Cell Towers and City Hall
Note: Please scroll down to see several City Urgency Wireless Facilities Ordinances that may be a model for your city, City Ordinances at-a-Glance and updated Key Elements of a Strong Local WTF Ordinance Updated 8:31:20 PDF Headlines on cell towers in the news are below, followed by information on legal challenges, legislation and links to city ordinances.
Small Cell Tower Applications: Cities Writing Preemptive Ordinances
Cities and counties are receiving more applications for small cell tower permits on city utility poles, schools and churches as industry is pushing to expand deployment of small cell antennas for 4G, 5G and the Internet of Things. With the passage of the FCC Ruling to speed deployment in 2018, local governments are responding by reviewing their wireless siting procedures and amending and rewriting cell tower ordinances and codes in order to maintain some measure of control in the placement of cell towers in addition to maintaining equitable revenue from cell tower installations.
To fight back citizens are arming themselves with knowledge about cell towers, property values, 5G, health and environmental issues related to telecommunications, the law as well as options to rewrite local wireless facilities ordinances. They are sharing this with local government officials as well as crowding city hall. Lawsuits and legislation are moving forward to define this new landscape as described below.
There is also an international effort to stop 5G on land and in space due to a multitude of concerning issues including privacy, security, interference with weather forecasting, night sky view obstruction, health, environmental and climate change concerns.
New FCC Rulings and Legislation to Preempt Local Control 2018
The passage of new Federal legislation and Federal Communications Commission FCC 5G FAST Plan , in September 2018, aim to streamline deployment of small cell wireless telecommunications facilities (WTF) and limit control by local governments for placement, fees, permit approval and timeline (shot clock) for “small cell” towers. These are in reality not “small” as they have standard cell tower RF emissions (3G, 4G), will be densely placed and will be located close to homes. In addition they will be in valuable public right of ways.
What has been changed in the FCC Order?
The requirement for wireless carriers to show a significant gap in coverage or to provide the least intrusive method of filing a gap have been removed for small cells according to the FCC document, although this is being challenged by cities. These basic requirements to show a significant gap in coverage and least intrusive methods are still law and stated clearly in the Telecommunications Act of 1996. Permits for small cell facilities are to be administrative and not by approval of city councils or boards (cannot be Conditional Use Permits according to FCC Order) There is a limit that cities can charge per pole and batched permits (multiple cell tower antenna) are allowed for a single permit process and cannot be denied. No moratoriums on cell towers are allowed. This policy took effect January 14, 2019 with an a deadline of March 14, 2019. Cities and Counties have struggled to understand the new rules and decide how they should proceed with updated or emergency wireless facilities ordinances despite the burden this creates on their local governmental processes. Some cities have continued to require similar conditional use single antenna permits for small and large cells towers as well as significant gap in coverage and least intrusive methods while awaiting a court decision on the FCC ruling. It may be overturned and ultimately deemed unconstitutional. Cites are also adding requirements to their ordinances for liability insurance without a pollution exclusion to protect them from liability.
FCC Order 18-133: A fact sheet and ruling of the FCC Order Docket 17-79 and 17-84 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment reviews new state and local requirements.
A legal report,“5G First, Safety Second” Policy, by Catalano, Gotting, Doughty, LLP, discussing the FCC Order and the ninth Circuit decision is here.
No Deemed Granted Provision….Unless States Have Passed Laws Otherwise
One important aspect of the FCC ruling is that there is no “deemed granted” provision. That is, if a city does not complete the application within the shot clock deadline of 60-90 days, the application is not “deemed granted”, or approved automatically. This means that the company would need to sue the city to make this happen. AT&T Services is suing the FCC for not adopting a “deemed granted” remedy when a state or local government entity fails to act on a request for small cells within a “reasonable time”. The FCC Order 18-133 does reduce the likelihood of a lawsuits by cities in adding this language. “State or local inaction by the end of the Small Wireless Facility shot clock will function not only as a Section 332(c)(7)(B)(v) failure to act but also amount to a presumptive prohibition on the provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II). Accordingly, we would expect the state or local government to issue all necessary permits without further delay. In cases where such action is not taken, we assume, for the reasons discussed below, that the applicant would have a straightforward case for obtaining expedited relief in court.” Note that a lawsuit can be filed to force a city to sign the permits but not for monetary damages.
Deemed Granted Provision Granted in California and Other States
California, however, passed AB 57 in 2015, which unfortunately did set in place a “deemed granted” provision if a small cell was not approved within the FCC Limits set. That means the permit for a “small” cell tower/cell towers would be automatically approved if there was no decision within the 60-90 day window. Many other states passed laws streamlining “small cell” towers as well.
