants and licensees should apply the criteria to all transmitting channels in a given sector, noting that for a highly directional antenna there is relatively little contribution to ERP or EIRP summation for other directions. TABLE 1:TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL EVALUATION 22 SERVICE (TITLE 47 RULE PART)EVALUATION REQUIRED IF: Experimental Radio Services power > 100W ERP (164W EIRP) (Part 5) Radio Frequency Devicesmillimeter wave device operating in one of the following bands (Part 15)46.7-46.8 GHz, 59.0-64.0 GHz or 76.0-77.0 GHz (see §§ 15.253 and 15.255 of this chapter) unlicensed personal communications service devices operating under Subpart D of this chapter Multipoint Distribution Service non-rooftop antennas: height above ground level to radiation (Subpart K of Part 21)center < 10 m and power > 1640 W EIRP rooftop antennas: power > 1640W EIRP Paging and Radiotelephone Servicenon-rooftop antennas: height above ground level to radiation (Subpart E of Part 22)center < 10 m and power > 1000W ERP (1640W EIRP) rooftop antennas: power > 1000W ERP (1640W EIRP) Cellular Radiotelephone Servicenon-rooftop antennas: height above ground level to radiation (Subpart H of Part 22)center < 10 m and total power of all channels > 1000W ERP (1640 W EIRP) rooftop antennas: total power of all channels > 1000W ERP (1640W EIRP) Personal Communications Services(1) Narrowband PCS (subpart D): (Part 24)non-rooftop antennas: height above ground level to radiation center <10 m and total power of all channels > 1000W ERP (1640 W EIRP) rooftop antennas: total power of all channels > 1000W (1640W EIRP) (2) Broadband PCS (subpart E): non-rooftop antennas: height above ground level to radiation center <10 m and total power of all channels > 2000W ERP (3280 W EIRP) rooftop antennas: total power of all channels > 2000W (3280W EIRP) Satellite Communicationsall included (Part 25) Radio Broadcast Servicesall included (Part 73) 23 SERVICE (TITLE 47 RULE PART)EVALUATION REQUIRED IF: Experimental, Auxiliary, and(1) subparts A, G, L: Special Broadcast and Otherpower > 100W ERP Program Distributional(2) subpart I: Servicesnon-rooftop antennas: height above ground level to radiation (Part 74)center < 10 m and power > 1640 W EIRP rooftop antennas: power > 1640W EIRP Stations in the Maritime Servicesship earth stations only (Part 80) Private Land Mobile Radio Servicesnon-rooftop antennas: height above ground level to radiation Paging Operationscenter < 10 m and power > 1000W ERP (1640W EIRP) (Part 90)rooftop antennas: power > 1000W ERP (1640 W EIRP) Private Land Mobile Radionon-rooftop antennas: height above ground level to radiation Services Specialized Mobile Radiocenter < 10 m and total power of all channels > 1000W ERP ("covered" providers only -(1640 W EIRP) see below)*rooftop antennas: total power of all channels > 1000W ERP (Part 90)(1640W EIRP) Amateur Radio Servicetransmitter output power > 50W PEP (Part 97) * NOTE: "Covered" SMR providers include geographic area SMR licensees in the 800 MHz and 900 MHz bands that offer real-time, two-way switched voice service that is interconnected with the public switched network and Incumbent Wide Area SMR licensees, as defined in § 20.3 of this chapter. (2) Mobile and portable transmitting devices that operate in the Cellular Radiotelephone Service, the Personal Communications Services (PCS), the Satellite Communications Services, the Maritime Services (ship earth stations only) and covered Specialized Mobile Radio Service providers authorized under subpart H of part 22, part 24, part 25, part 80, and part 90 of this chapter are subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in §§ 2.1091 and 2.1093 of this chapter. All unlicensed PCS and millimeter wave devices are also subject to routine environmental evaluation for RF exposure prior to equipment authorization or use, as specified in § 15.253(f), § 15.255(g), and § 15.319(i) of this chapter. All other mobile, portable, and unlicensed transmitting devices are categorically excluded from routine environmental evaluation for RF exposure under §§ 2.1091 and 2.1093 of this chapter except as specified in paragraphs (c) and (d) of this section. (3) In general, when the guidelines specified in § 1.1310 are exceeded in an accessible area due to the emissions from multiple fixed transmitters, actions necessary to bring the area into compliance with the guidelines are the shared responsibility of all licensees whose transmitters produce field strengths or power density levels at the area in question in excess of 1% of the exposure limits applicable to their particular transmitter. (i) Applicants for proposed (not otherwise excluded) transmitters, facilities or modifications that would cause non-compliance with the limits specified in § 1.1310 at an accessible area previously in compliance must submit an EA if emissions from the applicant's transmitter or facility would result in a field 24 strength or power density at the area in question that exceeds 1% of the exposure limit applicable to that transmitter or facility. (ii) Renewal applicants whose (not otherwise excluded) transmitters or facilities contribute to the field strength or power density at an accessible area not in compliance with the limits specified in § 1.1310 must submit an EA if emissions from the applicant's transmitter or facility results in a field strength or power density at the area in question that exceeds 1% of the exposure limit applicable to that transmitter or facility. (4) Transition Provisions. For applications filed with the Commission prior to January 1, 1997, Commission actions granting construction permits, licenses to transmit or renewals thereof, equipment authorizations, or modifications in existing facilities require the preparation of an Environmental Assessment if the particular facility, operation or transmitter would cause human exposure to levels of radiofrequency radiation that are in excess of the requirements contained in paragraphs (4)(i) - (4)(iii) of this section. These transition provisions do not apply to applications for equipment authorization of mobile, portable, and unlicensed devices specified in paragraph (2) of this section. (i) For facilities and operations licensed or authorized under parts 5, 21 (subpart K), 25, 73, 74 (subparts A, G, I, and L), and 80 of this chapter, the "Radio Frequency Protection Guides" recommended in "American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 GHz", (ANSI C95.1-1982), issued by the American National Standards Institute (ANSI) and copyright 1982 by the Institute of Electrical and Electronics Engineers, Inc., New York, New York shall apply. With respect to subpart K of part 21 and subpart I of Part 74 of this chapter, these requirements apply only to multipoint distribution service and instructional television fixed service stations transmitting with an equivalent isotropically radiated power (EIRP) in excess of 200 watts. With respect to subpart L of part 74 of this chapter, these requirements apply only to FM booster and translator stations transmitting with an effective radiated power (ERP) in excess of 100 watts. With respect to part 80 of this chapter, these requirements apply only to ship earth stations. (ii) For facilities and operations licensed or authorized under part 24 of this chapter, licensees and manufacturers are required to ensure that their facilities and equipment comply with IEEE C95.1-1991 (ANSI/IEEE C95.1-1992), "Safety Levels With Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz." Measurement methods are specified in IEEE C95.3-1991, "Recommended Practice for the Measurement of Potentially Hazardous Electromagnetic Fields -- RF and Microwave." Copies of these standards are available from IEEE Standards Board, 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331. Telephone: 1-800-678-4333. The limits for both "controlled" and "uncontrolled" environments, as defined by IEEE C95.1-1991, will apply to all PCS base and mobile stations, as appropriate. (iii) Applications for all other types of facilities and operations are categorically excluded from routine RF radiation evaluation except as provided in paragraphs (c) and (d) of this section. (c) If an interested person alleges that a particular action, otherwise categorically excluded, will have a significant environmental effect, the person shall submit to the Bureau responsible for processing that action a written petition setting forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process. (See § 1.1313). The Bureau shall review the petition and consider the environmental concerns that have been raised. If the Bureau determines that the action may have a significant environmental impact, the Bureau will require the applicant to prepare an EA (see §§ 1.1308 and 1.1311), which will serve as the basis for the determination to proceed with or terminate environmental processing. (d) If the Bureau responsible for processing a particular action, otherwise categorically excluded, determines that the proposal may have a significant environmental impact, the Bureau, on its own motion, shall require the applicant to submit an EA. The Bureau will review and consider the EA as in paragraph (c) 25 of this section. (e) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the regulations contained in this chapter concerning the environmental effects of such emissions. For purposes of this paragraph: (1) The term "personal wireless service" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (2) The term "personal wireless service facilities" means facilities for the provision of personal wireless services; (3) The term "unlicensed wireless services" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services; and (4) The term "direct-to-home satellite services" means the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment, except at the subscriber's premises or in the uplink process to the satellite. * * * * * § 1.1310 Radiofrequency radiation exposure limits. The criteria listed in Table 1 shall be used to evaluate the environmental impact of human exposure to radiofrequency (RF) radiation as specified in § 1.1307(b), except in the case of portable devices which shall be evaluated according to the provisions of § 2.1093 of this chapter. Further information on evaluating compliance with these limits can be found in the FCC's OST/OET Bulletin Number 65, "Evaluating Compliance with FCC-Specified Guidelines for Human Exposure to Radiofrequency Radiation." NOTE TO INTRODUCTORY PARAGRAPH: These limits are generally based on recommended exposure guidelines published by the National Council on Radiation Protection and Measurements (NCRP) in "Biological Effects and Exposure Criteria for Radiofrequency Electromagnetic Fields," NCRP Report No. 86, Sections 17.4.1, 17.4.1.1, 17.4.2 and 17.4.3. Copyright NCRP, 1986, Bethesda, Maryland 20814. In the frequency range from 100 MHz to 1500 MHz, exposure limits for field strength and power density are also generally based on guidelines recommended by the American National Standards Institute (ANSI) in Section 4.1 of "IEEE Standard for Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz," ANSI/IEEE C95.1-1992, Copyright 1992 by the Institute of Electrical and Electronics Engineers, Inc., New York, New York 10017. TABLE 1:LIMITS FOR MAXIMUM PERMISSIBLE EXPOSURE (MPE) (A) Limits for Occupational/Controlled Exposure FrequencyElectric FieldMagnetic FieldPowerAveraging RangeStrengthStrengthDensityTime (MHz)(V/m)(A/m)(mW/cm)(minutes)2 0.3-3.06141.63(100)*6 3.0-301842/f4.89/f(900/f)*62 30-30061.40.1631.06 26 300-1500------f/3006 1500-100,000------56 f = frequency in MHz * = Plane-wave equivalent power density (B) Limits for General Population/Uncontrolled Exposure FrequencyElectric FieldMagnetic FieldPowerAveraging RangeStrengthStrengthDensityTime (MHz)(V/m)(A/m)(mW/cm)(minutes)2 0.3-1.346141.63(100)*30 1.34-30824/f2.19/f(180/f)*302 30-30027.50.0730.230 300-1500------f/150030 1500-100,000------1.030 f = frequency in MHz * = Plane-wave equivalent power density NOTE 1 TO TABLE 1: Occupational/controlled limits apply in situations in which persons are exposed as a consequence of their employment provided those persons are fully aware of the potential for exposure and can exercise control over their exposure. Limits for occupational/controlled exposure also apply in situations when an individual is transient through a location where occupational/controlled limits apply provided he or she is made aware of the potential for exposure. NOTE 2 TO TABLE 1: General population/uncontrolled exposures apply in situations in which the general public may be exposed, or in which persons that are exposed as a consequence of their employment may not be fully aware of the potential for exposure or can not exercise control over their exposure. * * * * * PART 24—PERSONAL COMMUNICATIONS SERVICES Subpart C—Technical Standards § 24.52 RF hazards. Licensees and manufacturers are subject to the radiofrequency radiation exposure requirements specified in § 1.1307(b), § 2.1091 and § 2.1093 of this chapter, as appropriate. Applications for equipment authorization of mobile or portable devices operating under this section must contain a statement confirming compliance with these requirements for both fundamental emissions and unwanted emissions. Technical information showing the basis for this statement must be submitted to the Commission upon request. 27 PART III MAJOR PERSONAL WIRELESS SERVICES CELLULAR RADIOTELEPHONE SERVICE The cellular radiotelephone service primarily is intended to provide consumers with mobile telephone service over a broad geographic area. A cellular system operates by dividing a large geographic service area into cells and assigning the same frequencies to multiple, non-adjacent cells. This is known as "frequency reuse." When a cellular subscriber makes or receives a call, the call is connected to the nearest cell site. As a subscriber travels within a cellular provider's service area, the cellular telephone call in progress is transferred, or "handed-off," from one cell site to another without noticeable interruption. The smaller and more numerous a provider's cells are, the more often it can reuse frequencies and the more users it can accommodate. In addition, all the cells in a cellular system are connected to a mobile telephone switching office (MTSO) by wireline (landline) or microwave links. The MTSO switches wireline-to-mobile and mobile-to- wireline calls between the public switched telephone network (PSTN) and the cell site. In order to license cellular systems in the United States and its Possessions and Territories, the Commission designated a total of 734 cellular markets divided into 306 metropolitan statistical areas (MSA) and 428 rural service areas (RSA). The Commission then allocated spectrum in the 824-849 and 869-894 MHz ranges to license two cellular radio systems in each of these 734 markets. Under Part 22 of the Commission's Rules, 47 C.F.R. §§ 22.1 et seq., cellular licensees are required to obtain licenses for only the antenna transmitter facilities which are located at the outer service contours of the particular licensee's designated service area. Licensees desiring to add or modify any facilities that are located within an already approved and licensed service area are not required to file anything with the Commission. However, the licensee is required to apply to the Commission for authority to construct and operate the site if the proposed antenna structure could have an impact upon the environment as defined by the Commission's National Environmental Policy Act (NEPA) implementation rules, 47 C.F.R. §§ 1.1301 et seq., or if the height and/or location of that antenna structure exceeds certain criteria and requires notification to the Federal Aviation Administration (FAA) as mandated by Part 17 of the Commission's Rules, 47 C.F.R. §§ 17.1 et seq. 28 PERSONAL COMMUNICATIONS SERVICES (PCS) The term Personal Communications Services (PCS) encompasses two different licensed services offered over two different frequency bands, as well as certain unlicensed services. Narrowband PCS operates on frequencies in the 901-941 MHz range and is suitable for offering a variety of specialized services, such as messaging and two-way paging. To date, the Commission has granted eleven PCS licenses for nationwide narrowband systems and six narrowband PCS licenses for each of five regions. Proceedings are still underway to determine how the remaining spectrum allocated to narrowband PCS will be licensed. Broadband PCS is similar to cellular radiotelephone service and is often mistaken as the same wireless communications service. There are, however, some significant differences between the two. First, PCS operates in a higher frequency band, at the 1850-1990 MHz range, which allows broadband PCS to deploy a wider variety of communications services, such as digital, voice, data and paging transmissions, over the same spectrum. Another distinction is that the Commission uses different geographic market areas for licensing purposes. Instead of using MSAs and RSAs as in the case of cellular, for broadband PCS the Commission adopted Rand McNally's definitions to divide the United States and its Possessions and Territories into 51 major trading areas (MTA) and 493 basic trading areas (BTA). Both the MTAs and BTAs cover the entire country. The Commission then divided the broadband PCS spectrum into six frequency bands. To date, licenses for two of these frequency bands have been issued in each MTA, and the Commission will soon license the other four frequency bands in each of the BTAs. Because PCS operates at a higher frequency than cellular service, PCS systems may require more antenna transmitters in the same geographic area. Another difference is that unlike cellular radio services, PCS licensees are issued a blanket license by the Commission for their entire geographic area, and therefore they are not required to individually license each transmitter site within the market area. Because of this blanket licensing scheme, the Commission does not maintain any technical information on file concerning the majority of PCS licensees' base stations. As with cellular radio service providers, however, a PCS licensee may still be required to notify the Commission if the proposed antenna transmitter is to be located on a structure which may have an impact upon the environment pursuant to our NEPA rules, or if the structure requires FAA notification pursuant to our antenna structure construction rules. Spectrum in the 1850-1990 MHz range has also been allocated to unlicensed PCS. As the name implies, we do not issue individual licenses to unlicensed PCS operators, but we do require them to deploy authorized equipment and comply with technical and operational standards designed to minimize interference. Unlicensed PCS operations are anticipated to be comprised of low-power short-range communications applications. SPECIALIZED MOBILE RADIO (SMR) SERVICES 29 Specialized Mobile Radio (SMR) licensees provide a variety of land mobile communication services. Systems in the SMR service range from small, localized systems offering solely dispatch communications to digital systems that offer interconnected and dispatch service over a wide geographic area. SMR systems are classified as personal wireless services if they offer interconnected service to the public on a for-profit basis. SMR systems typically consist of one or more base station transmitters, one or more antenna structures, and the end user radio equipment. The base station receives transmissions from a dispatch point, the public switched telephone network, or other end user mobile radios. SMR systems operate in two frequency ranges which the Commission categorizes as "800 MHz" (806-821/851-866 MHz) and "900 MHz" (896-901/935-941 MHz). The 800 MHz services have been licensed by the Commission on a site-by-site basis, so that the SMR provider must apply for a license with the Commission for each and every tower/base site. In the future, however, the Commission will issue geographic licenses for this service. The 900 MHz services, on the other hand, were originally licensed in 46 designated filing areas (DFA) which comprised only the top 50 geographic markets in the nation. The Commission has recently completed auctions for 20 licenses in each of the 51 MTAs, and has issued the majority of the 900 MHz SMR licenses to all those applicants that have successfully completed the auction process. COMMERCIAL PAGING SERVICES Paging services are classified as personal wireless services if they are provided to the public for profit. The Commission currently licenses paging systems by transmitter and site location, and therefore, paging providers must apply for a license with the Commission for each and every tower/base site. Commercial paging bands include the 35, 43, 152, 158, 454, and 931 MHz bands. Response paging channels will be auctioned in the future and will allow paging operators to provide two-way or response paging services. Paging systems are traditionally one-way signaling systems. Categorized by the type of output, such systems include tone, tone/voice, numeric, and alphanumeric paging. Presently, there are two basic types of systems: wide-area general-use type providing subscription service to the public, and