- 5G “small cell” proliferation takes a hit in Cambridge MA. Sept 4, 2020. Scott McCullough. Nexus NewsFeed. https://www.nexusnewsfeed.com/article/health-healing/5g-small-cell-proliferation-takes-a-hit-in-cambridge-ma/
- Scarsdale Petition Calls for Seven Step Small Cell “Diet”. Inside Towers-Wireless Infrastructure Industry Publication. .August 31, 2020. https://insidetowers.com/cell-tower-news-scarsdale-petition-calls-for-seven-step-small-cell-diet/?utm_source=Inside+Towers+List&utm_campaign=19e0716620-EMAIL_CAMPAIGN_2020_08_27_12_32&utm_medium=email&utm_term=0_af16c4fc22-19e0716620-91674626
- Robert Kennedy Jr. Speaks Out Against 5G. August 28, 2019. Berlin, Germany. https://www.youtube.com/watch?time_continue=7&v=rOfEzw_V-Sw&feature=emb_logo
- How You can Tame 4G/5G Wireless in Your City. Attorney Mark Pollock. https://www.youtube.com/watch?v=csnxTOcF3A8&feature=youtu.be
- Limiting Broadband Investment to “Rural Only” Discriminates Against Black Americans and other Communities of Color. June 2020. Angela Siefer and Bill Callahan. https://www.digitalinclusion.org/digital-divide-and-systemic-racism/
- Bay Communications Files Suit in Maine Over Denied Tower Plans. June 23, 2020. https://insidetowers.com/cell-tower-news-bay-communications-files-suit-in-maine-over-denied-tower-plans/?utm_source=Inside+Towers+List&utm_campaign=9b9c7a1185-EMAIL_CAMPAIGN_2020_06_22_02_01&utm_medium=email&utm_term=0_af16c4fc22-9b9c7a1185-91674626
- Oregon for Safer Technology Defeats 4G Cell Tower Application at University. June 10, 2020. Activist Post. B.N. Frank. https://www.activistpost.com/2020/06/oregon-for-safer-technology-defeats-4g-cell-tower-application-at-university.html
- Texas company loses suit to install cellphone antennas in Oyster Bay. June 9, 2020. Newsday. Ted Phillips. https://www.newsday.com/long-island/nassau/antennas-cellphones-lawsuit-appeal-permits-1.45478249
- Anna Eshoo and 23 Congressional Representatives of the House Committee on Energy and Commerce Write Letter to Delay New FCC 5G Declaratory Ruling to Fast Track Deployment During Covid. June 2, 2020 https://energycommerce.house.gov/sites/democrats.energycommerce.house.gov/files/documents/FCC.2020.6.2.%20Letter%20re%206409%20Ruling%20and%20NPRM.CAT_.pdf
- Politicians urge FCC to apply brakes on 5G tower plan. June 3, 2020. Dians Goovaerts. Mobile World Live. https://www.mobileworldlive.com/featured-content/top-three/politicians-urge-fcc-to-apply-brakes-on-5g-tower-plan/
- FCC Chief Takes On the Pentagon…and DOT, and NOAA, and Energy. Todd Sheilds. Bloomberg. June 1, 2020. https://finance.yahoo.com/news/fcc-chief-taking-pentagon-dot-080000442.html
- Effects of 5G Wireless Communications on Human Health. European Parliamentary Research Service Briefing. March 2020. https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646172/EPRS_BRI(2020)646172_EN.pdf?fbclid=IwAR3cD0TDOqGHpOmCWPnANN-Y6RBaa0eoQ4ZN0nuUwpVaLL8MIDtt6aKtiYM
- 5G: State of Play in Europe, USA and Asia. In Depth Analysis. April 2020. European Parliament. “As 5G is driven by the telecoms supply industry, and its long tail of component manufacturers, a major campaign is under way to convince governments that the economy and jobs will be strongly stimulated by 5G deployment.”
- Inside the fight between my small Iowa hometown and a $12 billion utility over smart meters and the radiation that some residents call ‘poison’. Business insider. May 31, 2020. Benji Jones. https://www.businessinsider.com/a-small-towns-battle-against-smart-meters-and-a-utility-2020-5
- Screen New Deal: Under Cover of Mass Death, Andrew Cuomo Calls in the Billionaires to Build a High-Tech Dystopia. Naomi Klein.May 8, 2020.https://theintercept.com/2020/05/08/andrew-cuomo-eric-schmidt-coronavirus-tech-shock-doctrine/
- Google affiliate Sidewalk Labs abandons Toronto smart-city project. Josh O’Kane, The Globe and Mail, May 7, 2020. https://www.theglobeandmail.com/business/technology/article-google-affiliate-sidewalk-labs-abandons-toronto-smart-city-project/
- Fiber broadband, seen as a complex Trojan horse. B. Blake Levitt, TriCorner News, March 20, 2019. https://tricornernews.com/fiber-broadband-seen-complex-trojan-horse
- Fiber Broadband and Small Cells: An Unholy Municipal Alliance. B. Blake Levitt, CounterPunch, May 13, 2019. https://www.counterpunch.org/2019/05/13/fiber-broadband-and-small-cells-an-unholy-municipal-alliance/
- Health workers call for caution over 5G roll-out. May2, 2020. Brussels Times. https://www.brusselstimes.com/all-news/belgium-all-news/109231/health-workers-call-for-caution-over-5g-roll-out/
- Is 5G Going to Kill Us All?: A new generation of superfast wireless internet is coming soon. But no one can say for sure if it’s safe. Christopher Ketcham, The New Republic, May 8, 2020. https://newrepublic.com/article/157603/5g-going-kill-us-all
- Smart Tech’s Carbon Footprint. Ecologist. Matthew Barton. April 30, 2020. https://theecologist.org/2020/apr/30/smart-techs-carbon-footprint
- 5G Moratorium can be placed by cities as it is a non-essential activity during quarantine, advises Children’s Health Defense attorneys. April 2020. https://childrenshealthdefense.org/news/tell-your-municipality-to-pass-an-emergency-ordinance-to-stop-deployment-of-5g-during-quarantine/
- INTERNATIONAL STOP 5G GLOBAL PROTEST DAY April 25, 2020 Video. WE DO NOT CONSENT. https://www.youtube.com/watch?v=mrgGuTwJq9k
- “Breaking News: Cell phone story by New York Times reporter William Broad violated truth and accuracy code of Press Council of Ireland”. Professor Tom Butler and The Irish Times. Feb 6, 2020. https://www.irishtimes.com/opinion/professor-tom-butler-and-the-irish-times-1.4164003. Press Ombudsman Report- https://www.pressombudsman.ie
- On the Clear Evidence of the Risks to Children from Non-Ionizing Radio Frequency Radiation: The Case of Digital Technologies in the Home, Classroom and Society. Professor Tom Butler. University of Cork, Ireland. May 2020. https://www.radiationresearch.org/articles/on-the-clear-evidence-of-the-risks-to-children-from-non-ionizing-radio-frequency-radiation-the-case-of-digital-technologies-in-the-home-classroom-and-society/ or 5G Professor Tom Butler On the Clear Evidence of the Risks to Children from Non-Ionizing Radio Frequency Radiation or here
- Opinion by Diane Feinstein: Cities should decide how and where 5G is deployed. We can’t ignore how potentially intrusive deployment of internet infrastructure will affect our cities. The Mercury News. Jan 16, 2020. https://www.mercurynews.com/2020/01/16/opinion-cities-should-decide-how-and-where-5g-is-employed/
- The FCC’s Approval of SpaceX’s Starlink Mega Constellation May Have Been Unlawful. January 16, 2020. Jonathan O’Callaghan. Scientific American. https://www.scientificamerican.com/article/the-fccs-approval-of-spacexs-starlink-mega-constellation-may-have-been-unlawful/
- Village of Western Springs, Illinois Sends Letter to Crown Castle Demanding NEPA Proof and Later Application Withdrawn. Small Cell Wireless Technology-Village of Western Springs Web Page Letter to Crown Castle from Village of Western Springs Dec 2019 here
- The Health Impacts of Cell Towers: A Trojan Horse for 5G. Point Reyes Light. California. Jan 1, 2020.
- Los Altos Council denies Verizon, AT&T cell node. Los Altos Town Crier. Dec 18, 2019. Melissa Hartman. https://www.losaltosonline.com/news/sections/news/199-city-affairs/61583-los-altos-council-denies-verizon-at-t-cell-node-appeals
- 500 Meter buffer recommended around schools, hospitals and homes. “Limiting liability with positioning to minimize negative health effects of cellular phone towers.” (2019) Pearce M. Environmental Research, Nov 2019; https://www.sciencedirect.com/science/article/abs/pii/S0013935119306425
- Cities Speak: National League of Cities (NLC), Local Allies Oppose Wireless Petitions Before FCC [and preemption to limit local authority]. National League of Cities. Nov 4, 2019. Angelina Panettierra. https://citiesspeak.org/2019/11/04/nlc-local-allies-oppose-wireless-petitions-before-fcc/
- First Report of 5G Injury from Switzerland. PST Blog July 20, 2019. https://mdsafetech.org/2019/07/20/the-first-report-of-5g-injury-from-switzerland/
More Headlines from 2019: Headlines Cell Towers and City Ordinances 2019 PDF
- 5G Telecommunications Science
- 5G Mobile Communications
- Cell Tower Health Effects
- Wi Fi in Schools
- Safety Tips for Wireless Devices
Video Testimony Against 5G in City Council Meetings
- Sacramento, California-Testimony of first 5G injury in the Capital- https://www.youtube.com/watch?v=qQDmIcB4qIo
- Encinitas, California – https://www.youtube.com/watch?v=32FHuKfKj2w
- San Francisco, California – https://www.youtube.com/watch?v=P7jQqmHFVlw&t=365s
Children Sick After 4G/5G Small Cell Installation in Sacramento
Aaron and Hannah McMahon testify in Sacramento, California, alongside their daughter, who has suffered health symptoms since a new 4G/5G cell tower was placed just several feet from their daughter’s bedroom window. An August 2019 article about health concerns in Sacramento tries to explain 5G technology but fails to mention that most all of the “small cell” towers will have 4G technology well before 5G frequency wavelengths are in place. In addition, 5th Generation wireless technology now comprises low bands (cell phone) and mid band (Wi Fi) regions, which are similar to cell phone and Wi Fi frequency ranges that are already used and found to be biologically active and harmful. 5G, we now know, uses a multi-tier 5G strategy with a broad mix of radiofrequencies, not just small millimeter wavelengths in the high frequency band. The article goes on to quote UC Davis radiology expert, Jerrod Bushberg, PhD., who argues that this non-ionizing radiation is safe as there is not enough energy to remove electrons from atoms. This ignores a plethora of scientific evidence that the mechanism of toxicity of non-ionizing wireless radiation is more like chemicals, which cause oxidation of cellular structures and membrane alterations, not an ionizing radiation as in X-rays.