in-building, private paging systems, which are limited to service within a commercial building or the general area of a manufacturing plant. Currently, neither of these paging systems can initiate an answer without calling through a landline telephone. OTHER SERVICES 30 RURAL RADIOTELEPHONE SERVICE, including BASIC EXCHANGE TELEPHONE RADIO SYSTEMS (BETRS), is a fixed service regulated under Subpart F of Part 22 of the Commission's Rules. BETRS is a technology that uses a multiplexed digital radio link as the last segment of the local loop. This service can be provided in the 152 and 454 MHz bands. The Commission currently licenses these systems by transmitter and site location, and therefore, the service providers must apply for a license with the Commission for each and every transmitter site. AIR-GROUND RADIOTELEPHONE SERVICE allows certain commercial mobile radio service providers to offer two-way voice communications for hire to subscribers in aircraft. This service can be provided by Commercial air-ground systems on 10 channel blocks in the 800 MHz band and by General Aviation air-ground systems in the 454.675-454.975 and 459.675-459.975 MHz bands. The Commission currently licenses these systems by transmitter and site location, and therefore, the service providers must apply for a license with the Commission for each and every tower/base site. OFFSHORE RADIOTELEPHONE SERVICE allows certain commercial mobile radio service providers to offer two-way voice and data communications for hire to subscribers on structures in the offshore coastal waters of the Gulf of Mexico. This service can be provided by offshore radio systems on 488/492 MHz paired channels. The Commission currently licenses these systems by transmitter and site location, and therefore, the service providers must apply for a license with the Commission for each and every tower/base site. IMPROVED MOBILE TELEPHONE SERVICE (IMTS) allows certain commercial mobile radio service providers to offer two-way voice communications for hire to subscribers on 152 and 454 MHz bands. It provides enhancements such as direct dialing and interconnection to the Public Switched Telephone Network (PSTN) not previously offered under the Mobile Telephone Service. The Commission currently licenses these systems by transmitter and site location, and therefore, the service providers must apply for a license with the Commission for each and every tower/base site. 31 PART IV LISTS OF PERSONAL COMMUNICATIONS SERVICES LICENSEES AND MAPS OF GEOGRAPHIC SERVICE AREAS FOR CELLULAR RADIOTELEPHONE SERVICE AND PERSONAL COMMUNICATIONS SERVICES Reproduced on the following pages is the current list of broadband PCS licensees for the "A" and "B" blocks and a list of narrowband PCS licensees. This information is also available from the Internet at http://www.fcc.gov/wtb/pcssrv.html. A list of the cellular licensees for all 734 markets is too lengthy to be included in this Fact Sheet #2. However, this information can also be obtained from the Internet at http://www.fcc.gov/wtb/cellsrv.html. Also reproduced at the end of PART IV are three maps of the United States indicating the geographic boundaries of the Metropolitan Statistical Areas and Rural Service Areas for cellular radiotelephone service and Metropolitan Trading Areas and Basic Trading Areas for PCS. 32 A BLOCK AND B BLOCK PCS LICENSEE INFORMATION NAME AND ADDRESSPOINT OF CONTACTMTA American Personal CommunicationsJonathan BlakeWashington, (Sprint Spectrum)Covington & BurlingDC/Baltimore 6901 Rockledge Dr1201 Pennsylvania Avenue, NW Bethesda, MD 20817 Washington, DC 20004 (301) 214-9200(202) 662-5506 American Portable Telecommunications, Inc.George WheelerMinneapolis, (Now renamed as APT Alaska, Inc., APTKoteen & NaftalinTampa, Houston, Columbus, Inc., APT Guam, Inc., APT Houston,1150 Connecticut Avenue, NWPittsburgh, Inc., APT Kansas City, Inc., APT Minneapolis,Suite 1150Kansas City, Inc., APT Pittsburgh Ltd. Partnership, and APTWashington, DC 20036Columbus (OH), Tampa/Orlando, Inc.)(202) 467-5700Alaska, Guam 30 N. LaSalle Street, Suite 4000 Chicago, Illinois 60602 (312) 630-1900 Ameritech Wireless Communications, Inc.Ken HallmanCleveland, 30 South Wacker DriveAmeritech Cellular ServicesIndianapolis Chicago, Illinois 60606 2000 W. Ameritech Center Drive (708) 248-8652Location 4C24 Hoffman Estates, IL 60196 (708) 248-4760 AT&T Wireless PCS, Inc.Howard SymonsNationwide MTAs 1150 Connecticut Avenue, N.W.Mintz, Levin, Cohn, Ferris, Glovsky 4th Floor& Popeo, P.C. Washington, D.C. 20036 701 Pennsylvania Avenue, NW (202) 223-9222Washington, DC 20004 (202) 434-7300 BellSouth Personal Communications, Inc.Ben AlmondCharlotte (NC), 3353 Peachtree RoadBellsouth CorporationKnoxville (TN) Suite 400, North Tower1133 21st Street, NW, Suite 900 Atlanta, Georgia 30326 Washington, DC 20036 (404) 841-2040(202) 463-4112 Centennial Cellular Corp.Richard RubinPuerto Rico 50 Locust AvenueFleischman and Walsh, L.L.P. New Canaan, Connecticut 06840 1400 16th Street, NW, Suite 600 (908) 223-6464Washington, DC 20036 (202) 939-7900 Communications International CorporationJohn PellegrinAmerican Samoa c/o Neil S. McKayPellegrin, John D., Chartered 717 West Sprague Avenue1140 Connecticut Avenue, NW Suite 1600Suite 605 Spokane, Washington 99204-0466 Washington, DC 20036 (509) 623-2028(202) 293-3831 NAME AND ADDRESSPOINT OF CONTACTMTA 33 Cox Communications, Inc.Laura PhillipsLos Angeles/ 1400 Lake Hearn Drive, N.E.Dow, Lohnes, AlbertsonSan Diego, Atlanta, Georgia 30319 1255 23rd Street, NWOmaha (NE) (404) 843-5740Washington, DC 20037 (202) 857-2824 GCI Communication Corp.Kathy ShobertAlaska 2550 Denali StreetGCI Communication Corp. Suite 1000901 15th Street, NW, Suite 900 Anchorage, Alaska 99503-2781 Washington, DC 20005 (907) 265-5647(202) 842-8847 GTE Mobilnet Inc.Suzanne CarmelAtlanta, 245 Perimeter Center Parkway GTE Service CorporationCincinnati, 3 REG1850 M Street, NW, Suite 1200Denver, Atlanta, Georgia Washington, DC 20036Seattle (404) 391-1732(202) 463-5295 Omnipoint Corp.Mark Tauber or Mark O'ConnorNew York 1365 Garden of the Gods RoadPiper & Marbury Colorado Springs, CO 80907 1200 19th Street, NW, 7th Floor (719) 548-1200Washington, DC 20036 (202) 861-3913 / (202) 861-6471 Pacific Telesis Mobile ServicesMike PatrickLos Angeles/ 4420 Rosewood DrivePacific Telesis Mobile ServicesSan Diego, Bldg. 2, 4th Floor4420 Rosewood DriveSan Francisco Pleasanton, California 94588 Bldg. 2, 4th Floor (510) 227-3015Pleasanton, CA 94588 (510) 227-3015 PCS Primeco, L.P.William RoughtonSan Antonio, 6 Campus CircleAirtouch Communications, IncDallas/Fort Worth, Westlake, Texas 76262 1818 N Street, NW, Suite 800Houston, Tampa, (817) 962-8070Washington, DC 20036Jacksonville, (202) 293-3800Miami, New Orleans, Milwaukee, Richmond (VA), Chicago, Honolulu PhillieCo, L.P.Jay KeithleyPhiladelphia 9221 Ward ParkwaySprint Co. Kansas City, Missouri 64114 1850 M Street, NW, Suite 1100 (913) 624-6940Washington, DC 20036 (202) 828-7453 Poko Lambro Telephone Cooperative, Inc.Sylvia LesseSpokane (WA)/ 11.5 Miles North of Tahoka on U.S. 87Kraskin & LesseBillings (MT), Tahoka, Texas 79373 2120 L Street, NW, Suite 520Guam (806) 924-7234Washington, DC 20037 (202) 296-8890 NAME AND ADDRESSPOINT OF CONTACTMTA 34 Powertel PCS Partners, Inc.Michele WaltersMemphis (TN), 1239 O.G. Skinner DriveHogan & Hartson, L.L.P.Birmingham (AL), West Point, Georgia 31833 555 13th Street, NWJacksonville (FL) (205) 644-9400Washington, DC 20004 (202) 637-5857 South Seas Cable and Wireless, Inc.Michael MorroneAmerican Samoa c/o 25 N. Stonington RoadKeller and Heckman South Laguna, California 92677 1001 G Street, NW, Suite 500-W (714) 499-4469Washington, DC 20001 (202) 434-4124 Southwestern Bell Mobile Systems, Inc.Steve PortnoyMemphis (TN), 17330 Preston RoadSouthwestern Bell Mobile Systems,Little Rock (AR), Suite 100-AInc.Tulsa (OK) Dallas, Texas 75252 17330 Preston Rd, Suite 100A (214) 733-2000Dallas, TX 75252 (214) 733-2116 Sprint Telecommunications VentureJay KeithleyNationwide MTAs 9221 Ward ParkwaySprint Co. Kansas City, Missouri 641141850 M Street, NW, Suite 1100 Washington, D.C. 20036 Washington, DC 20036 (913) 624-6940(202) 828-7453 Western PCS I Corp./Western PCS II Corp.Louis GurmanPortland (OR), 330 120th Avenue, N.E.Gurman, Kurtis, Blask &Des Moines (IA), Suite 200Freedman, CharteredSalt Lake City, Bellevue, Washington 98005 1400 16th Street, NW, Suite 500El Paso (TX)/ (206) 635-0300Washington, DC 20036Albuquerque (202) 328-8200(NM), Oklahoma City, Honolulu 35 NARROWBAND PCS LICENSEE INFORMATION NAME AND ADDRESSPOINT OF CONTACTMARKET AirTouch PagingJames R. Lawson or Mark A. StachiwNationwide 12221 Merit Drive, Suite 800Airtouch Paging Dallas, Texas 75251 12221 Merit Drive, Suite 800 (214) 458-5200Dallas, Texas 75251 (214)458-5200 MobileMedia Communications, Inc.Gene P. BelardiNationwide (Assigned from BellSouth Wireless, Inc.)MobileMedia PCS, Inc. 2101 Wilson Boulevard, Suite 9352101 Wilson Boulevard, Suite 935 Arlington, Virginia 22201 Arlington, Virginia 22201 (703) 312-5151(703)312-5151 Destineer Corp.Thomas GutierrezNationwide Formerly - NWMLukas, McGowan, Nace & 200 South Lamar StreetGutierrez, Chartered Security Centre, S. Bldg.1111 Nineteenth Street, N.W., Suite 1200 Jackson, Mississippi 39201 Washington, D.C. 20036 (601) 944-1300(202)828-9470 DM MessagingDavid C. JatlowNationwide 1150 Connecticut Avenue, N.W., 4th Fl.2300 N Street, N.W., Suite 600 Washington, D.C. 20036 Washington, D.C. 20037 (202) 223-9222(202)663-9080 PageMart II, Inc.Todd A. BergwallNationwide 6688 N. Central Expressway, Suite 800PageMart, Inc. Dallas, Texas 752066688 N. Central Expressway, Suite 800 (214) 750-5809Dallas, Texas 75206 (214)706-3789 Paging Network of VirginiaDavid P. GambleNationwide DBA - PageNetPaging Network, Inc. 4965 Preston Park Boulevard, Suite 6004965 Preston Park Boulevard, Suite 600 Plano, Texas 75093 Plano, Texas 75093 (214) 985-4100(214)985-4100 Advanced Wireless Messaging, Inc.George Y. Wheeler1-5 1300 Godward Street, N.E., Suite 3100Koteen & NaftalinAll Regions Minneapolis, Minnesota 55413 1150 Connecticut Ave, N.W.,Suite 1150Nationwide (612) 623-3100Washington, D.C. 20036Service (202) 467-5700 AirTouch PagingJames R Lawson or Mark A. Stachiw1, 4, 5 12221 Merit Drive, Suite 800Airtouch Paging1 = Northeast Dallas, Texas 75251 12221 Merit Drive,Suite 8004 = Central (214) 458-5200Dallas, Texas 752515 = West (214) 458-5200 NAME AND ADDRESSPOINT OF CONTACTMARKET 36 Ameritech Mobile Services, Inc.William J. Edwards3 2000 West Ameritech Center DriveAmeritech Mobile Services, Inc.3 = Midwest Hoffman Estates, Illinois 60196 1515 Woodfield Road, 14th Floor (708) 706-7640Schaumburg, Illinois 60173 (708) 706-7640 Benbow P.C.S. Ventures, Inc.June E. Walsh4 & 5 1615 Highland AvenueBenbow P.C.S. Ventures, Inc.4 = Central Eureka, California 95503 1615 Highland Avenue5 = West (707) 443-0806Eureka, California 95503 (707) 443-0806 Insta-Check Systems, IncThomas Gutierrez2 1691 N.W. 107th AvenueLukas, McGowan, Nace & Gutierrez2 = South Miami, Florida 33172 1111 19th Street, N.W., Suite 1200 (800) 222-6385 ext. 800Washington, D.C. 20036 (202) 828-9470 MobileMedia PCS, Inc.Gene P. Belardi1-5 2101 Wilson Boulevard, Suite 935MobileMedia PCS, Inc.All Regions Arlington, Virginia 22201 2101 Wilson Boulevard, Suite 935Nationwide (703) 312-5151Arlington, Virginia 22201Service (703) 312-5151 Page Call, Inc.Laura Phillips1, 2, 3 5 West 3rd StreetDow, Lohnes, Albertson1 = Northeast Coudersport, Pennsylvania 16915 1255 23rd Street, N.W.2 = South (814) 274-9403Washington, D.C. 200373 = Midwest (202) 857-28240 PageMart PCS, Inc.Todd A. Bergwall1-5 6688 N. Central Expressway, Suite 800PageMart, Inc.1 = Northeast Dallas, Texas 75206 6688 N. Central Expressway, Suite 8005 = West (214) 750-5809Dallas, Texas 75206 (214) 706-3789 PCS Development CorporationGerald S. McGowan1-5 15 South Main, Suite 810Lukas, McGowan, Nace & Gutierrez1 = Northeast Greenville, South Carolina 29601 1111 19th Street, N.W., Suite 12005 = West (803) 235-0940Washington, D.C. 20036 (202) 828-9470 FCC Regulations Tower and Antenna Siting Building a new tower or collocating an antenna on an existing structure requires compliance with the Commission’s rules for environmental review. These regulatory processes ensure that appropriate measures are taken to protect environmental and historic resources. A new tower construction requires approval from the state or local governing authority for the proposed site; compliance with the National Environmental Policy Act (NEPA); compliance with the National Historic Preservation Act (NHPA); and may require notification to the Federal Aviation Administration (FAA); and Antenna Structure Registration (ASR) with the FCC. Collocations might also require these same regulatory processes. Refer to the Collocation Agreement and Factsheet for more information about what types of collocations require compliance with NEPA, NHPA, FAA and ASR rules. Information about each of these processes is outlined below. State and Local Authorities Section 332(c)(7) of the Communications Act preserves state and local authority over zoning and land use decisions for personal wireless service facilities, but sets forth specific limitations on that authority. Specifically, a state or local government may not unreasonably discriminate among providers of functionally equivalent services, may not regulate in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services, must act on applications within a reasonable period of time, and must make any denial of an application in writing supported by substantial evidence in a written record. The statute also preempts local decisions premised directly or indirectly on the environmental effects of radio frequency (RF) emissions, assuming that the provider is in compliance with the Commission's RF rules. Allegations that a state or local government has acted inconsistently with Section 332(c)(7) are to be resolved exclusively by the courts (with the exception of cases involving regulation based on the health effects of RF emissions, which can be resolved by the courts or the Commission). Thus, other than RF emissions cases, the Commission's role in Section 332(c)(7) issues is primarily one of information and facilitation. are your cell tower standards in compliance with federal law? 8 Zoning PracticeAMERICAN PLANNING ASSOCIATION205 N. Michigan Ave.Suite 1200Chicago, IL 60601–59271030 15th Street, NWSuite 750 WestWashington, DC 20005–1503 zoning Practice August 2011 AMERICAN PLANNING ASSOCIATION issue number 8 Practice telecommunications 8 zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 2 Federal Cell Tower zoning: Key Points and Practical Suggestions By John W. Pestle Congress frst became involved with cell tower zoning with the passage of the Telecommunications Act of 1996, which added provisions entitled “Preservation of Local zoning Authority” (47 U.S.C. § 332(c)(7)) to the principal federal telecommunications statute, the Communications Act of 1934. This article summarizes key points regarding the Act as it has actually been interpreted and applied by the courts and Federal Communications Commission (FCC) during the 15 years since it was passed. As interpreted by the courts, the Act does not affect many or most substantive provisions of local zoning law. However, it does impose procedural and administrative requirements that are unique to cell tower zoning. it is on these requirements where cell phone companies have been most suc- cessful in claims against local governments for violations of the Act. The stakes are high for planners and public offcials because, generally, the rem- edy imposed by federal courts for violations of the Act is an order approving a zoning application “as applied for” without any of the restrictions that might ordinarily have been imposed in the public interest during the zoning process. Finally, how the Act is actually applied varies geographically due to different federal appeals courts’ interpretations. in addi- tion, how to comply with the Act can vary based on local ordinances and state laws. Accordingly, this article only provides an overview of the main points regarding the Act. Planners and local offcials should con- sult with their municipal attorneys on how best to comply with the Act. Why More cell toWers? A cellular tower is a free-standing structure supporting one or more cellular antennas. Cellular antennas also can be mounted on buildings, water towers, or other structures. For convenience, the terms cell tower and cellular tower are used to refer to cell tow- ers, cellular antennas, and associated equipment. There were over 256,000 cell towers in the United States at the end of 2010. installations of cell towers continue to in- crease at a rapid pace due to the demand for increased capacity as cell phones evolve into small mobile computers used to surf the web, receive and transmit videos, pic- tures, and other data, as well as carry con- ventional voice conversations. Web surfng, videos, pictures, and data use far more cell tower and provider network capacity than do phone calls. in addition, approximately 100,000 new towers are being added for WiMax, which uses cell phone-type anten- nas to provide high-speed wireless internet access on a city or countywide basis, usually for a fee. Finally, the federal government is promoting the expansion of wireless service as one of the main ways to achieve its goal of expanding broadband service availability nationwide. Background on the act At the time Congress was considering the Act, the FCC had a proceeding under way to preempt local zoning of cellular towers. The Act terminated that proceeding, and Congress did not generally preempt local zoning or turn the FCC into a federal zoning authority for cellular towers. instead, the Act basically preserves local zoning while add- ing some additional federal requirements. Many communities encourage or require colocation of cell towers. This example shows how cellular antennas can be added to existing electrical transmission towers. Wikimedia Commons/Therearenospoons ASK THe AUTHor Join US onLine! about the authors John W. Pestle is an attorney and chair of the Telecommunications group at Varnum LLP. He represents municipalities across the country on cable and telecommunications matters. He is a graduate of Harvard, Yale, and the University of Michigan Law School and received the Member of the Year award from the national Association of Telecommunications offcers and Advisors for his representation of municipalities on matters concerning the Federal Telecommunications Act of 1996. Pestle provides model cell tower leases to municipalities (www.varnumlaw.com/lease) and has a frequently updated paper for municipal attorneys that summarizes and provides citations to the various cases that formed the basis for this article. He can be contacted at 616-336-6000, ext. 6725, or by e-mail at jwpestle@varnumlaw.com. Go online during the month of August to participate in our “Ask the Author” forum, an interactive feature of zoning Practice. John W. Pestle will be available to answer questions about this article. Visit the APA website at www.planning.org and follow the links to the Ask the Author section. From there, submit your questions about the article using the e-mail link. The author will reply, and zoning Practice will post the answers cumulatively on the website for the beneft of all subscribers. This feature will be available for selected issues of zoning Practice at announced times. After each online discussion is closed, the answers will be saved in an online archive available through the APA zoning Practice web pages. zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 3 Wikimedia Commons Although the cell tower zoning amend- ments focused principally on “cell phone service,” technically the Act covers “per- sonal wireless services” and facilities used to provide personal wireless services as de- fned in 47 U.S.C. § 332(c)(7)(C). The terms include the antennas and facilities used to provide not just cell phone service but also “fxed wireless” (similar to microwave point- to-point) services and other similar services. Finally, municipalities must comply with state and local zoning laws applicable to cell towers. if the state or local law is more restrictive then the Act, then the more restrictive law controls. This follows from the basic principle that the Act is an overlay on traditional zoning law, which is largely pre- served. For example, in one case, a federal court reversed a local zoning decision be- cause it used aesthetics to deny an applica- tion for a cell tower to be located in a public right-of-way. Aesthetics are allowed under the Act, but under the applicable state law, municipalities could not consider aesthetics for utility fxtures located in public rights-of- way (cell phone companies were public utili- ties in the state in question). reMedies The most troubling aspect of the Act relates to remedies for violations. in contrast to many state laws, the remedy that wireless providers usually request, and which courts frequently impose, is an order granting the cell tower zoning application “as applied for.” The rationale for this result is a provi- sion that directs the courts to handle cell tower zoning cases “on an expedited basis.” Cell phone companies contend this means the remedy for violations must be approval of the zoning application, not a remand with consequent delay. in many instances the courts have agreed. Such decisions can cause well-inten- tioned municipal actions to have adverse effects. For example, in a 2005 case, the City of Chattanooga found that seven cell tower zoning applications did not comply with a recent zoning ordinance change. rather than rejecting them and allowing them to be re- fled, the city delayed action on the applica- tions to allow the provider a chance to bring them into compliance with the revised ordi- nance. After the applications sat for a period of time, the provider sued the city, and the federal court ordered all seven applications to be approved as applied for because the city had been too slow in acting! More recent federal decisions show some tendency to move away from the “approval order” remedy toward the more traditional remedy of a remand for proceed- ings in compliance with the court’s order. However, as a practical matter, municipali- ties are well advised to be careful to comply with the Act so as to make sure they do not receive the harsh remedy described above. on the bright side, it is clear that pro- viders cannot get attorney fees or damages either under the Act itself or Section 1983 (Civil rights Act) for violations. This was resolved in 2005 by the U.S. Supreme Court, supplemented by later decisions of the fed- eral appellate courts. procedural rules As interpreted by the courts, the Act creates procedural requirements for cell tower zon- ing applications that often differ signifcantly from typical local practices. As a result, pro- cedural challenges are one of the areas where cellular companies have been most success- ful in appealing local zoning decisions. Written decision/separate record Municipalities can inadvertently violate the Act by running afoul of its “written deci- sion/separate record” requirement. These requirements derive from a provision stating that cell tower zoning decisions “be in writ- ing and supported by substantial evidence contained in a written record” (47 U.S.C. § 332 (c)(7)(B)(iii)). Most courts that have con- sidered this issue have adopted a require- ment that a municipality’s written decision simply must provide a suffcient explanation for the court to be able to conduct a mean- ingful review of it. in a signifcant deviation from local practice in many municipalities, some courts have required that the written zoning decision be separate from the written record or transcript of the local zoning proceed- ing. This means that local decisions may be open to challenge by providers if they are not clearly separated from the hearing or proceeding at which evidence is taken. Until there is a clear resolution on the “separate record” issue, a practical approach is for a municipality not to make a formal deci- sion at the zoning meeting or city council meet- ing where the zoning hearing occurs or an ap- peal is heard. instead, following the hearing or the close of an appeal the municipality should direct counsel or staff to prepare a written order or decision along specifed lines (for example, denying the application generally or approving zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 4 it with conditions) for the municipal body to consider at its next meeting. Then, at the next meeting, the municipal body considers the proposed decision, modifes it as necessary, and adopts it. Meeting minutes should refect this. Proceeding in this fashion ensures that the municipality’s decision complies with the written decision/separate record requirement. Perhaps more important, using the two-step approach helps ensure that a mu- nicipality’s decision is well documented and conforms with local, state, and federal law, thus providing the maximum assurance that it will be upheld on appeal. For example, in a recent California case, a municipality’s carefully reasoned decision resulting from the use of the two-step approach appears to have contributed signifcantly to a federal court’s decision to uphold the municipality’s denial of several cell tower zoning applica- tions predominantly on aesthetic grounds. timely actions and Fcc shot clocks The Act contains a requirement that cell tower zoning decisions occur in a timely fashion, specifcally “within a reasonable period of time after the request is duly fled . . . taking into account the nature and scope of such request.” However, the FCC has effec- tively rejected this individualized time period approach by setting blanket time frames for action on all cell tower zoning requests through two orders that have come to be known as the “shot clock” orders. in late 2009 the frst FCC order imposed a 90-day shot clock for colocations and 150 days for new cellular towers, and in August 2010 it followed this up with an order clarify- ing certain points (and rejecting requests for changes). Because the orders are declara- tory rulings, no “rule’” was issued. instead, municipalities and providers have to exam- ine the approximately 40 pages of text that comprise the two FCC orders to attempt to understand and interpret them. And the two orders are not always entirely consistent. The FCC decided that 90 days (not 150) was reasonable for colocations because they often are easier to process than new towers and may involve little or no new construc- tion. The FCC defned colocations in footnote 146 of its initial shot clock order. Because the defnition is both highly detailed and adapted from an unrelated proceeding, it is unlikely to coincide exactly with the defni- tion of colocation in local ordinances. in general, under the shot clocks a zon- ing application for an additional antenna at a given location is not a colocation if it involves more than a 10 percent increase in height, more than four new equipment cabinets or one new equipment shelter, extends more than 20 feet from the tower, or if excavation is needed outside the current tower site. Under the shot clocks municipalities must act on a cell tower zoning application within the 90/150-day time frame. if they take longer, the burden is on them to justify to a court why it was reasonable to take longer. in recognition that zoning applications can be incomplete, the orders state that the time frames do not include the time for an applicant to respond to a request for additional information. However, this extension only applies if the municipality notifes the applicant within 30 days of fling that the application is incomplete, which cre- ates practical problems when the need for additional information only appears after the review is well under way. Due to the short time periods involved, municipalities should require a provider to state in its zoning application which shot clock (90- or 150-day) it contends applies to its request. And if the provider contends that it is the 90-day shot clock, it should be required to identify the specifc criteria in the FCC shot clock order it meets. By doing this, municipali- ties will know which time frame the provider contends is applicable and will be able to de- cide if the claim is accurate. More importantly, municipalities will avoid the harmful situation where the municipality believes that it has 150 days to act while the provider contends that the 90-day shot clock applies. The FCC orders state that the shot clocks can be extended (“tolled”) by mutual agreement. As a practical matter, both par- ties may want to extend the applicable time periods to avoid a provider having to refle because a municipality believes it needs to deny a zoning application (without preju- dice) due to incompleteness, or to prevent a shot clock from expiring. in response to the shot clocks, some municipalities have adopted detailed ap- plication forms for cell tower zoning matters to better ensure that all requisite documents and other information are provided at the outset. in addition, some municipalities are conducting a more detailed check for the presence and completeness of all relevant attachments and signatures at the fling counter before a cell tower zoning applica- tion will be accepted. in seminars about the FCC shot clocks, the most frequently asked question is how the shot clocks apply when a municipality has a two-step zoning process—for example a planning commission makes an initial zoning decision and a disaffected party has the option of an internal (not court) appeal to a board of zoning appeals or city council. Municipalities frequently ask: Do the shot clocks apply just to the frst step—the plan- ning commission decision—or do they apply to the entire process? The short answer is that the FCC has refused to address this question, although it was asked do so in its August 2010 order. With this in mind, municipalities should carefully calendar and compute the 90- and 150-day time periods from the out- set and then work backward to make sure that they act within the requisite time period after allowing for all notices, possible inter- nal appeals, preparation of written orders, and the like. Under the Act there are good legal grounds (not as yet ruled on by the courts or FCC) for contending that the shot clocks legally can only apply to a municipality’s initial zoning decision (the planning com- mission decision in the example above). if it is not possible to complete the second step (appeal to board of zoning appeals or equivalent) of the zoning process within the appropriate time frame, then municipalities should seek a mutually agreed-upon exten- sion from the provider. it may help to point out to the provider that under the Act it has only 30 days from the expiration of a shot clock to fle suit for exceeding the clock. in some cases it may be possible to get the provider to agree to an extension (including where only the board of zoning appeals has the authority to grant a needed variance) because the municipality will otherwise contend that the shot clock was met when the planning commission is- sued its decision. And by the time the board of zoning appeals rules, which is more than 30 days later, the provider will have lost its right to go to federal court, unless it agrees to an extension. Additionally, the municipality should carefully keep track of any events that might cause the shot clocks to be exceeded. For ex- ample, if additional information is needed from the provider, the municipality should request it in writing with a very short time to respond, stating that this is due to the shot clocks and that any delay may cause a delay in the munici- pality’s decision. Careful records such as this can provide a solid basis for either a mutually agreed-upon extension or for justifying to a court the reasonableness of a municipality tak- ing more than 90 or 150 days to act. zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 5 Finally, some courts have specifcally allowed the “written decision” by a munici- pality explaining the reasons for denying a zoning request to occur after it acts on a zoning request by denying it. in the appro- priate circumstance, this may allow a mu- nicipality to comply with the shot clocks by issuing a denial within the appropriate time period and then issuing the separate written decision shortly thereafter. even though, as of mid-2011, the shot clock orders are currently in effect, there is serious doubt as to their validity. in part this is due to language at the start of the Act preventing any provision of the Federal Communications Act of 1934 from being used to “limit or affect” a municipality’s zoning authority other than as set forth in the Act. The Act also indicates that there should be individualized time periods for each application, and the committee report accompanying the Act states that in terms of timing it is not intended to give “preferential treatment” to cell tower zoning applications compared to other zoning matters. Finally, the committee report emphasizes that the time for action should be the “usual time period under the circumstances.” A court appeal of the shot clock orders on these (and other) grounds is currently pending and is likely to be decided in late 2011. Municipalities should periodically check as to the outcome of this appeal, City of Arlington v. FCC, no. 10-60039 (5th Cir.). substantial evidence The Act requires that there be “substantial evidence” supporting a municipality’s cell tower zoning decisions. The cases are all in agreement on this; specifcally, the courts have formulated the standard that there must be “more than a scintilla but less than a preponderance” of evidence in the written record supporting a municipality’s decision. The courts have emphasized that this stan- dard means they must uphold a municipal- ity’s decision if the facts meet the preceding low standard even if the court would have reached a different conclusion were it free to consider the matter afresh. in other words, the courts have stated that they cannot substitute their judgment for that of the municipality and try the zon- ing case anew. However, this deference only applies to factual support for substantive matters such as the impact of a cell tower on property values, the environment, or fragile environmental areas. it does not apply to claims for violations related to the radio fre- quency emissions or “prohibition of service” provisions of the Act. The federal court covering mid-Atlantic Coast states has emphasized that the views of residents or laymen should be consid- ered and may be given some weight by a municipality. it also emphasized that the “predictable barrage” of expert testimony from a cell phone provider does not neces- sarily trump or mandate approval of a cell tower zoning request over the objections of residents. other courts have also allowed citizen testimony to be used as evidence to support a denial of a cell tower zoning request. However, the issue of how much weight to give to the testimony of ordinary citizens tends to be case-specifc and can vary greatly depending on factors such as effects from “cell tower radiation” will not be allowed (because federal law prohibits the municipality from considering them). Second, if a speaker attempts to raise such issues, he or she should promptly be stopped on the same grounds. Third, if at- tempts persist, it may be desirable to point out that allowing testimony against the tower based on rF health effects actually increases the likelihood that the cell tower will be approved. This is because the cases are clear in holding that if the court be- lieves the real reason for denial of a zoning application was on rF-emissions grounds, it will usually order that the zoning applica- tion be granted. At a minimum, allowing such testimony gives the cell tower ap- plicant clear grounds to appeal a denial to federal court. numerous cases under the Telecommunications Act hold that the allowable grounds for local zoning decisions on cellular towers include aesthetics, impact on property values, proximity to a historic district, safety, environmental impacts, and the impact of a commercial operation on a residential neighborhood. the number of statements and how detailed and persuasive they are in terms of their facts and reasoning. radio Frequency emissions preemption The Act (47 U.S.C. § 332(c)(7)(B)(iv)) pre- vents municipalities from denying or con- ditioning cell tower zoning based upon the “environmental effects of radio frequency emissions” (often pejoratively termed “ra- diation”) from cell towers, to the extent they comply with FCC emission rules (47 C.F.r. § 1.1307 et seq.). This provision is part of the more general federal preemption of states and municipalities from regulating matters relating to radio frequency (rF) emissions. What municipalities may do is enforce the FCC’s emission rules, including reviewing a tower’s planned compliance with the rules. Municipalities can face emotional requests that a cellular zoning applica- tion be denied due to rF-related health concerns. The best legal advice in these circumstances is three-fold: First, state at the start of a zoning hearing that com- ments or claims about the adverse health suBstantive Zoning rules Because the Act does not affect traditional local substantive zoning principles, it is gen- erally a local decision to choose between having fewer, taller towers with more colo- cations or more, shorter towers with less colocation. Similarly, numerous cases under the Act hold that the allowable grounds for local zoning decisions on cellular tow- ers include aesthetics, impact on property values, proximity to or view from a historic district or structure, safety (if the tower fell, property or persons could be hurt, especially on adjacent properties), environmental impacts (e.g., fragile areas, wetlands), and the impact of a commercial operation on a residential neighborhood. The courts have rejected tower company complaints that local zoning requirements can increase the cost of a tower, for example, by requiring that it be camoufaged, or reject- ing a single tower to be placed at the top of the scenic ridge in favor of shorter towers on either side that have a less prominent visual impact. Aesthetic objections tied to scenic vistas, proximity to historic districts, or views zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 6 from national parks are particularly likely to be upheld by the courts. The Act prohibits “unreasonable dis- crimination” in cell tower zoning. The courts have interpreted this to mean that differ- ences in the treatment of cell towers are allowed as long as there is a valid, articu- lated basis for the difference. For example, just because a cell tower has been allowed in one residential area does not mean that they must be allowed other residential areas if there are legitimate reasons for the differ- ence (e.g., visibility, height, impact on the neighborhood or property values, etc.). caMouFlaging Well-camoufaged cell towers are nearly invisible. Cellular companies can object due to their increased cost, but camoufaged towers are a very effective way to allow a cell tower to be placed where it is needed with little or no impact on aesthetics, historical sites and views, or property values. in urban settings, cell phone anten- nas are routinely concealed in sculptures, signs, billboards, church steeples, water tanks, crosses, and parapets of buildings. Meanwhile, in rural and suburban areas, towers are effectively concealed as trees and are nearly indistinguishable from the real thing (apart from being taller than nearby trees). in the southwest, cell towers are effectively camoufaged as large cactuses (e.g., saguaro cactuses). Many pictures of camoufaged cell towers are available at http://CellularPCS.com/gallery. From a legal standpoint, there have been virtually no cases under the Act chal- lenging camoufaging requirements in local zoning decisions. However, municipalities are well advised to be highly specifc in any camoufaging requirements they impose and to require compliance with photo simu- lations, as there are examples of unsuccess- ful camoufaging. gaps in service and alternate sites The Act bars municipalities from taking zon- ing actions that “prohibit or have the effect of” prohibiting personal wireless services. As a practical matter this provision usually refers to claims by providers of gaps in cov- erage and that there are no feasible alter- nate sites for the tower proposed to fll the gap. Several points should be noted. First, small gaps in coverage are expressly allowed by the FCC, and the courts have noted this. it is only “signifcant” gaps that typically trigger a “prohibition in service” requirement. Second, there are differences between the federal appellate courts on how they apply the “prohibition of service” provi- sion. Municipalities should consult their attorneys to make sure they are following the Act as interpreted by the federal courts in their area. Third, and perhaps most important, gap analysis deals with radio frequency propagation and computer models that try to predict both whether there is a gap and the height and location of the cell tower that will fll the gap. These maps are comparable to a weather map for the day after tomorrow—predictions based upon a range of factors—and for that reason are rarely completely accurate. The computer programs used to generate the map take the topography and buildings in the area and then apply a range of “typical” factors and assumptions selected by the wire- less applicant to generate a map showing how rF signals will likely propagate in the area in question. The resulting map costs relatively little to create, is sensitive to its inputs, and can be skewed in favor of the provider’s zoning request. Municipalities should require provid- ers to set forth all evidence supporting a gap/prohibition of service claim so that the municipality can consider it. This will pre- vent providers from withholding signifcant evidence until a court challenge, or, if they do, will allow the municipality to seek a re- mand so it can consider the new evidence. requiring the applicant to make actual rF measurements in the feld is the only way to accurately determine the actual size and contours of a gap and the shortest tower at a specifc location that will fll it. Typically, a small antenna is suspended from a crane at a given location and height; technicians then measure the signal strength in a variety of directions and distances. They repeat the pro- cess