Video – 5G – Is it Coming To Your Front Yard?
Florida Resident explains 5G and how Florida laws passed that are friendly to telecom have resulted in illegal and improper placement of cell towers by AT&T subcontractors, as well as fires from installation. 5G – Is it Coming To Your Front Yard?
Tips to Pass a Strong Local Urgency Wireless Facilities Ordinance
As cities are called upon to abide by the FCC Order to streamline placement of small cell towers for proposed 5G equipment or just to add 4G “small cells, residents are fighting back to protect their families. Here is a list of items and resources, gleaned from others work, to pass a strong local ordinance. Tips for Passing Strong City Urgency Wireless Facilities Ordinance for “Small Cells”
Key Elements of a Model Ordinance from PST (compilation)Key Elements of Strong Local Ordinances Physicians for Safe Technology PDF
Local San Francisco Groups Working on Cell Tower Issues (from EHTrust).Local San Francisco Resources for Cell Tower and Wireless Communications
EHTrust List of International Efforts to Block 5G https://ehtrust.org/international-actions-to-halt-and-delay-5g/
NEPA Court Decision Used by Cities to Delay or Deny 5G Small Cell Towers
A landmark Federal court case – NRDC vs FCC – was decided August 9, 2020 in favor of Native American tribes to be able to use the National Environmental Policy Act (NEPA) process to review as well as to deny applications for cell towers on the basis of the affects on the human environment and historic preservation. All major Federal projects require a level of environmental analysis and review under NEPA. The FCC stated NEPA review was eliminated for deployment of 5G small cell towers for historic preservation or alteration of the human environment. The judge, however, ruled in favor of the NRDC and the Native American tribes stating, “The [Federal Communications] Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order’s deregulation of small cells is thus arbitrary and capricious.” Full NEPA Blog here
The Telecommunications Act Here is the FCC Policy on NEPA and Cell Tower and Antenna Siting. Regarding siting of cell towers, they state, “FCC environmental rules categorically exclude all actions from detailed environmental review except those associated with the construction of facilities that fall into certain categories.”
These categories include those
- In wilderness areas (typically Federal lands)
- Affecting endangered species
- In areas of National Register of Historic Preservation, or Indian religious or cultural areas
- In floodplain
- Create significant changes in surface features(deforestation, in wetlands, water diversions
- Affect migratory birds (over 450 feet)
- Create high intensity lighting in residential areas
The Village of Western Springs, Illinois, recently challenged Crown Castle on NEPA review in a detailed letter, citing several areas where their application was incomplete. This included areas of insurance and liability compliance, clarification of carriers vs equipment owners and operators, performance and monitoring specifications, and proof that establishes the small cell tower installation meets requirements for NEPA exemption. Crown Castle later withdrew their application. For a city requesting this requirement, it may at least delay an application until the 9th Circuit Court of Appeals decision on the FCC Ruling (Moved from 10th District Court of Appeals) .
5G Information Flyer- EH Trust
Environmental Health Trust has developed a 5G Flyer that concisely explains the issue. To download click here EHT 5G Flyer. You can also visit EHTrust 5G Health Effects webpage here. EHTrust Top Facts on 5G is here.
The San Francisco Battle and a Win for Local Control
A win for cities occurred April 4, 2019 in a California court, as the battle for local control of cell tower placement continues. San Francisco challenged the FCC interpretation of the 1996 Telecommunication Acts rules which state that phone companies cannot install equipment that may “incommode the public use of the road.” Telecom companies considered that language to mean obstructing travel, but the state Supreme Court unanimously agreed that telecom companies have to abide by SF 2011 Ordinance which requires a permit for large cell tower placement and that cities can deny a cell tower permit on the grounds of aesthetics.
Court States A City Can Require a Conditional Use Permit Based on Aesthetics
In a later determination of MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO. Defendants and Respondents. Decided: September 15, 2019 A144252, the court stated, “In general, courts are cautious in applying the doctrine of implied preemption: ‘[I]n view of the long tradition of local regulation and the legislatively imposed duty to preserve and protect the public health, preemption may not be lightly found.’ [Citation.] Where local legislation clearly serves local purposes, and state legislation that appears to be in conflict actually serves different, statewide purposes, preemption will not be found.” (San Diego Gas & Electric Co. v. City of Carlsbad, supra, 64 Cal.App.4th at p. 793.) and also
“The Ordinance unquestionably allows the City to condition approval of a particular Wireless Permit on aesthetic considerations…Plaintiffs’ position is that “incommode” means only physical obstruction of travel in the public right-of-way. The City, on the other hand, points out that the dictionary definition of “incommode” is broader and includes “inconvenience, discomfort, and disturbance beyond mere blockage.” (See Merriam Webster Online Dictionary … incommode> [as of Sept. 15, 2016] [defining “incommode” as “[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition”; denoting “less than annoy, vex or harass”; e.g., “We are incommoded by want of room to sit at ease”].) We must construe the statute.”