with the antenna at different heights to determine the shortest tower height that will (Left) Although taller than surrounding trees, towers camoufaged as evergreens can be a logical aesthetic compromise in rural new england. (Below) This 100-foot cross at epiphany Lutheran Church in Lake Worth, Florida, houses a cell tower. After the new camoufaged tower was completed, the church removed the smaller cross in the foreground. Wikimedia Commons/SayCheeeeeese Wikimedia Commons/it1224 vol. 28, no. 8 Zoning practice is a monthly publication of the american planning association. subscriptions are available for $90 (u.s.) and $115 (foreign). W. paul Farmer, faicp, chief executive offcer; William r. klein, aicp, director of research Zoning practice (issn 1548–0135) is produced at apa. Jim schwab, aicp, and david Morley, aicp, editors; Julie von Bergen, assistant editor; lisa Barton, design and production. Missing and damaged print issues: contact customer service, american planning association, 205 n. Michigan ave., suite 1200, chicago, il 60601 (312-431-9100 or customerservice@planning.org) within 90 days of the publication date. include the name of the publication, year, volume and issue number or month, and your name, mailing address, and membership number if applicable. copyright ©2011 by american planning association, 205 n. Michigan ave., suite 1200, chicago, il 60601–5927. the american planning association also has offces at 1030 15th st., nW, suite 750 West, Washington, dc 20005–1503; www.planning.org. all rights reserved. no part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the american planning association. printed on recycled paper, including 50-70% recycled fber and 10% postconsumer waste. “Truly Twisted Cell Tower” is a multi- carrier cell tower constructed in Albuquerque, new Mexico, by architect Dekker/Perich/Sabatini. Photograph © 2010 Kramer.Firm, inc. Used with permission; design concept by Lisa Barton. zoningpractice 8.11 AmericAN PlANNiNg AssociAtioN | page 7 fll the gap. often this test is combined with a “balloon test,” where a balloon approximat- ing the cubic footage of the antennas is sus- pended at different heights to determine the visual impact of the proposed tower. related technical analyses are needed when the claim is that existing antennas are overloaded and a tower must be added to increase the capacity of the system in the area. in these cases the courts typically re- quire a showing by the provider (or rebuttal by the municipality) to the effect that there are “no feasible alternate sites” for the cell tower in question. This analysis usually in- volves both technical and economic consid- erations. From an engineering perspective there rarely is only one site for an antenna that would fll a gap. However, while a given site may be technically feasible, the provider may reject it because the cost to build or rent is too high. Municipalities are not bound to approve the “least cost” site if a reasonable alternate site (or sites) with greater cost or rent is preferable. Also, some courts give consideration to minimizing the impact or intrusion by the cell tower. The bottom line is that in “signifcant gap” or “prohibition of service” cases a mu- nicipality usually needs technical assistance to knowledgeably review, comment on, and (where appropriate) challenge a provider on the issues of whether and to what extent there is a gap, its contours, the location and minimum height of a tower necessary to fll a gap, and the feasibility of alternate sites. in a number of states, municipalities can obtain this technical assistance at the provider’s expense through local ordinances requiring a deposit for experts and studies at the time of application. A qualifed expert can evaluate a cellular zoning application and provide an analysis and recommendations (e.g., camoufaging suggestions) that will assist in deciding the zoning application. However, because there are cases where municipalities have lost in the courts due to assistance from unquali- fed experts, municipalities should obtain the names of cases where proposed experts have testifed and review any opinions where a court has commented on their credentials. This will help ensure that the experts’ work for the municipality will be persuasive with the provider and stand up in court. distriButed antenna systeMs Distributed Antenna Systems (DAS) are of- ten an attractive alternative to cell towers. essentially, they involve a series of micro- cells, each with a small antenna and box mounted on a utility pole. The boxes often are smaller than other boxes or transformers on utility poles and sometimes can be put underground. DAS is an attractive alternative for providing cell phone service, especially in residential areas, although multiple DAS antennas are required to serve the same geographic area typically served by one cell tower. Another advantage of DAS systems is that one set of DAS antennas can serve all cell phone companies licensed to serve a community. The downside is that DAS systems are sometimes more expensive to install than towers because of the need for multiple DAS sites to cover the same area as a tower, with the sites interconnected by fber optic cables. The cellular industry has resisted some municipal attempts to encourage or force the use of DAS. in one case, the industry mounted a major challenge and was successful in overturning (on federal preemption grounds) a local ordinance that expressed a preference for DAS. The court found that a municipality could not impose such a blanket legislative requirement; how- ever, later decisions from the same court upheld a community’s right to consider DAS on a case-by-case basis. notice oF inquiry in April 2011 the FCC issued a notice of inquiry on “key challenges and best prac- tices in expanding the reach and reducing the cost of broadband deployment by im- proving government policies for access to rights of way and wireless facilities siting” (emphasis added). Such notices are nor- mally followed by rulemakings addressing issues revealed by the notice. Among many other things, the notice asks about challenges or problems that the wireless industry claims has occurred with local zoning and with leasing land from municipalities for cell towers. in the notice, the FCC basically claims that it has the legal authority to further restrict local zoning of cell towers. Likely areas for rulemaking fowing from this notice are (a) preventing municipalities from allowing cell towers in residential areas only by variance; (b) greatly restricting or eliminating zoning approvals for colocations; and (c) putting limits on what must be included in a cell tower zoning application and the fees that may be charged. conclusion in 1996 Congress for the frst time created federal requirements for cell tower zoning. As interpreted by the courts, the Act creates some challenges for municipal compliance, in part because some of the procedural pro- visions are quite different from local zoning practice and in part because federal courts often order zoning applications approved when the Act is violated. By careful attention to the matters described in this article, and by paying at- tention to the specifc interpretations of the Act by the courts in their area, municipalities can ensure that cell tower zoning decisions comply with federal, state, and local law as well as the public interest. Attachment No. 10 Public Comments Attachment No. 10 1 CITY OF CALABASAS --------------------------------------------------------------------X In The Matter of the City of Calabasas Proposed Calabasas Municipal Code Section 17.12.050 entitled “Antennas/Wireless Communication Facilities” --------------------------------------------------------------------X ANALYSIS AND SUGGESTED REVISIONS TO PROPOSED CITY ORDINANCE 17.12.050 Respectfully Submitted to the City of Calabasas, California, Andrew J. Campanelli CAMPANELLI & ASSOCIATES, P.C. 623 Stewart Avenue, Suite 203 Garden City, NY 11530 (516) 746-1600 Dated: Garden City, NY November 30, 2011 2 Table of Contents Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 IIntroduction to The Zoning of Wireless Facilities . . . . . . . . . . . . . . . . . . . . . . . . 4 IIPotential Adverse Impacts of Wireless Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 8 (a)RF Radiation Exposure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 (b)Aesthetics and/or Adverse Community Impacts. . . . . . . . . . . . . . . . . . . . .11 (c)Physical Safety Concerns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 (a)Noise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 IIIThe Telecommunications Act of 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 IVDeceptions Commonly Employed Against Local Zoning Authorities . . . . . . . . . .17 VAT & T’s Comments Regarding PUC §7901. . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 VIRisks of Litigation Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 VIIProposed Revisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Section A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Section B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Section C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Section D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Section I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Additional Suggested Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 3 Preamble Before providing my suggested changes to the proposed new ordinance which is to constitute Calabasas Municipal Code Section .050 in Chapter 17.12 of Title 17, I have submitted an overview and analysis of the issues to be considered in enacting the proposed ordinance. Such analysis and overview contain information which, in my experience, is not commonly known by most local government officials. As such, I have provided same to enable the City Counsel to make fully informed decisions when considering the provisions suggested for incorporation into the proposed new ordinance. Section I of my analysis begins with an introduction to the most logical approach to enacting a local ordinance to regulate wireless facilities and the issues presented by such an approach. Section II identifies the potential adverse impacts which often result from the installation and operation of wireless facilities in the absence of regulations to protect against such impacts. Section III describes the constraints which the Telecommunications Act of 1996 (TCA) imposes upon the authority of the City to regulate wireless facilities, as those constraints have been interpreted by the United States Court of Appeals for the Ninth Circuit. Section IV identifies a number of deceptive tactics commonly employed to deceive local authorities into permitting the installation or operation of wireless facilities which do not satisfy the requirements of local law, or which are likely to expose members of the public to RF radiation levels which exceed the maximum levels deemed safe by the FCC. Section V addresses an important comment which has been raised by AT & T against the provisions of the proposed ordinance. Section VI contains a risk of litigation disclosure. Section VII thereafter sets forth my suggested revisions to the City’s proposed ordinance. 1 This view was embraced by the United States Court of Appeals for the Second Circuit in Omnipoint Communications Inc. v. The City of White Plains, 430 F3d 529 (2005). In Omnipoint, the United States Court of Appeals for the Second Circuit ruled that: (a) where a wireless company seeks a use variance to construct any new wireless facility in New York, New York State Law governing public utility structures applied, and (b) under New York State law governing public utilities, a local zoning board cannot grant a use variance to build a wireless facility, unless the respective applicant establishes that: (1) its proposed new construction is a public necessity, in that it is required to enable the applicant to render safe and adequate wireless service, and (2) there are compelling reasons, economic or otherwise, which make it more feasible to build a new facility other than to use alternative sources as may be provided by other facilities. 4 IIntroduction to The Zoning of Wireless Facilities The development and use of wireless communications technologies have virtually exploded within the past decade. A vast majority of Americans have come to enjoy and rely upon the use of wireless devices including, but not limited to, cellular telephones. The popularity of such devices, and the benefits being derived therefrom, is well established. The use of wireless devices necessarily requires creation of an infrastructure capable of transmitting and receiving signals to and from such devices. Such an infrastructure commonly consists of components which include cell towers, antennas, transmitters, switching stations, transformers, back-up power supplies, etc. The ever-increasing number of companies simultaneously pursuing the installation of such facilities has presented local authorities with very real challenges to protect their citizenry from a variety of adverse impacts from such installations. Given the benefits derived from the use of wireless technologies, and the ever-developing law affecting the regulation of wireless infrastructure by local governments, a logical initial approach to regulating wireless facilities is to view them as public utility structures.1 2 In California, for example, public utilities are regulated by the California Public Utilities Commission (the CPUC). In New York, they are regulated by the functionally equivalent New York Public Service Commission (the PSC). 5 The Public Utility View Traditionally, the regulation of public utilities by local government has been rather simplistic, for two basic reasons, namely (1) state oversight and (2) singular infrastructure. First, the operations of traditional public utilities are generally regulated, and subject to oversight, by state public utility commissions.2 Unlike traditional public utilities, however, most wireless facilities are entirely unregulated by any authoritative body except to the extent that a local government has elected to enact a ordinance such as that being contemplated by the City of Calabasas. Inasmuch as the Federal Communications Commission (FCC) does not require registration for any wireless facilities which stand less than 200 feet in height, the FCC does not know that they exist, or where they are, much less play any material role in regulating them. The FCC does not test wireless facilities to ensure that the RF radiation levels to which they may be exposing the general public remain within the levels deemed safe by the FCC. In fact, the FCC does not inspect them in any way, shape or form, whatsoever. Moreover, the FCC does not monitor when antennas are modified or added to an existing facility, or if the power output of a wireless facility is increased after its initial installation. As such, in the City of Calabasas, the City is the citizens’ first and only line of defense against any potential adverse impacts which might be caused by the irresponsible placement or operation of a wireless facility within the confines of the City. Singular vs Duplicative Infrastructure Another key distinction between wireless facilities and traditional public utilities is that wireless facilities do not share two key characteristics of public utilities which have remained relatively constant through the years. One such characteristic is that, as a general rule, public utilities have largely been provided through a singular main infrastructure. 3 A prime example is the California-based company, NextG Networks Inc., which has installed thousands of wireless facilities across the U.S. See NextGNetworks.net. See also St CharlesTower,com, the website of St. Charles Tower Inc, which, similar to Next G, has installed wireless facilities in multiple states. 4 Both the general public and most local government officials are generally unaware of the enormous revenues generated by the ownership of a wireless facility. Within the matter of Beacon Wireless v. Town of Brookhaven, (New York State Supreme Court, Suffolk County) my firm represents a plaintiff, which is suing the Town of Brookhaven to recover commissions allegedly due to it for wireless site acquisition services. More specifically, Beacon Wireless agreed to identify three locations on Town property which would be suitable for the installation of cell towers within the Town. In exchange for such services, the Town agreed to pay Beacon a percentage of the lease payments which wireless companies would pay the Town to lease space on those three towers. The total commissions claimed to be due and owing to Beacon for having located those three towers is $4.6 million dollars. 6 Such singular infrastructures have generally included a single set of utility poles carrying power transmission lines and telephone lines, singular piping and/or conduit systems for the distribution of utilities such as natural gas or water, and in a similar vein, a singular piping system for the collection of sewage. In stark contrast to traditional utilities, the wireless industry is comprised of innumerous wireless-related companies pursuing the installation of duplicative infrastructures. Multiple companies pursue parallel saturations of wireless coverage of identical geographic areas, and each seeks to install their own duplicative sets of towers, antennas, transmitters and related equipment necessary to achieve that end. Another characteristic of traditional public utility companies is that they generally do not seek to construct new facilities unless and until such new facilities are actually necessary to provide their utility services to the public, since it would make no financial sense to do otherwise. By stark contrast, many of the companies which pursue applications to install new wireless facilities either: (a) do not actually provide any personal wireless services,3 or, (b) do not suffer from a gap in any wireless services they provide, at the locations where they seek to install many such facilities. The fact is that the acquisition and installation of wireless facility sites is such a highly lucrative business, that it has spawned an entire industry of companies whose sole business consists of installing wireless facilities and leasing space on them to other companies.4 7 As for the companies which do offer wireless services, many applications are being filed for a host of reasons wholly unrelated to any actual gap in their personal wireless service. Wireless companies can, and arguably do, pursue applications to install towers and wireless facilities for such purposes as: (a) preparing for potential future capacity needs, (b) being the first among their competitors to secure a tower, and to force their competitors, thereafter, to lease space on their tower under applicable co-location requirements and/or (c) to secure wireless site installations “as assets” which increases the value of their respective company’s stock. In at least half of the cases within which I have been retained to address an application to install a wireless facility, the applicant did not suffer from a significant gap in its personal wireless coverage at the location where they were seeking to install a new facility. In fact, in a number of such cases, residents conducted actual call tests employing the respective applicant’s personal wireless service. Those residents found that they were invariably able to send and receive calls and texts, without difficulty, in the precise area where the applicant claimed it suffered from a “significant gap” in it’s personal wireless service. As such, in any ordinance regulating the installation of wireless facilities within the City, such ordinance should restrict the construction of new facilities to those circumstances within which the construction of a new facility is actually necessary to provides wireless services, as opposed to being little more than an asset or future investment of a company seeking to profit from same. This will ensure that, to the greatest extent feasible, wireless facility installations within the City will be treated just like any other public utilities, notwithstanding the fact that there will be a significantly greater level of redundancy in wireless facility infrastructures. Such redundancy will be unavoidable, because under the constraints of the TCA, the City must permit redundant wireless structures, where they are actually necessary for a wireless provider to remedy a significant gap in its personal wireless service, even if a multitude of other providers have already saturated the area with facilities and wireless services. Once again, the goal should not be to prevent the installation of wireless facilities when they are actually needed, especially given the clearly-established benefits they provide to residents of the City. The goal should be to minimize the extent to which such facilities are constructed unnecessarily, or in a manner which adversely impacts the City, its communities and/or its residents, to any extent greater than is necessary. 5 The FCC has defined Radiofrequency (RF) Radiation, for its purposes, as electromagnetic energy, that can be further defined as waves of electric and magnetic energy moving together through space, where such electromagnetic waves have frequencies that range from 3 kilohertz (kHz) to 300 gigahertz (Ghz) FCC OET Bulletin 65, Supplement B, (Edition 97-10) at page 8. 