Judge Corrigan notes, “For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example,
- lines or equipment might generate noise,
- cause negative health consequences, or
- create safety concerns.
All these impacts could disturb public road use, or disturb its quiet enjoyment.” These arguments can be used to legally allow cities to place cell towers such that they “DO NOT INCOMMODE THE PUBLIC”
Next Century Cities Report on FCC Ruling
A report by Next Centuries Cities clearly explains the FCC Ruling and implications for cities for Docket No. 17-79; WC Docket No. 17-84. Summary of Final FCC Small Cell Order- Next Centuries Cities. The paper also explains that there is NO DEEMED GRANTED clause in this order i.e. no automatic approval. As above, in California AB57 passed in 2015, which granted automatic permitting of cell towers if not approved or denied within the shot clock.
100 Cities in Court Challenge New FCC Rules
After the September 26, 2018 Ruling was passed by the FCC, more than a dozen cities including Los Angeles, Seattle and San Jose, challenged the FCC over these restrictions. The wireless industry states they will loose $2 Billion, but the cities consider that it is instead a giveaway to industry. The Ninth Circuit Court was asked to review the rules and give an opinion. On November 6, 2018, these lawsuits were consolidated with several other lawsuits in the western States including Las Vegas and Portland, and through a lottery, sent to the 10th Circuit Court of Appeals. The list of cities involved in the lawsuit can be found here. The lawsuit may be decided February 2020.
The U.S. Conference of Mayors: Overreach of Authority
The United States Conference of Mayors has called this an overreach of authority. The CEO of the U.S. Conference of Mayors, Tom Cochran, stated, “The FCC action misapplies federal law to federalize local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-way and public property.”. He also noted that this is “an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.” The Conference of Mayors supports the lawsuit against the FCC Ruling. Here is their statement: Statement by U.S. Conference of Mayors CEO & Executive Director Tom Cochran on FCC’s Order Proposing to Usurp Local Property Rights.
10th Circuit Court of Appeals Transfers FCC Case to 9th Circuit
On January 10, 2019 the Tenth Circuit Court of Appeals denied the motion to stay the FCC Declaratory Ruling FCC 18-133, stating that the cities did not demonstrate that they would suffer irreparable harm without the stay. The same day however, the Court granted a transfer of the cities petition against the FCC back to the Ninth Circuit Court of Appeals where it originated.
In the original filing the cities have argued that the FCC Declaratory Ruling is ambiguous, overreaching, unreasonable and raises constitutional issues. A stay will “serve the public’s strong interest in “preserving the status quo ante litem until the merits of a serious controversy can be fully considered.” It is thought by some that the decision by the Ninth Circuit Court of Appeals will not be heard until the summer of 2019 with a decision in early 2020.
San Jose Mayor Liccardo Outspoken About FCC Overreach of Authority
Mayor Sam Liccardo, who has led the fight against the FCC Order in San Jose resigned from the FCC’s Broadband Deployment Advisory Committee in January 2018 stating, “It has become abundantly clear that despite the good intentions of several participants, the industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public,” Mayor Sam Liccardo Resignation Letter, January 25, 2018.
U.S. Court of Appeals Motions, Oppositions and Respondents in FCC Lawsuit by Date
- FCC Lawsuit-San Jose et al Motion to Stay -10th-circuit-case-18-9568- Dec 17, 2018
- FCC Lawsuit -Respondant- January 1, 2019, Wireless industry opposition to motion to stay- 10th Circuit Case-18-9568
- FCC Lawsuit- Respondant- January 2, 2019, Wireless industry review and opposition to motion for stay of 10th-Circuit Case-18-9568
- FCC Lawsuit- Court reply to oppositions to motion to stay, January 8, 2019, -10th Circuit Case-18-9568
- FCC Lawsuit- Transfer from 10th to 9th Circuit Court of Appeals January 10, 2019
26 States Pass Legislation to Streamline Small Cell Deployment
In 2018, 20 states passed industry-backed legislation to streamline deployment of small cells with a cap on fees charged and fast timelines for approval. Now 26 states have done this. More states are expected to pass legislation to streamline cell systems in 2019, however there are already many challenges to the FCC rules as well as municipal lawsuits against states. The American Legislative Exchange Council (ALEC) is an industry group with abundant resources that educates legislators and provides model legislation that is then easily and quietly passed to promote industry objectives. They are supporting rapid deployment of small cells. PR Watch at the Center for Media and Democracy has written this.
States with Small Cell Streamline bills: Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia.
- Legislation Streamlining Wireless Small Cell Deployment Enacted in 25 States
- 5G Small Cell Deployment: Every Current State Law
Source: National Conference 0f State legislators
Congress Members Blumenthal and Eshoo Ask for Proof of 5G Safety
During a Senate Commerce Committee field hearing on October 12, 2018, held in Sioux Falls, South Dakota, titled “Race to 5G, A View from the Field”, Mayor TenHaken requested the FCC provide studies which show that this technology is safe for his constituents and taxpayers prior to placing 5G cell towers in close proximity to libraries, schools and homes. December 3, 2018 Congress members Blumenthal and Eshoo then wrote a letter to FCC Commissioner Carr asking for proof of safety of 5G. An article by Businesswire summarizes the press conference which was videotaped.
Journalist Blake Levitt spoke at Senator Blumenthal’s press conference, explaining the lack of scientific literature on 5G and underscoring that thin skinned amphibians and insects will be most affected by this technology with disastrous results. She concluded that“The FCC is completely unprepared, unable and possibly unwilling to oversee 5G for safety, even at it barrels toward us.” Citizens are now writing letters to their local congress members asking for support for an investigation into the FCC, 5G safety as well as reevaluation of FCC exposure standards. See PST Blog here.
Congresswomen Eshoo and Speier Introduce HR 530 to Block FCC Cell Tower Preemption Order
In a courageous move to preserve local government control, Federal bill HR 530 was introduced January 14, 2019 in the House of Representatives by California Congresswoman Anna Eshoo, to invalidate the Federal Communications Commission’s (FCC) September 26, 2018 ruling to accelerate the deployment of 5G small cells throughout the U.S. Congresswoman Jackie Speier was the first to co-sponsored the bill and now there are 49 Co-Sponsors
Eshoo HR 530
Federal bill HR 530 is titled- To provide that certain actions by the Federal Communications Commission shall have no force or effect. It simply states,“PRESERVATION OF RIGHTS OF STATE AND LOCAL GOVERNMENTS: Actions by the Federal Communications Commission in ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ (83 Fed.Reg. 5186783) and the Federal Communications Commission’s Declaratory Ruling in ‘‘Third Report and Order and Declaratory Ruling’’ (FCC 18-111) shall have no force or effect.” See Blog https://mdsafetech.org/2019/01/22/congresswomen-eshoo-and-speier-introduce-hr-530-to-block-fcc-cell-tower-preemption/
Senator Feinstein Introduces SB 2012 ‘‘Restoring Local Control Over Public Infrastructure Act of 2019’’
On June 27, 2019 Senator Dianne Feinstein introduced SB 2012, a senate companion bill to Congresswoman Anna Eshoo’s HR530, which would similarly repeal FCC rules that limit state and local government control over telecom infrastructure. The bill is cosponsored by Charles Schumer (N.Y.), Michael Bennet (Colo.), Kamala D. Harris (Calif.), Ron Wyden (Ore.), Ben Cardin (Md.) and Richard Blumenthal (Conn.). The bill is supported by the U.S. Conference of Mayors, National Association of Telecommunications Officers and Advisors, American Public Power Association, Communications Workers of America, National Association of Counties, League of California Cities and American Public Works Association. Feinstein press release. Restoring Local Control Over Public Infrastructure Act of 2019’’
Senator Blumenthal Blasts FCC and FDA for No Research on 5G Safety
At a Senate Commerce Committee meeting, “Winning the Race to 5G and the Next Era of Technology Innovation in the United States”, Senator Blumenthal brought up the question of scientific evidence of the safety of 5G. He stated, “I believe that Americans deserve to know what the health effects are. Not to prejudge what scientific studies may show. They deserve also a commitment to do the research on outstanding questions….How much money has the industry committed to support independent research?…has any been completed… on the biological effects of this new technology?” Industry representatives replied, “There are no industry backed studies to my knowledge right now.” Senator Blumenthal replied, “ so, we are flying blind here on health and safety”. There was no mention of public safety or environmental concerns aside from that brought up by Senator Blumenthal. The lengthy but enlightening full video of the Senate Commerce Committee meeting is here. PST Blumenthal Blog post here.
Cities That Have Emergency Wireless Ordinances
California cities have already begun passing urgency ordinances for 5G/Small Cells: Petaluma, Mill Valley and other cities have written and updated their ordinances to maintain some control of utility poles and cell towers until the rulings become law. Calabasas, California has an ordinance with not only preferred locations but also restrictions on small or large cell towers in residential areas (see below). Burlington Massachusetts set up a policy to require annual recertification of small cells with a fee, causing Verizon to withdraw it’s application. Cities are also looking at Municipal Fiberoptic Options and also working to protect copper landlines in cities to protect this important sophisticated emergency communication system. Many other states have taken the advice of telecom companies and have passed state 5G streamlining and small cell bills.