6 The FCC has set maximum limits for human exposure to RF radiation based upon recommended exposure criteria issued by the NCRP and ANSI/IEEE, each of which identified “the same threshold level at which harmful biological effects may occur.” See FCC OET Bulletin 56, August 1999. Based upon same, the FCC adopted Maximum Permissible Exposure (MPE) limits, which are expressed in terms of electric field strength, magnetic field strength and power density Id. Under federal law, all wireless facilities must comply with such RF exposure limits See 47 C.F.R. §1.1310. 8 IIPotential Adverse Impacts of Wireless Facilities While it is beyond argument that wireless facilities bestow a benefit upon the City’s citizenry, it is equally beyond argument that, absent adequate regulation to prevent same, the irresponsible placement and/or operation of such facilities can have very real adverse impacts upon citizens, neighborhoods and the City as a whole. (a)RF Radiation Exposure Among the health and safety concerns created by the installation of a wireless facility, is the potential adverse health impacts which may be caused by the overexposure of citizens to RF radiation emanating from a wireless facility.5 Overexposure can occur where a facility exposes the public to levels of RF radiation which exceed the maximum safe exposure limits adopted by the FCC.6 I address this potential impact first for three reasons. First, it is the RF radiation/health issue which often draws the most attention, and greatest hostility, at public hearings upon applications for the installation of wireless facilities. Second, it is the single issue which, once raised before a local zoning board, most quickly draws threats of litigation by applicants. 7 47 U.S.C. §332(c)(7)(B)(iv). 8 The City should be aware of the practice of powering-up (as addressed in Section IV herein below) wherein the power output of an initially FCC compliant facility is increased after the facility has been approved by the City, and installation is completed. 9 See, e.g. FCC ruling 09-99, wherein the FCC created a “shot-clock” against local governments when processing applications for the citing of wireless facilities. 9 Third, because it is in this area that unscrupulous applicants most often employ misleading tactics in order to deceive local governments into believing that their proposed installation will be FCC compliant, when, in fact, it will not. Each and every time this issue is raised, wireless companies protest that the Telecommunications Act of 1996 prohibits local governments from considering the potential adverse health impacts which their wireless facilities may have upon members of the general public due to exposure to RF radiation. As the wireless companies are acutely aware, however, that statement is only half true. What the TCA actually provides, is that local governments cannot consider such potential adverse health impacts, to the extent that the applicant’s proposed new facility will be FCC compliant.7 As such, the City of Calabasas has the power to require an applicant to submit information to ensure that any proposed wireless installation will be FCC compliant, so that a wireless facility within the City does not expose the public to RF radiation levels which exceed the Maximum Permissible Exposure (MPE) levels deemed safe by the FCC. Such RF radiation levels must remain within the FCC’s MPE limits, not only at the time of a wireless facility’s initial installation, but for the entire period during which a respective wireless facility is thereafter being operated within the City.8 Remarkably, while the FCC has issued rulings to assist wireless companies in the process of siting wireless facilities,9 it has steadfastly refused to assist local governments by issuing any ruling providing for, much less mandating, a procedure for local governments to follow when they seek to ensure that proposed wireless installations will be FCC compliant. 10 See FCC Report and Order FCC 00-408, November 13, 2000, “The sole question in this area posed by the RF Procedures Notice was the extent of a State or local government’s authority . . . to require a demonstration of compliance with our RF exposure guidelines . . . we do not believe any binding rule governing demonstrations of compliance is necessary.” 11 See “A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures and Practical Guidelines” FCC publication June 2, 2000 “This document is not intended to provide legal guidance regarding the scope of state or local government authority under Section 332(c)(7) or any other provision of law.” 12 See e.g. City of Berkeley, CA, Municipal Code 23C.17.090 [“No (wireless facility) shall at any time produce power densities that exceed the FCC’s limits for electric and magnetic field strength and power density for transmitters. In order to ensure continuing compliance with all applicable emission standards, all (wireless facilities) shall submit reports (of FCC compliance) as required by this section”]; See also City of Burbank, CA, Municipal Code Ordinance 3817, effective 10/14/11. 10 The FCC’s failure to assist local governments, has continued for more than a decade,10 leaving local governments “in the dark” as to: (a) how to determine whether a proposed installation will be FCC compliant,11 and (b) to what extent they are permitted to require proof of compliance from an applicant. Despite same, it has been clearly established that local governments may require applicants to submit information to establish that their intended installation will be FCC compliant. As recently held by the United States Court of Appeals for the Second Circuit: “Because the FCC has not mandated any procedure by which localities must determine compliance with its requirements, there can be no serious dispute but that the Town may require applicants to submit information pertaining to RF emissions in order to determine whether the FCC standards are met i.e., it may require more than a statement of compliance.” New York SMSA Limited Partnership d/b/a Verizon Wireless et al, 603 F.Supp.2d 715, 730 (2009) Across the Country, local governments have enacted ordinances which require applicants to submit proof that their facility will be FCC compliant.12 13 By way of example, the Town of Hempstead, New York experienced a massive surge in wireless facility installations, during which period the Town failed to enact any ordinance to regulate the installation of such facilities. As a result, the Town is now plagued with perhaps as many as 1,000 installations, with many arguably being “the most ugly antenna installations” one might imagine. Free of any restraints, wireless companies simply installed that which was cheapest and quickest to install, with complete and utter indifference to “aesthetics.” 14 See Omnipoint Communications Inc. v. City of White Plains, 430 F3d 529 (2nd Circuit 2005). 11 (b)Aesthetics and/or Adverse Community Impacts In the absence of any local ordinance, the unregulated installation of wireless facilities will generally inflict “a blight of ugly antennas” and irresponsibly placed cell towers upon a community or City.13 This phenomenon is occurring across the Country. Installations can adversely affect the aesthetics and/or character of a neighborhood, community or City: (a) where an installation, because of its size, appearance or location is inconsistent with the character of the properties and/or community surrounding the installation, and as such, its installation has a direct adverse impact on the character of the neighborhood, community or area within which it has been installed, or (b) where the installation is aesthetically offensive, ranging from the mildly offensive to an “aesthetic blight” upon a community. As should be expected, the magnitude of such potential impacts, are greatest in residential communities, such as those within the City of Calabasas, where homeowners go to great lengths, and expend vast sums of money, to make their surroundings aesthetically pleasing. The fact is, Americans have become so focused upon the aesthetic appearance of their homes and communities, that decorative landscaping supply and installation is a multibillion dollar industry in the United States. Under the circumstances, federal Courts have upheld the power of local governments to deny wireless installation applications where the proposed installation will cause an adverse impact upon the aesthetics or character of the local area, and have further ruled that such denials do not violate the TCA.14 15 Lack of quality control was glaringly apparent in a case in Oswego New York where a new cell tower collapsed at a firehouse, crushing a Police Chief’s vehicle, where the bolts securing the tower to its base had apparently not been tightened. To see vivid photographs of same, go to: http://www.firehouse.com/node/62632. 16 Video footage of a cell tower which burst into flames in New Jersey in January of this year can be viewed at: http://www.youtube.com/watch?v=y__NKVWrazg, or by searching for “cell phone tower fire” on Youtube. 17 Video footage of a flaming cell tower collapsing to the ground in Massachusetts can be viewed at: http://www.youtube.com/watch?v=0cT5cXuyiYY&NR=1, or by searching for “cell tower burns to the ground” on Youtube. An article regarding a cell tower erupting into flames in Michigan can be found at: http://blog.mlive.com/annarbornews/2007/07/updated_cell_phone_tower_fire.html 12 (c)Physical Safety Concerns Similar to Smart Cars, wireless facilities are designed and built to be economically sensible, rather than to be as safe as possible. The economies of their design, together with the blinding pace at which cell antennas and/or cell towers are being installed, have rendered quality control over their manufacture, installation and maintenance virtually impracticable. Not surprisingly, wireless facilities can and do fail, often in dramatic fashion.15 Across the country, there are documented cases of cell tower collapses, wireless facility fires, and other failures, due to a wide range of structural or maintenance failures. It is not possible to ascertain, with any level of accuracy, how often such failures occur, because (not surprisingly) wireless companies do not publicize such failures. With a simple visit to the popular website YouTube, however, one can readily view videos of a cell tower erupting into flames,16 or burning as it collapsed to the ground.17 18 Images of a monopole which collapsed in California, apparently due to a base plate failure, can be viewed at: http://residentsact.blogspot.com/2007/11/just-how-safe-are-monopole-cell-towers.html 19 To view a video of a failure where a section of a cell tower “sheared off” and speared itself into the ground in a residential backyard, go to: http://www.youtube.com/watch?v=DdOPlTTstWQ&feature=related 13 Common structural elements of cell towers which are known to have caused or contributed to failure and/or collapse include baseplates,18 flanges, defective sections,19 joints and guy wires, among others. Taking these structural failures into consideration, local zoning authorities have enacted “fall-zone” requirements, which mandate that wireless facilities are maintained at a sufficient distance from other structures and the general public, to ensure their safety in the event of a structural failure or fire at a wireless facility. The rule of thumb which seems to be taking hold across the United States is that most local ordinances provide for setbacks of 150% to 200% of the height of a proposed tower. These setbacks are deemed suitable to protect against the dangers structural failures of a collapse, falling pieces of a tower, fire, or even falling chunks of ice which might fall from a tower. I am constrained to note that, at a recent meeting of the City counsel, a resident presented the counsel with a large color photographic image depicting a wireless facility within the City, which had been allowed to fall into a state of disrepair. More specifically, the image showed that a large cover plate had “fallen off” of the facility’s enclosure, thereby exposing electrical wiring to both the elements and the general public. Most troubling within such presentation, was a representation by the resident, that the owner of the facility had been notified of the defect, but they had not replaced the cover plate despite the passage of several months after it had been notified of the condition. As is self-evident, this reflects that there exists a need in Calabasas to ensure that its proposed ordinance contains a mechanism to make certain that wireless facilities are properly maintained by their owners. 20 Thomas Hoy and Elke Hoy v. The Incorporated Village of Bayville, Sprint Spectrum Realty Company, L.P., Nextel of New York, Omnipoint Facilities Network 2, LLC, New York SMSA Limited Partnership, U.S.D.C. E.D.N.Y. 10 CV 0094 (JFB)(AKT). 14 (d)Noise Another potential adverse impact from a wireless installation is noise. In a recent federal case I had filed in the in the United States District Court, E.D.N.Y.,20 my clients described how a wireless facility located roughly 100 feet from their backyard was generating a humming noise, similar to the type of noise one would hear from a power plant or transformer station. Such noise was continuously emanating into their backyard, and deprived them of any opportunity to enjoy a quiet, peaceful night out on their back deck. 21 As interpreted by the United States Court of Appeals for the Ninth Circuit, this provision allows some discrimination among providers of equivalent services. Any discrimination need only be reasonable. MetroPCS Inc. v. The City and County of San Francisco, 400 F3d 715, 727 (2005)[“Most courts have recognized that discrimination based on traditional bases of zoning regulation, such as preserving the character of the neighborhood and avoiding aesthetic blight are reasonable and thus permissible . . . In fact, the sole district court case in the Ninth Circuit on this issue holds that a mere increase in the number of wireless antennas in a given area over time can justify differential treatment of providers”]. 22 “Effect of prohibiting” - As reflected within its text, §332(c)(7)(B)(i)(II) prohibits local governments from enforcing ordinances which actually either prohibits or “have the effect of prohibiting” the provision of wireless services. In 2008, Sprint sued the County of San Diego to challenge the City’s ordinance regulating the installation of wireless facilities, claiming that a parallel law, 47 USC §253(a), prohibited any ordinance which “may” have the effect of prohibiting wireless services. In considering Sprint’s argument, the United States Court of Appeals for the Ninth Circuit reversed its own previous decisions, and ruled that a plaintiff suing a municipality under section §253(a) must show that the ordinance being challenged imposes an actual or effective prohibition, rather than the mere possibility of prohibition. Sprint Telephony PCS LP v. County of San Diego, 543 F3d 571 (2008). 15 IIIThe Telecommunications Act of 1996 Across the United States, local governments have faced a tsunami of applications to install wireless facilities, which was ushered in by 47 U.S.C.A. §332, commonly known as the federal Telecommunications Act of 1996 (the “TCA”). At the heart of the tsunami, is 47 USCA §332(c)(7)(b) which imposes five (5) restrictions upon the authority of local governments to regulate the installation of wireless facilities, and/or to deny applications seeking approvals for such installations. The five (5) constraints which the TCA imposes upon local zoning authority consist of the following: (a)Local governments cannot unreasonably discriminate among providers of functionally equivalent services §332(c)(7)(B)(i)(I),21 (b)Local governments cannot prohibit or have the effect of prohibiting the provision of personal wireless services §332(c)(7)(B)(i)(II),22 23 On November 18, 1999, the FCC adopted ruling FCC 09-99 which imposed the following time frames within which local governments must act upon siting requests for wireless towers or antenna sites: (1) 90 days for the review of collocation applications, and (2) 150 days for the review of siting applications other than collocations. 24 Written Record - In MetroPCS v. City and County of San Francisco, 400 F.3d 715(2005) the United States Court of Appeals for the Ninth Circuit adopted the Todd standard for what satisfies the requirement of a written record. Under this standard, to satisfy §332(c)(7)(b)(iii) any local government which denies an application for the installation of a wireless facility must: (a) issue a written denial which is separate from the written record of the proceeding, and (b) the denial must contain a sufficient explanation of the reasons for the denial to allow a reviewing Court to evaluate the evidence in the record supporting those reasons. “Substantial Evidence” - In MetroPCS, the Ninth Circuit Court of Appeals also embraced Oyster Bay standard for what constitutes “substantial evidence.” Under this standard, substantial evidence means less than a preponderance but more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Review under this standard is essentially deferential, such that Courts may neither engage in their own fact finding nor supplant a local zoning board’s reasonable determinations. 16 (c)Local governments must act upon any application to place, construct or modify a wireless facility within “a reasonable period of time” §332(B)(7)(B)(ii),23 (d)Any decision to deny an application to place, construct or modify a wireless facility shall be in writing and be supported by substantial evidence contained in a written record §332(c)(7)(B)(iii),24 [italics added] and (e)Local governments cannot regulate the placement, construction or modification of a wireless facility on the basis of environmental effects of radiofrequency emissions, to the extent that such facilities comply with the FCC’s regulations concerning such emissions §332(c)(7)(B)(iv) [italics added]. Ironically, §332(c)(7) is entitled “Preservation of local zoning authority” and subparagraph (B) which contains the above-referenced restrictions is preceded by subparagraph (A) which provides: “Except as provided in this paragraph, nothing in this chapter shall limit or affect the ability of a State or local government or instrumentality thereof over decisions regarding the placement, construction and modification of personal wireless services facilities.” Alternatively stated, subject to the five limitations listed above, the City of Calabasas remains vested with full authority to regulate the installation and operation of wireless facilities, just as it would regulate any other structures within the City. 17 IVDeceptions Commonly Employed Against Local Zoning Authorities Unfortunately, representatives of applicants seeking to install wireless facilities often successfully engage in a variety of deceits to mislead local zoning authorities into granting applications which should be denied, or to enable them to install wireless facilities which are not FCC compliant. Such deceits commonly include deliberately providing false or misleading information to local zoning authorities, concealing information, or otherwise engaging in affirmative efforts to mislead both local zoning authorities, and residents who might seek to oppose the installation of a proposed new facility. Far more often than not, such deceits are successful, and the local authorities who have been successfully deceived rarely, if ever, learn of the deceit. In enacting any ordinance to regulate the installation of wireless facilities within its confines, the City should consider such deceptive practices and ensure that its proposed ordinance affords protection against City representatives deceived by applicants. To familiarize City’s representatives with some of the issues which applicants often address through deceit, and the most common types of deceit employed, I offer the following: (A)False Representations of FCC Compliance The Telecommunications Act of 1996 provides that “to the extent that such facilities comply with the FCC’s regulations concerning such RF emissions,” local governments are prohibited from considering the potential adverse health impacts of the RF radiation to which the intended wireless installation will expose the public. Alternatively stated, if an applicant establishes that their proposed tower or antenna will not expose members of the general public to radiation levels which exceed the maximum levels deemed safe by the FCC, then the local government cannot consider any potential adverse health impacts from the tower or antenna’s radiation when deciding a zoning application to install them. To establish that their intended installation will be FCC compliant, applicants generally submit “FCC compliance” reports which are prepared by RF engineers, who certify that, as of the time of installation, the antennas will be FCC compliant. 