Santa Cruz Votes to Deny Permit
The City of Santa Cruz recently voted on February 26, 2019 to 3 to deny a Verizon permit for a cell tower application even though the antenna was approved by the Zoning Administrator in November, 2017 along with a condition of the approval that an encroachment permit approval is required. Santa Cruz also voted to support Anna Eshoo’s HR 530 to block the FCC Ruling to streamline 5G small cell towers. To see video of the Santa Cruz City Council Meeting go here. Council’s remarks on this issue begin around 2 hours 20 minutes. The Santa Cruz Resolution to support Representative Eshoo’s HR530 is here- Santa Cruz Resolution Support Eshoo HR530
Americans for Responsible Technology (ART): Model Ordinance
An alliance of over 50 groups has formed to educate others and fight rapid deployment of small cell and 5G towers. They have developed their own model ordinance which they state is consistent with current law. It is not intended as legal advice but for information. There may be other aspects of city ordinances listed below that are valuable to look at and include, including maintaining a conditional use permit for all cell towers (small or large) as Sonoma City has done. ART notes, “Local municipalities should be aware that sample ordinances offered by wireless telecommunications companies, their subcontractors or the organizations they sponsor are generally not protective of the rights, welfare and property of local municipalities, their homeowners and other residents.”
Scenic America Model Cell Tower Ordinance for Cities
Scenic America has developed a model ordinance as well, combining aspects of several cities and the Americans for Responsible Technology.
Boulder Colorado Model Ordinance Components
Boulder Colorado Has Expert Legal Opinion to Maintain Local Control of Small Cell Towers, by Attorney Grant Wilson. Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report
This detailed report notes the influence of industry. “The goal of these laws is to preempt local authority from regulating public rights-of-way and to pave the way for the massive proliferation of 5G within a short timeframe…There has been significant opposition to the FCC Order from local governments, environmental groups, grassroots organizations, and others. The U.S. Conference of Mayors stated that the FCC Order “…misapplies federal law to federalize local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property.”
He also gives valuable language and justifications for ordinance provisions:
- Minimum distances between SCFs: Warren, Connecticut, all applicants for new telecom facilities have to show “evidence of need,” including demonstration that existing facilities do not provide adequate coverage and/or adequate capacity to the area.
- Setbacks from Residences and Other Specific Places.
- Preferred Locations: While 5G bans in certain areas are likely illegal, some communities promote a hierarchy of zoned areas in which new communications facilities should be built.
- Health Considerations: Some communities, such as Mill Valley, require annual EMF readings to ensure that wireless facilities comply with federal and state laws.
- Mockups, Drawings, Surveys: .Monterey, CA, has an application requirement for full-size mock-ups of all proposed SCFs to consider aesthetics, fire hazards, and threats to anything historic.
- Charging Appropriate Fees, Even Beyond the “Safe Harbor” Fees: Fee levels from the FCC Order are not absolute.
- Public Notifications
Legal Advice BB&K- Maintain Conditional Use Permit for Small Cells
“…If you are faced with a situation where you feel compelled to grant an application because of the FCC rules, you may wish to make the permit conditional, so that it terminates if the FCC rule is overturned.” Note: Sonoma City kept this in their ordinance.
The legal firm of Best Best and Krieger has written a synopsis of the FCC Order to streamline deployment of small cells with advice to cities. One major piece of advice is that the FCC order may be reversed thus cities may want to continue to require a conditional use permit for each cell tower- small or large. Here is a link to their article B B & K on FCC Order and Ruling 18-133- Shot clocks and other rulings preempting cities or BBK New FCC Shot Clocks and Other Rules Preempting Local Authority Over Wireless Take Effect Today – Best Best& Krueger PDF
Examples of City Small Cell Wireless Facilities Emergency Ordinances
- City of Belvedere, California https://www.cityofbelvedere.org/DocumentCenter/View/5641/Item-11
- City of Berkeley, California Draft July 2019 Berkeley Draft Update Wireless Facilities Ordinance 2019. Item 9 Supp Wengraf
- Calabasas, California (very strong) . https://www.cityofcalabasas.com/pdf/wireless/Wireless_Facility_Ordinance-w_CC_Changes052312.pdf
- Fairfax, California. Fairfax Emergency Wireless Ordinance 2018
- Hillsborough Wireless Update January 2019 (weak) https://library.municode.com/ca/hillsborough/codes/code_of_ordinances?nodeId=TIT15BUCO_CH15.32WICOFA or https://www.hillsborough.net/482/Wireless
- Los Altos, California (very strong) passed Aug 5, 2019
- Ordinance Wireless Facilities 2019-460 -General Provisions https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/48421/2019-08-05_19-460_1.pdf
- Resolution No. 2019-35 of the City of Los Altos Adopting Design and Siting Guidelines and Standards for Wireless Facilities. Site preferences, setbacks from schools, spacing, noise, tree separation… are here https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/48421/resolution_no._2019-35.pdf
- Fee Chart for Wireless Facilities in Los Altos, California. Resolution 2019-36. https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/48421/resolution_no._2019-36.pdf