18 With alarming regularity, however, the representatives of wireless companies who prepare or cause the preparation of such compliance reports mislead local governments to falsely believe that their proposed installation will be FCC compliant, when, in fact, it will not be FCC compliant. The most common practices in this regard are: (i) proffers of FCC compliance based upon the wrong FCC standards, (ii) projecting RF exposure levels based upon false distance limitations (“The Distance Game”) and (iii) powering up. (i) Proffers of Compliance Under The Wrong FCC Standard To enact any meaningful ordinance to ensure that a wireless facility will be FCC compliant, it is critical to understand that there are two very different sets of RF radiation limits adopted by the FCC, as codified under the Code of Federal Regulations. These include: (a) the “general population” limits, which are the maximum RF radiation levels to which wireless facilities can expose the general public, and (b) the “occupational” limits, those being the RF radiation levels to which a facility can expose workers who maintain those facilities. As adopted by the FCC, the occupational limits allow for RF radiation exposure levels as much as 500% to 600% higher than the maximum levels deemed safe for the general public. Far more often than conceivable, applicants “trick” local zoning boards into granting them permission to install a wireless facility which exposes the public to RF radiation levels well in excess of the levels deemed safe by the FCC. To do so, they simply represent to a local zoning board that the level of RF radiation exposure “will be within the limits set by the FCC,” while the local board is entirely unaware of the fact that the applicant is referring to the wrong limits. Simply stated, in representing that their maximum exposure levels will be within FCC limits, they refer to the occupational limits, rather than the general population limits, so that when the facility is installed, they can be exposing members of the general public to radiation levels as much as 500% to 600% higher that the maximum levels deemed safe by the FCC. 25 47 CFR §2.1 dictates that the less stringent, occupational limits apply as follows: “Occupational/controlled exposure. For FCC purposes, applies to human exposure to RF fields when persons are exposed as a consequence of their employment and in which those persons who are exposed have been made fully aware of the potential for exposure and can exercise control over their exposure. Occupational/controlled exposure limits also apply where exposure is of a transient nature as a result of incidental passage through a location where exposure levels may be above general population/uncontrolled limits, as long as the exposed person has been made fully aware of the potential for exposure and can exercise control over his or her exposure by leaving the area by some other appropriate means.” By contrast, 47 CFR§ 2.1 dictates that the more stringent general population limits apply as follows: “General population/uncontrolled exposure. For FCC purposes, applies to human exposure to RF fields when the general public is exposed or in which persons who are exposed as a consequence of their employment may not be made fully aware of the potential for exposure or cannot exercise control over their exposure. Therefore, members of the general public always fall under this category when exposure is not employment-related.” 26 In a recent case before a Zoning Board of Appeals in the Town of Hempstead, New York, an applicant’s RF engineer testified that a proposed facility would be FCC compliant based upon a claim that the closest distance a member of the general public would get to the proposed antennas would be eighty (80) feet. Upon cross examination by me, the expert conceded that: (a) proposed antennas being mounted upon a flat roof directly above an apartment would be only a few feet from the inhabitants of the apartment, and (b) the RF radiation levels would exceed the general population RF radiation exposure limits by 600% to 700%. 19 As they are well aware, the Code of Federal Regulations (CFR) makes it crystal clear when each respective set of limits is to be applied.25 The occupational limits can only be applied in situations where the facility prevents members of the general public from reaching an area in close proximity to the facility. In an effort to misapply the occupational standard, representatives of wireless companies can, and do, falsely represent how close people will be able to get to their facility.26 27 In support of an application currently pending before the Village of Southampton, New York, an applicant’s representative submitted a RF Compliance report, pertaining to an application to install an antenna array inside the steeple of the oldest Presbyterian church in the United States. In preparing such a report, the applicant’s representative premised his calculations upon “the assumption” that the closest anyone will get to the antennas will be the distance between “the antennas way up in the steeple” and someone standing down on the sidewalk near the church. As is common knowledge in the Village, the steeple houses a clock which is required to be manually reset, and it has been reset every eight (8) days, continuously from 1871 through the present. As such, as was likely known to the applicant’s representatives, the closest that anyone will get to the antennas is less than four feet. 20 (ii)The Distance Game Within their FCC compliance reports, RF engineers perform mathematical calculations to determine the levels of RF radiation to which a proposed wireless facility will expose members of the general public or others. At the heart of such calculations is the minimum distance factor. As is commonly known, the closer one gets to a RF emitting antenna, the greater the level of RF radiation to which they are exposed. Significantly, as the distance between a person and a transmitting antenna closes, the level of RF radiation exposure increases exponentially, rather than proportionally. As such, in determining such exposure level for preparation of an FCC compliance report, the engineer must start their analysis by first determining the closest distance anyone will be able to get to an antenna which is proposed for installation. To prepare calculations which falsely reflect that a proposed antenna will expose the public to radiation levels considerably lower than what the actual levels will be, all an engineer has to do, is start their calculation with a false minimum distance factor. This tactic is simple, effective, and commonly employed.27 28 Within the context of a federal lawsuit my firm commenced in the United States District Court, E.D.N.Y. against five (5) of the largest wireless companies in the U.S., it was disclosed that a number of antennas at the respective site were entirely removed and replaced with larger ones, which the wireless company described as “routine maintenance.” 29 Wireless Companies can easily claim a need to “power-up” due to changing technologies. See e.g. Sprint Spectrum L.P. v. Mills, 283 F3d 404 (2nd Cir. 2002) [In Sprint, a New York School District entered a lease to allow Sprint to install an antenna atop a high school, but placed RF emission limits within the lease. After Sprint had agreed to the terms of the lease, including the RF emission limits, Sprint advised the School District that “changes in available equipment required it to modify its original installation plan,” and that one of the changes would be to increase the RF emissions from the installation. After the School District refused to allow the more powerful RF emissions, Sprint sued the School District, claiming that the Telecommunications Act of 1996 (TCA) preempted the School District from setting maximum RF levels in the lease. The United States Court of Appeals for the Second Circuit ruled against Sprint, holding that the TCA did not pre-empt enforcement of the RF emission limitations which the School District had set in the lease]. 21 (iii)Powering Up Within their FCC compliance reports, wireless companies cause RF engineers to certify that, as of the time of its installation, a proposed wireless facility will be FCC compliant. As is known to the wireless industry, however, the installation of wireless facilities and their antennas is not stagnant. For a host of reasons, including, but not limited to evolving technology, antennas are very often replaced.28 As is also known to the wireless industry, once the tower or antennas are installed, there is absolutely nothing to stop the company which owns them from “powering up” the site by either: (a) increasing the power output of the antennas, or (b) replacing them with different, more powerful antennas.29 Where this occurs, there is always the possibility that members of the public could be exposed to radiation levels which exceed the maximum levels deemed safe by the FCC. In the absence of any local regulation providing for same, there is absolutely no way the City of Calabasas would know if the power output of the facility or its antennas has been increased. Nor would members of the general public know if they were being exposed to excessive RF radiation levels, because RF radiation cannot be “felt.” 22 (B)False Representations of Need As ruled by the United States Court of Appeals for the Second Circuit in Omnipoint, supra, under New York State law, local zoning boards cannot grant wireless companies use variances to install wireless facilities, unless they can establish, among other things, that the proposed new installation is necessary to remedy a significant gap in their wireless service. In more than half of the matters within which I have been retained to address such an application, the respective applicant was claiming, and/or attempting to mislead a local government to falsely believe, that a non-existent gap existed. The most common tactics currently being employed in this regard are the bait and switch, and massaging the numbers. (i) The Bait & Switch The bait & switch is simple. A carrier who does not suffer from a significant gap in service, will posit that it suffers from a gap in “in-building coverage,” meaning that it lacks sufficient signal strength inside buildings, to provide personal wireless services. Rather than simply testing those signal strengths, however, the applicant performs a drive test, within which they record signal strengths encountered during a drive through the geographic area at issue. Then, they “calculate” what the signal strengths “would be” inside buildings in the area, by multiplying the outside signal strengths by a completely arbitrary factor, claiming that such factor accounts for the reduction in signal strength which will occur as a result of the signal passing through the structural materials of buildings. As logic would dictate, if they actually wanted to know the signal strength inside a building, they could simply enter the building and record it. They choose, instead, to conduct an outside drive-test, because it enables them to arbitrarily choose a “multiplication factor” to proffer that the “calculated” in-building signal strengths are such that the applicant is suffering from a significant gap in its coverage. 30 In the Matter of the Application of T-MOBILE NORTHEAST LLC, T-Mobile filed an application to “legalize” a partially completed monopole which had been installed upon a poured concrete foundation in the Town of Huntington, New York. The installation had been undertaken without the filing of any applications seeking any zoning approvals from the Town, allegedly in violation of setback requirements and the necessity for a Special Permit. During a public hearing upon a belated application to legalize the installation, I questioned a neighbor who testified that the concrete foundation for the tower “was poured at midnight in December” - the neighbor’s assumption being that the choice of time was deliberately calculated to ensure that none of the neighbors would be around to object to the installation. 23 (ii.) Massaging the Numbers Massaging the numbers is even easier. In this tactic, they don’t even bother to do a drive test. Instead, they buy “canned” signal strength data, and then they “introduce variables.” This means they take the canned data, and multiply it by some arbitrary percentage factors, to arrive at calculated signal strengths which reflect that they suffer from a significant gap in coverage. In my personal experience, in more than 60% of the cases wherein an applicant claimed that it suffered from a significant gap in coverage, no such gap existed. (C)Stealth Installations An additional “tactic” with which any municipality should be concerned, is the practice of wireless companies undertaking “stealth installations.” Stealth installations include: (a)where a wireless company simply proceeds to install a wireless facility without providing a local government with any notice whatsoever, nor applying for any type of zoning approvals at all,30 and/or 31 In the Matter of DeMarco, my clients, a New York family arrived home to find workers installing something in the ground on their front lawn. When approached by the family, the workers allegedly explained to them that: (a) there was a public right-of-way across their front lawn, and (b) that the ground-wire they were installing was for a new streetlight which was going to be installed at the street in front of their home. Less than 48 hours later, the family came home to find a 40 foot cell tower on their front lawn. The cell tower was owned by the California-based company NextG Networks. See http://abclocal.go.com/wabc/story?section=news/local/long_island&id=7937987 http://newyork.cbslocal.com/2011/02/03/cell-tower-on-front-lawn-surprises-long-island-couple/ http://northshoresun.timesreview.com/2011/02/5977/town-asking-wireless-company-to-take-dow n-tower-built-on-mount-sinai-familys-property/ 24 (b)where a wireless company installs a wireless facility, literally under cover of darkness, at night, on a holiday, or at any other time when they anticipate no one will see the installation, or be around to raise objection to it.31 Having personally encountered at least a dozen cases involving stealth installations, I cannot overstate the importance of enacting regulations to address post-installation redress for the City in cases of stealth installations of wireless facilities. 25 VAT & T’s Comments Regarding PUC §7901 I have reviewed the comments which have been submitted by AT & T, and the revisions they propose be made to the draft ordinance. Below, I address AT & T’s comment regarding “Applicable Law.” AT & T’s comments regarding specific sections of the proposed ordinance are addressed in Section VII herein below. AT & T Comment - Applicable Law Under the heading “Applicable Law,” AT & T briefly addresses the constraints of the TCA, and then states: “In our view, the City possesses only a limited right to curtail the rights of telephone corporations under Section 7901" of the California Public Utilities Code. As an attorney retained to provide peer review services to the City, I am constrained to advise the City that: (a) it is beyond argument that the City possesses the power to regulate the installation of wireless facilities in public rights of way, (b)Section 7901 imposes constraints upon that power, and (c)wireless companies will claim, and have tried to claim, that §7901 leaves local governments with less regulatory power than that which they still possess. In Sprint PCS Asserts LLC v. City of Palos Verdes Estates, a wireless company argued that §7901 prevents local governments from regulating the installation of wireless facilities based upon aesthetics. In rejecting Sprint’s argument, the United States Court of Appeals for the Ninth Circuit ruled that: (a)The California Constitution authorizes local governments to make and enforce, within their limits, all local, police, sanitary and other ordinances not in conflict with general laws, 26 (b)The question before the Court was whether or not California Public Utility Code divested the City of its authority to deny applications to install wireless facilities based upon aesthetics, and (c)Neither Public Utilities Code §7901 nor §7901.1 conflicted with “the City’s default power” to deny a wireless facility application for aesthetic reasons. Sprint PCS Asserts LLC v. City of Palos Verdes Estates, 583 F3d 716 (2009). Significantly, before rendering its ruling, in Sprint, the United States Court of Appeals for the Ninth Circuit made a request to the California Supreme Court, asking the Supreme Court to decide whether PUC 7901 and 7901.1 permit local governments to restrict the placement of telephone equipment in public rights-of-way based upon aesthetic grounds. The California Supreme Court denied the federal Court of Appeal’s request that the Supreme Court decide such issue, and concomitantly, the federal Court of Appeals rendered its own ruling in the absence of same. A reading of the Court’s decision in Sprint suggests that, in the Federal Court’s view, local governments in California retain “default” power to regulate wireless facilities in public rights of way. Not being admitted to practice in the State of California, however, I cannot provide direct guidance to the City in interpreting how broad the City’s power remains under California law. ACCORDINGLY, I STRONGLY RECOMMEND THAT THE CITY OBTAIN A SECOND OPINION FROM AN ATTORNEY ADMITTED WITHIN THE STATE OF CALIFORNIA REGARDING THE EXTENT OF THE CITY’S AUTHORITY TO REGULATE THE INSTALLATION OF WIRELESS FACILITIES WITHIN A PUBLIC RIGHT OF WAY. 32 As is undoubtedly known to both the City Counsel and City Attorney, local governments across California and the rest of the Country are being sued by wireless companies to challenge denials of individual zoning applications, or local ordinances which regulate the installation of wireless facilities. See e.g. NextG Networks of California Inc. v. City of Newport Beach CA, 2011 WL 717388 (C.D. Cal.), Sprint Telephony PCS LP v. County of San Diego, 543 F.3d 571 (9th Cir. 2008), MetroPCS v. The City and County of San Francisco, 400 F3d 715 (9th Cir 2004). 27 VIRisks of Litigation Disclosure In 2005, after MetroPCS sued the City and County of San Francisco to challenge their ordinance regulating wireless facilities, the United States Court of Appeals for the Ninth Circuit opined: “This case marks yet another episode in the ongoing struggle between federal regulatory power and local administrative prerogatives - the kind of political collision that our federal system seems to invite with inescapable regularity.” MetroPCS v. The City and County of San Francisco, 400 F3d 715, 718 (2005) Just as local governments can be expected to enact ordinances to protect the interests of their citizenry from the unregulated installation and operation of wireless facilities, wireless companies can be expected to file lawsuits to challenge denials of applications, or ordinances themselves,32 especially given the enormous revenue generated by the ownership and/or operation of such facilities. The simple realities are that: (a)there are huge financial incentives to secure wireless installations regardless of the cost, (b) as a practical matter, the wireless industry has virtually unlimited resources to pursue litigation against local governments, (c) the wireless industry has an incentive to file lawsuits to “make examples” of some local governments, so that local governments with lesser resources will “fall in line” under fear of similar litigation, (d)the attorneys representing wireless companies may not hesitate to recommend litigation knowing that they will be well-paid if the wireless company hires them to pursue same. 33 Omnipoint Communications Inc. v. Richard Comi, 233 F.Supp.2d 388 (2002)[Ruled attorney could not be held liable under 42 U.S.C. §1983 for drafting a wireless ordinance for a local government]. 34 See e.g Sprint Telephony PCS LP v. County of San Diego, 543 F3d.571 (9th Circuit 2008). 28 One company, Omnipoint Communications Inc., has even gone so far as to sue an attorney for having drafted a zoning ordinance for a local government.33 To the extent that wireless companies have succeeded in lawsuits claiming that a local government has violated the TCA, the relief generally awarded by the respective federal Court has been affirmative injunctive relief directing the respective government to issue the desired permit or approval necessary to enable the company to install its desired facility. I am currently unaware of any case within which a wireless company has been awarded damages where it succeeded in establishing that a local government had violated the TCA Enterprising attorneys representing wireless companies have tried to recover damages for TCA violations by asserting claims under 42 U.S.C. §1983, but both the United States Court of Appeals for the Ninth Circuit and the United States Supreme Court have ruled that TCA violations do not give rise to §1983 claims.34 The fact is that wireless facilities enable both citizens and visitors within Calabasas to receive personal wireless services, and thereby provide a valuable benefit. As such, the most logical approach to regulate the installation of wireless facilities is to recognize that they are as necessary as power plants or public water distribution systems. The City, however, needs to regulate them in such a way as to permit the installation of no more structures than are actually necessary to provide the services at issue and to ensure that the placement, construction and maintenance of same limits any adverse impacts on the City and its citizens. Consistent with such approach, my drafting efforts herein are not intended to prohibit or effectively prohibit the installation of wireless facilities. They are to assist the City in drafting a regulation which will give the City the broadest authority possible, in seeking to further the legitimate planning goals described herein. 29 Towards that end, I have submitted herewith a number of suggested amendments to the City’s draft Ordinance. Any local government must recognize, however, that there will always exist the possibility that a wireless company may commence a lawsuit against it, anytime the local government either denies a respective application, or enacts an ordinance to restrict or limit such installations, and may seek to recover attorneys damages and/or costs in any such action. As such, in proffering this submission to the City of Calabasas, I do not provide any guarantee nor representation that a wireless carrier or company will not commence an action based upon any denial of an application for the installation of a wireless facility processed under the new ordinance, or that they will not file an action to challenge the ordinance itself. 30 VISuggested Revisions to Proposed Section .050, Chapter 17.12 of Title 17 I recommend that proposed Section .050 begin with a definition section, to precede what has been proposed as Section A. The definition section should include the following: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Definitions. For purposes of this Section, the following terms, phrases, words, abbreviations, their derivations and other similar terms shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number. “Accessory Equipment” means any equipment installed, mounted, operated or maintained in close proximity to a Wireless Communication Facility to provide power to the Facility or to receive, transmit or store signals or information received by or sent from a Facility. “Antenna Structure” means an antenna, any structure designed specifically to support an antenna and/or any appurtenances mounted on such structure or antenna. “Applicable Law” means all applicable federal, state and City law, ordinances, codes, rules, regulations and orders, as the same may be amended from time to time. “Applicant” means any person or entity submitting an application to install a Wireless Communication Facility under this Section. “City” means the City of Calabasas. “FCC” means the Federal Communications Commission. “Personal Wireless Service” means commercial mobile services provided under license issued by the FCC. “Stealth Facility” means any Wireless Communication Facility which is disguised to appear an another natural or artificial object that exists in the surrounding environment or which is architecturally integrated into a building or structure. 31 “Wireless Communication Facility” or “Wireless Facility means an Antenna Structure and any Accessory Equipment located within the City limits and which is used in connection with the provision of Personal Wireless Services. Section A The following language is suggested to replace the language which was proposed for Section A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.Purpose and Intent. The purpose of this section is to regulate the installation, operation and maintenance of antennas and wireless communications facilities within the City. It is recognized that the unrestricted installation of redundant wireless infrastructures is contrary to the City’s efforts to stabilize economic and social aspects of neighborhood environments, and to promote and protect safety and aesthetic considerations, family environments and a basic residential character within the City. In enacting this section, it is the intent of the City to: (a) Promote and protect the health, safety, comfort, convenience and general welfare of residents and businesses in accord with Section .020 Chapter 17.01 of this Title, and (b) Protect the benefits derived by the City, its residents and the general public from access to personal wireless services, by providing non-discriminatory access to wireless providers while minimizing, to greatest extent feasible, the redundancy of wireless infrastructures within the City. In enacting this section, it is the intent of the City to effect a balancing of such goals, by permitting the installation and operation of wireless facilities where they are actually needed, while enacting limitations to reduce, to the greatest extent feasible, adverse economic, safety and/or aesthetic impacts on nearby properties and the overall community. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Notes on Section A The proposed language which indicates that it is the City’s intent to encourage “more efficient technology” has been intentionally omitted. Federal Courts have held that the type of technology to be employed in providing wireless services is the exclusive province of the FCC. See e.g. New York SMSA Limited Partnership d/b/a Verizon Wireless v. Town of Clarkstown, 603 F.Supp.2d 715 (2009). 32 Section B As drafted, Section B provides that it applies to existing facilities [B(3)], or facilities for which an application has already been filed [B(1) and B(2)], but it does not indicate that it applies to new applications which have not yet been filed. As such, Section B should include a new subparagraph 1, as follows: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1.All future applications seeking approval for the installation of Wireless Communications Facilities within the City. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The existing subparagraphs 1, 2 and 3, should be respectively renumbered 2, 3 and 4 and I suggest that existing subparagraph B(3) be replaced with the following - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 4.All facilities for which applications have been previously approved, but are now or hereafter: (a) expanded, or (b) modified by the installation of additional antennas, larger antennas or more powerful antennas, shall comply with this section. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This permits owners of existing facilities to maintain them, even if they do not comply with the new setback requirements, but requires such owners to seek approval to expand such facilities. The modification language of B(3) addresses both AT & T’s concern regarding changing technology, as well as the City’s need to know when additional, larger and/or more powerful antennas are being added to an existing installation. The owners of facilities can change their equipment, as technology changes, with no application requirements. But the installation of additional, larger, or more powerful antennas triggers the requirements of the ordinance, thereby placing the City on notice of the new installation, and the ability to oversee that the owner certifies that the new, more powerful, installation will be FCC compliant. 35 Although the Omnipoint decision was rendered by the United States Court of Appeals for the Second Circuit, the case has been cited by the United States Court of Appeals for the Ninth Circuit, which raised no objection to the Second Circuit’s ruling. 33 Section C Comment - The broadest authority which the City can wield in regulating the installation of wireless facilities, is the imposition of a requirement that an applicant establish that a proposed installation is: (a) necessary to close a significant gap in service, and (b) that the proposed installation is the least intrusive means by which to close that gap. Based upon the Omnipoint case supra, which remains good law,35 this exercise of state and/or local zoning power does not run afoul of the TCA. As such, in employing its zoning powers, the City can impose the “significant gap” and “least intrusive” requirements to further the goals set forth within section A, including but not limited to, protecting the aesthetics and character of residential neighborhoods, ridgelines, or even open spaces, to the same extent that the City has endeavored to protect them in the past. On the other hand, the City cannot prohibit the provision of wireless coverage where an installation is necessary to close a significant gap, and a proposed installation is the least intrusive means of closing that gap. It is my understanding that at least one wireless provider has already saturated the City with wireless coverage, without having placed facilities in residential zoning districts, preserved open spaces, or on ridgelines. As such, to the extent that the City seeks to continue any pre-existing prohibitions against the approval of any structures in open spaces, ridgelines etc., it would seem that the City can continue to do so, without violating the TCA. 34 Section C(1) Sections C(1)(i) and C(1)(iii) each refers to approvals to be obtained from a “commission.” Each of these two separate subsections should explicitly identify the commission to which they refer, whether it’s the Communications and Technology Commission (commonly referred to as the CTC) (See Chapter 2.38 of Title 2) or the Planning Commission (See Chapter 2.28 of Title 2). To the extent that the City intends to empower the CTC to grant either or both of the approvals described within C(1)(i) and C(1)(iii), the City should amend section .040 of Chapter 238 of Title 2 to empower the CTC to entertain requests for such approvals, and, where stated requirements are met, to grant such approvals. To the extent that the intent of the City is to have the Planning Commission entertain such requests and, where appropriate, grant such approvals, the scope of Subsection G, Section .040 of Chapter 2.28, already empowers the Planning Commission to hear and grant applications for conditional use permits, and as such, makes a similar amendment to that Commission’s power unnecessary. To the extent that subsequent provisions in the proposed ordinance also refer to a Commission, each must specify to which Commission it refers. Section C(2) Section C(2)(c) As is self evident, the intent of C(2)(c) is designed to give the City oversight as to the overall development of a wireless infrastructure within the City. Knowing what new wireless facilities are to be pursued in the near future is a valuable planning tool for the City, especially with regard to seeking to minimize the unnecessary redundancy of such facilities. As set forth within its language, this section essentially provides that (a) an applicant seeking to install a wireless facility must provide a “master plan” to place the City on notice of all additional applications it may seek to file within the next three years, and (b) bars the applicant from filing, (and the City from accepting), applications for any new facilities which are not described within the master plan. I am constrained to agree with the objection raised by AT & T that the three-year projection period is too long. In the world of wireless facilities and equipment, the development of technologies is moving so quickly that it is not feasible for a wireless company to predict what type of equipment it will need to employ three years from now. I agree with AT & T that the disclosure period in C(2)(c) should be reduced from three years to two years. 36 Maximum Permissible Exposure limits - See FCC OET Bulletin 56, August 1999. 35 As for barring the applications which are not identified within each applicant’s master plan, I think the ordinance is reasonable on its face, but it would not be enforceable in the event that a provider can establish that it truly needs to install a new facility to close a “significant gap” in its personal wireless services, and that the proposed installation is the “least intrusive means” of closing such gap. As such, I think the bar language should remain, but the following language should be added at the end of C(2)(c): - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - “unless the applicant establishes before the Commission that a new installation is necessary to close a significant gap in the applicant’s personal wireless service, and the proposed new installation is the least intrusive means of closing that significant gap” - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Section C(2)(e) Section C(2)(e) is virtually meaningless to the extent that its intent is to protect the City and its residents from the installation or operation of a wireless facility which will expose the public to RF Radiation levels in excess of the maximum levels deemed safe by the FCC. As described herein above, the FCC has refused to address the means by which local government may require an applicant to establish that its proposed installation will be “FCC compliant,” meaning that it will not expose the general public to RF radiation levels which exceed the MPE’s36 set by the FCC. In the absence of guidance from the FCC, local governments across the Country have been requesting, (and applicants seeking to install wireless communication facilities have been submitting), what are commonly known as “FCC Compliance Reports.” In these reports, applicants disclose the projected RF radiation levels to which the proposed facility will expose the general public and/or the persons who will work on a proposed facility. To understand whether or not a wireless facility will be FCC compliant, it is critical to understand that there are two very different sets of RF radiation limits adopted by the FCC, as codified under the Code of Federal Regulations. 37 47 CFR §2.1 dictates that the less stringent, occupational limit apply as follows: “Occupational/controlled exposure. For FCC purposes, applies to human exposure to RF fields when persons are exposed as a consequence of their employment and in which those persons who are exposed have been made fully aware of the potential for exposure and can exercise control over their exposure. Occupational/controlled exposure limits also apply where exposure is of a transient nature as a result of incidental passage through a location where exposure levels may be above general population/uncontrolled limits, as long as the exposed person has been made fully aware of the potential for exposure and can exercise control over his or her exposure by leaving the area by some other appropriate means.” 38 47 CFR§ 2.1 dictates that the more stringent general population limit applies as follows: “General population/uncontrolled exposure. For FCC purposes, applies to human exposure to RF fields when the general public is exposed or in which persons who are exposed as a consequence of their employment may not be made fully aware of the potential for exposure or cannot exercise control over their exposure. Therefore, members of the general public always fall under this category when exposure is not employment-related.” 36 The first set of limits are the less stringent “Occupational” or controlled exposure limits.”37 The second, and far more restrictive set of limits, are the “General Population” or uncontrolled exposure limits”38 In the current void of guidance from the FCC, I suggest that the City require applicants to file standard FCC compliance reports which will disclose the projected RF emission levels to which the intended facility will expose the general public. To address the concerns discussed in Section IV herein above, the report should not merely state that the proposed facility will be FCC compliant, but it should: (a) identify which set of RF limits the statement of compliance is based upon, (i.e. the occupational limits or the general population limits), (b) clearly set forth the minimum distance between antennas and members of the general public which the applicant used to determine such exposure limits, and (c) state whether the calculations being performed are based upon operation of the intended antennas at full strength and/or power of operation. Among other things, this will enable the City to determine if it needs to petition the FCC for intervention. 37 Accordingly, I suggest the following language to replace C(2)(e) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - e.An FCC Compliance Report, which shall provide the projected RF exposure levels of the intended installation, and which shall include an affirmation, under penalties of perjury, that the proposed installation will be FCC compliant, in that it will not cause members of the general public to be exposed to RF levels which exceed the MPE levels deemed safe by the FCC. Such a report shall disclose whether its RF exposure analysis is based upon the occupational/controlled exposure limits or the general population/uncontrolled exposure limits, as defined under 47 CFR §2.1. Such a report shall also disclose the proposed minimum distance based upon which the applicant’s projected exposure levels were calculated, that being the assumed closest distance that a member of the general public will be able to get to the proposed antenna(s), and shall further disclose whether or not the exposure calculations are based upon the assumption that the proposed antennas and facility will be operating at full power. If the applicant seeks to apply the occupational/controlled exposure limits, the applicant’s FCC compliance report shall describe how the facility will be restricted against access by the general public, and shall describe the warning signage to be installed, as required by the FCC for the occupational limits to be applied, and as described within FCC OET Bulletin 65, Supplement B (Edition 97-10) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - There is always the possibility that a wireless provider may assert a legal claim that this type of local requirement is preempted by federal law, in that the regulation of RF emissions is the exclusive province of the FCC. Thus far, however, I have seen the largest wireless companies routinely provide FCC compliance reports to local zoning boards without any objection to providing same. Moreover, compliance with the suggested language is less burdensome than what is currently required by the other Cities in California, such as Berkeley, Burbank and Davis. Since: (a) the FCC does not monitor or test whether an installation is exposing members of the general public to RF radiation levels which exceed the maximum levels deemed safe by the FCC, and (b) the FCC has failed to provide guidance to local governments as to how they can ensure that such installations are not exposing the general public to radiation levels in excess of those deemed safe by the FCC, there is simply no other way for the City to afford its inhabitants protection against the possibility of excessive RF radiation exposure, unless it requires the above referenced disclosures from applicants, and/or it actually tests facilities for the actual radiation levels emanating from same. 39 New York SMSA Limited Partnership d/b/a Verizon Wireless, New Cingular Wireless PCS, LLC, Sprint Spectrum L.P. and T-Mobile Northeast LLC, v. Town of Hempstead, United States District Court, Eastern District of New York, Case No. CV 10-4997, filed on October 29, 2010. 38 Section C(3) Section C(3)(a)(iii) As drafted, Section C(3)(a)(iii) imposes a 150% setback requirement for free standing cell towers. This is not only consistent with protecting the safety, comfort, convenience and general welfare of residents and businesses in accord with Section .020 Chapter 17.01, it is also consistent with local ordinances from around the Country. While AT & T’s comments include a suggestion that this section be deleted in its entirety, I suggest it remain intact, precisely as it is drafted. Section C(3)(a)(iv) Having personally visited Calabasas and viewed both City Hall and residences within the City, I can appreciate the efforts undertaken by the City and its residents to maintain an aesthetically pleasing environment. While an effort to restrict the proximity of wireless facilities to homes, schools and parks to minimize aesthetic and visual impacts is consistent with the intent of Section .020 Chapter 17.01, Section C(3)(a)(iv), as drafted, may be problematic. Within its comments, AT & T asserts that a 1500 foot setback would “preclude future service to most areas of the City.” If this were true, then the ordinance would run afoul of the constraints of the TCA as described herein above. As the City may or not be aware, the Town of Hempstead in New York enacted a somewhat similar 1500-foot-setback provision. That ordinance is now the subject of a federal lawsuit which was filed by New Cingular Wireless, Sprint and T-Mobile, seeking to have the local ordinance declared to be in violation of the TCA.39 That lawsuit remains pending. Bearing in mind that: (a) the purpose of the proposed setback is to minimize aesthetic and visual impacts, (b) the City cannot prohibit the provision of wireless services within its borders, and (c) there are existing facilities which may not be in compliance with the proposed setback requirement, I suggest that Section C(3)(a)(iv) be revised to provide as follows: 39 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ivAll new wireless communications facilities shall be set back at least 1000 feet from schools, dwelling units and parks, as measured from the closest point of the wireless facility (including equipment) to the applicable property line, unless an applicant establishes before the Commission that a new installation which shall be situated less than 1000 feet from a dwelling unit, school or park is necessary to close a significant gap in the applicant’s personal wireless service, and the proposed new installation is the least intrusive means of closing that significant gap. To the extent that the owner of an existing wireless communication facility which is located less than 1000 from a dwelling unit, school or park seeks to increase the physical size of such facility, or of its antennas, such owner shall be required to establish before the Commission that such increase in the size of its facility is necessary to close a significant gap in the applicant’s personal wireless service, and the proposed new installation is the least intrusive means of closing that significant gap. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Once again, the City must both choose, and specify within the ordinance, which “Commission” is to make the relevant determination. I am suggesting that the City consider reducing the 1500 foot restriction to 1000 feet, if the City agrees that such distance is adequate to protect against adverse impacts upon aesthetics and character of the City’s local neighborhoods. 40 Section C(3)(c) As drafted, Section C(3)(c) purports to prohibit the installation of wireless facilities on a ridgeline, in a residential district, in areas set-aside for open space, or parks or playgrounds, while providing that a facility may be installed if it is necessary to close a significant gap in personal wireless service and the proposed installation is the least intrusive means of closing that gap. This section needs to be revised if it is to accomplish whatever limits the City seeks to impose under this section. First, the areas subject to the intended prohibition must be specified. By way of example, if the provision intends to prohibit the installation of a wireless facility in “areas set aside for open space,” the provision must specify what is intended to fall within the definition of open space. The ordinance must specify whether it is intended to include: (a) that which is zoned OS (Open Space) District under 17.16.010, (b) that which is zoned OS-DR Open Space-Development Restricted under 17.16.010, (c) some other areas which are intended to be included within the areas deemed open space under the ordinance, or (d) a combination of (a) through (c). In a similar vein, the provision must identify the specific zoning districts which fall within the intended scope of the prohibition’s coverage for residential zones, parks or playgrounds. In addition, Land Use Table 2-2 contained within 17.11.010 must be amended to include a new entry for “Wireless Communications Facilities” under its left-hand column of listed “Land Uses,” and corresponding entries for each respective zoning district must be entered in each of the respective columns to the right. Once the City determines the extent of the areas to be included within such prohibition, then the City must decide: (a) to what extent it would choose to include, within the ordinance, an exception from the prohibition against the installation of wireless facilities, and (b) to what extent it would legally be required to do so. By way of example, if the City were to determine that it chooses to prohibit the installation of wireless facilities in OS Districts, without exception, then it must consider whether such a prohibition would prevent a wireless provider from providing complete wireless coverage within the City. If it would not prohibit a carrier from doing so, then it would be within the City’s power to impose an outright prohibition against the installation of wireless facilities within such districts. 41 If, on the other hand, it would likely prohibit a wireless provider from providing coverage, then the ordinance would need to include an exception for those circumstances where the installation of a wireless facility in the otherwise prohibited area, is truly necessary for a provider to close a significant gap in its coverage, and that the proposed installation in the open space in the least intrusive means of doing so. Given the fact that, to date, wireless providers have been able to provide full coverage in the City without invading the City’s open space, it is likely that such an exception would not be required. The same rule would apply to any other defined zones/areas which the City chooses to include within section C(3)(c). Sections C(3)(b) and C(3)(d) Within Sections C(3)(b) and C(3)(d) the word “camouflage” should be replaced with “Stealth,” consistent with the definition of Stealth Facility provided in the definition section. This has become standard language within the industry. Section C(4) Section C(4)(f) Section C(4)(f) restricts the noise level emanating from a wireless communications facility to fifty (50) decibels. Noise restrictions are perfectly permissible zoning constraints, and I am unaware of any soundproofing limitations which would render it impracticable for operators of such facilities to reduce the sound emanating from their facilities. Since such facilities operate continuously, day and night, the City may impose whatever sound constraints it deems reasonably necessary to reduce their noise level to that which would not be found to be objectionable to those in close proximity to such facilities. 40 “FCC compliant” meaning that such facilities are not exposing the public to RF radiation levels in excess of the maximum levels deemed safe by the FCC. 42 Section C(6)(Monitoring requirements) As described herein above, the FCC refuses to perform any actual monitoring to ensure that wireless facilities are FCC compliant, and it’s refusal has been exacerbated by its concomitant failure to provide local governments with either guidelines or mandates to enable them to ensure that wireless facilities within their jurisdiction are FCC compliant.40 As such, local governments are the first and only line of defense available to protect the public against overexposure of RF radiation due to non-FCC-compliant facilities.41 Theoretically, if a local government becomes aware that a facility is not FCC compliant, it can file a complaint with the FCC. In reality, however, it is impossible for a local government to become aware that a facility is not FCC compliant, unless a facility is actually tested, because excessive RF radiation levels cannot be “felt.” As such, even if a non-FCC-compliant facility was exposing the general public to radiation levels 500% higher than the maximum levels deemed safe by the FCC, both the general public and the City would be completely unaware of such overexposure. Accordingly, in the absence of protective action by the FCC, local governments have been enacting provisions to ensure that wireless facilities within their jurisdiction are FCC compliant, both at the time of initial installation, and during the entire period of operation thereafter. Each time they do, wireless companies threaten litigation, consistent with AT & T’s comment to the City of Calabasas that, if Section C(6) is included in the ordinance as drafted, it “will be subject to legal challenge.” Faced with such failures on the part of the FCC, and threats from wireless companies, local governments are left in the undesirable position of either: (a) leaving their residents naked of any protection against overexposure to RF radiation generated by wireless facilities which are not FCC compliant, or (b) enacting provisions to ensure or require FCC compliance, under risk of litigation regarding same. As reflected within the Municipal Codes of the Cities of Berkeley, Burbank and Davis, among others, local governments have chosen to pursue the path of affording their citizens reasonable protections against non-FCC-compliant wireless facilities, despite the threats and risk of litigation by wireless companies. 42 City of Berkeley Municipal Code and Zoning Ordinance Section 23C.17.090 43 City of Burbank Municipal Code Section 10-1-1118(E) 44 Id. at Section 10-1-1118(D)(3)(I) 45 City of Davis Municipal Code Section 40.29.220. 43 The City of Berkeley, California, requires applicants to certify that wireless facilities will be compliant at the time of installation, and further requires periodic testing for compliance, with the actual cost of such testing borne by the owner of each respective facility.42 The City of Burbank, California requires certification of FCC compliance,43 and explicitly prohibits wireless facilities from generating RF emissions and/or electromagnetic radiation in excess of FCC standards.44 The City of Davis, California goes even further, and provides: (a) that the City can request monitoring information at any time, and if such information is not provided within 10 days, a facility’s conditional use permit may be revoked, and (b) that if, at any time, a facility is found to be non-FCC-compliant, the facility must cease operation immediately.45 Similar provisions have been, and are being, incorporated into local ordinances across the Country. Under the circumstances, I fully expect that, at some point in time, a wireless company will commence a federal action to challenge a local government’s ordinance, claiming the inclusion of such provisions constitutes “regulating” within a field over which the FCC has the exclusive authority to regulate, and that as such, such local ordinance is pre-empted by federal law. Since the TCA only explicitly precludes local governments from considering environmental impacts of wireless facilities, to the extent that they are FCC compliant, there remains an open issue as to how far a local government can go in ensuring FCC compliance, before a federal Court would determine that such efforts intrude into a federally pre-empted area. If the City of Calabasas chooses to follow the path taken by the other California Cities described above, then Section C(6) is, by comparison, a mild provision to provide a moderate level of assurance of FCC compliance. It is both less restrictive and less burdensome upon applicants, than comparable provisions enacted by other local jurisdictions, but as such, it simultaneously affords less protection than such others. 46 Where a person is deprived of a “property right” without “due process of law,” in violation of the 14th Amendment, such person may pursue an action to recover damages under 42 U.S.C. §1983, and their attorneys fees incurred, under 42 U.S.C. §1988. 44 The City must determine how strongly it wants to ensure FCC compliance, viewed against the certainty that the stronger the protection it affords, the more likely a wireless company will challenge it with a lawsuit. Section C(7)(b) (Abandonment) Once approval has been given to install a facility, and such an installation has been completed, its owner becomes vested with a “property right” with regard to same. To guard the City against possible claims under 42 U.S.C. §1983,46 I suggest that the owner of a facility which is believed to be abandoned be afforded a right to a hearing before one of the Commissions at which to challenge the City’s claim that their respective facility has been abandoned. The procedure for such hearing should be set in accord with applicable State and local laws, and since I am not admitted to practice within the State of California, the language to provide for such procedure should be drafted by an attorney admitted to practice within the State. Section C(10) (unsafe facilities) Similar to my suggestion for Section C(7)(b), before removal is required under Section C(10) the owner should similarly be afforded a hearing at which to challenge the City’s claim that its facility has become unsafe or otherwise incompatible with public health, safety or welfare. 45 Section D As stated herein above, I suggest that the City obtain a second opinion from an attorney admitted to practice within the State of California, as to the extent of the City’s power to regulate the installation of wireless facilities within a public right of way. Sections D(2) and D(6) Given the suggestion that the City has less regulatory power over facilities within a PROW versus those which are not, I do not understand why the ordinance has been drafted to be more restrictive for facilities in a PROW than those which are not. Without understanding the intent behind such provisions, it is impossible for me to suggest any revisions. Section D(3)(c) I suggest that D(3)(c) be amended, consistent with the changes I suggested for the parallel provision section C(2)(c), so that the period is reduced from three years to two years, and the limiting language below be added. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - “unless the applicant establishes before the Commission that a new installation is necessary to close a significant gap in the applicant’s personal wireless service, and the proposed new installation is the least intrusive means of closing that significant gap” - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Section D(3)(e) This section should be changed to mirror my suggested changes for C(2)(e), to require an FCC compliance report - See C(2)(e) herein above Section D(4)(c) Change the word “camouflage” to “Stealth.” Section D(4)(e)(i)(1), (2) and (3) Change the word “camouflage” to “Stealth.” 47 Qui tam statutes have been enacted by the States of California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, Wisconsin, the District of Columbia, and the Cities of New York and Chicago. 46 Section D(4)(j) Consistent with section C(3)(a)(iv), I suggest that the distance be reduced from 1500 feet to 1000 feet. Section I Section I encompasses a qui tam (or whistleblower) provision which, among other things, empowers private citizens to pursue violations of the proposed ordinance through litigation. Not surprisingly, AT & T “urges deletion” of this section, claiming, among other things, that its “not necessary” and “bad policy.” Within the past six years, at least twenty nine (29) states and two (2) cities have enacted qui tam laws empowering private citizens to commence lawsuits to protect the rights and/or coffers of the respective State or City.47 Empowering private citizens to protect government interests has proven to be a highly effective means of protecting government interests, at no cost to the respective government. The most prominent qui tam statute is the federal False Claims Act, which empowers private citizens to file lawsuits to recover monies which have been defrauded from the federal government. More than two billion ($2,000,000,000) dollars is recovered each year under the False Claims Act. I cannot think of a better, or more cost effective, means of guarding against evils such as stealth installations or unapproved expansions of wireless facilities, than to empower all residents within the City to act as private attorneys general to remain vigilant against same. As such, I suggest that Section I be enacted as drafted. 47 Additional Suggested Provisions Specific Guidelines for Establishing Significant Gap As drafted, the ordinance contains a number of provisions which, for certain applications, will impose a burden upon an applicant to establish that a desired facility is necessary to remedy a “significant gap” in its personal wireless coverage. As recognized by the United States Court of Appeals for the Ninth Circuit, the term “significant gap” is intended to mean a gap which is “truly significant” and not merely individual dead spots within a greater service area. See MetroPSC Inc v. City and County of San Francisco, 400 F.3d 715, 734 (9th Circuit 2005), Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F3d. 716 (9th Circuit 2009). The ordinance should therefore: (a) first specify which Commission shall be charged with making a determination as to whether or not an applicant established that it suffers from a significant gap, and then (b) provide guidelines as to how to determine same. Towards that end, among others, I suggest that the ordinance include the following provisions, somewhere within its sections. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Where an applicant seeks to establish that it suffers from a significant gap in its personal wireless coverage, that the applicant’s proposed installation is necessary to close that gap, and that the proposed installation is the least intrusive means to close such gap, the applicant shall be required to provide direct evidence of in-kind call testing, and the results of same. The term “in-kind call testing” means actual call testing to establish the precise type and location of gap the applicant purports to exist. By way of example, if the claimed gap is for in-building coverage, then simple in-building call testing must be performed to establish the existence or absence of such gap. If the applicant is incapable of securing building access to conduct such call testing, then the applicant shall provide a sworn affidavit attesting to its attempts to secure access into buildings to conduct such testing, and the circumstances which prevented the application from conducting such testing. Comparable in-kind call testing shall be performed for claimed gaps for in-vehicle coverage or open area coverage. In rendering a determination as to the existence or absence of a significant gap, the Commission shall accept evidence of call testing from both the applicant and any individuals or entities who may seek to oppose the subject application, and shall not automatically give greater weight to the results submitted by either side, but shall consider the call testing evidence as submitted, taking into account: (i) the number of 48 calls conducted in the call test, (ii) whether the calls included in the test were undertaken on different days, at different times, and under differing conditions, and (iii) whether calls could be successfully initiated, received and maintained in the area where the applicant claims to suffer from a significant gap in its coverage. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Aside from the fact that call testing is the least expensive means of acquiring evidence of the existence or absence of a significant gap, I believe it to be perhaps the best indicator of same. Other factors which the City may wish to have the Commission consider in making a determination as to whether or not there is a “significant” gap include: (a) the number of residents which may be affected by the alleged gap in service, (b) whether a proposed facility is merely needed to improve weak signals or to fill a complete void in coverage, or (c) whether the gap affects either a significant commuter highway, or other well- traveled roads on which travelers lack roaming capabilities. 49 FCC Compliance To ensure that all facilities installed and maintained within the confines of the City are FCC compliant, I suggest that a provision including the following be added to the ordinance. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - All applicants seeking any approval for the installation, expansion or increase in power of a Wireless Communications Facility within the City shall submit, along with any application, an FCC compliance report, consistent with those customarily being provided by applicants in the wireless industry to local zoning boards. Such a compliance report shall include, at a minimum, the following: (a) A certification that the proposed wireless facility will be FCC compliant, (b) A calculation of the RF emission levels to which members of the general public shall be exposed by the proposed wireless facility, which shall plainly and clearly disclose the assumed minimum distance between members of the public and the facility, and which distance was used to complete such calculation of exposure levels, (c)A certification that the calculation is based upon the proposed facility and its antennas operating at full power, (d)A clear indication of whether or not the applicant’s certification of FCC compliance is based upon the federal limits for general public/uncontrolled exposure or the federal limits for occupational/controlled exposure. (e)If the applicant’s certification of compliance is based upon federal limits for occupational/controlled exposure, the applicant shall further provide: (i) a description of the means by which the public’s access to the proposed facility will be restricted, and (ii) a description of the required warning signage which is to be installed, as described in FCC OET Bulletin 65, Supplement B, (Edition 97-10). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 50 Severability Provision I suggest the ordinance include a severability provision, and provide the following language for same. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - If any Section, subsection, clause, provision or phrase within this ordinance is, for any reason, held by Court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the remaining portions of this ordinance. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I look forward to meeting with the City Counsel to discuss my suggested revisions, and answer any questions the Counsel may have. Respectfully Submitted to the City of Calabasas, California, Andrew J. Campanelli CAMPANELLI & ASSOCIATES, P.C. 623 Stewart Avenue, Suite 203 Garden City, NY 11530 (516) 746-1600