- City of Mill Valley, California (strong) http://cityofmillvalley.granicus.com/MetaViewer.php?view_id=2&clip_id=1290&meta_id=59943
- Monterey Ordinance 2018. Monterey Herald Oct 3, 2018
- Appeal to prevent Verizon towers at Community Hospital of Monterey Peninsula Monterey Hospital Cell Antenna Apeal to Postpone, Letter by Nina Beety CHOMP 3-13-20 Appeal letter on grounds,
- Attorney Response to appeal Attorney Response to Appeal 5-19-20 Mtry CC, AT&T 6, Mackenzie and Albritton, LLC
- Newark, California. http://www.newark.org/home/showdocument?id=4629
- Palos Verdes, California (Medium) New Ordinance 2019 – https://www.rpvca.gov/DocumentCenter/View/13741/RPV—ROW-Wireless-Telecommunications-Urgency-Ordinance-April-2-2019. Old Ordinance 2016-https://www.rpvca.gov/DocumentCenter/View/7952/RPV—ROW-Wireless-Telecommunications-Urgency-Ordinance
- Petaluma, California (setbacks good) https://www.codepublishing.com/CA/Petaluma/html/Petaluma14/Petaluma1444.html
- San Anselmo, California https://www.townofsananselmo.org/DocumentCenter/View/23883/Wireless-Policy-in-effect-September-26-2018
- San Raphael, California https://www.cityofsanrafael.org/documents/ordinance-1967/ and https://www.cityofsanrafael.org/documents/resolution-14621/
- Sonoma City, California (strong) https://sonomacity.civicweb.net/document/17797
Suisun, California (medium) https://www.suisun.com/small-cells/
Emergency 5G Ordinances at a Glance
Cities such as Sonoma City, Calabasas, Fairfax, Mill Valley and Los Altos, California are deciding to pass strong Emergency Wireless Telecommunications Facilities Ordinances to maintain some modicum of local control over placement and monitoring of cell towers.
A FEW KEY ADDITIONS TO CONSIDER FOR ALL ORDINANCES:
See below a full list of PST Key Elements of a Model Ordinance following Emergency 5G Ordinances at a Glance.
1) Provision to revoke emergency ordinance: If FCC Order is overturned by HR530 or Feinsteins Senate bill SB 2012, a city may be able to overturn the permitted cell towers if they have a clause voiding the agreement or requiring it modification in the event of a regulatory change (overturning the FCC Order), according to a report by Next Century Cities
2) Location and configuration preferences as did Mill Valley, Palos Verdes, Suisun City
3) Right of way rules including a 1500 ft separation between wireless facilities as did Palos Verdes, Petaluma, Mill Valley and Suisun City
4) 500 Meter buffer around schools, hospitals and homes. “Limiting liability with positioning to minimize negative health effects of cellular phone towers.” (2019) Pearce M. Environmental Research, Nov 2019. https://www.sciencedirect.com/science/article/abs/pii/S0013935119306425. Note: 500 ft buffer (or more) from residencies (or businesses) placed in ordinances from Petaluma and Suisun City
5) Restrictions or permitting in sensitive, aesthetic or historic areas that may “incommode the public”as in San Francisco lawsuit
6) Americans for Disability Act compliance language as did Palos Verdes, Mill Valley, and Sonoma City. “All facilities shall be in compliance with the Americans with Disabilities Act (ADA).”
7) Radiofrequency: RF Compliance Report and RF Data Request Sheet (Attachment A): Require all applicants to submit an RF Compliance Report signed by a registered Professional Engineer, together with a completed form RF Data Request Sheet (Attachment A) that provides technical information sufficient for power density verification. The RF Compliance Report should provide power density calculations in microwatts per centimeter squared (uW/cm2) as well as percent of FCC standard; and power density calculations should be provided in tabular form showing power density at 10’ increments out to a distance of 1000 feet at ground level (6’) and to second-story building level (16’). Attachment A – RF Data Request Sheet.
Note: Mandate that random RF measurements can be done by independent contractor and paid for by the telecommunications company
8) Require general liability insurance that does not have a pollution exclusion
9) Keep provisions for significant gap in coverage and least intrusive methods
Note: Vertical, Horizontal and Power Radiated From Cell Antenna Could Possibly be Regulated by Cities to Reduce Emissions and Risk
There is another perspective from a group advocating ordinance rules which control the amount of radiation from cell tower antennas that are placed and thus not “effectively prohibit” cell towers in a city (which is illegal). They advocate writing into the ordinance what effective power can be radiated, as well as vertical and horizontal offsets, which are just enough to get 5 bars on a cell phone at 1/2 mile at radiation levels much lower than typical RF compliance reports propose. As always, having a qualified attorney who is independent of industry influence examine the ordinance rules is recommended. Information found here at Vertical-Horizontal-Power.
City Ordinances At a Glance
- Calabasas, California Ordinance
- Permits required for both small and large cell towers
- Least intrusive location and evidence of significant gap in coverage
- Visual simulations
- FCC compliance affidavit
- Noise study
- Preferred/most appropriate location
- Undergrounding of equipment
- If coverage is for out of town applicant must address why it cannot be located elsewhere
- Independent expert review
- Performance bond requirement
- Restricted locations-No towers in residential zone, Old Town overlay, Historic designation, Open Space zone, park or playground, or ridgeline
- Fairfax, California- elements of Fairfax Ordinance passed Sept 26, 2018. They have also been studying alternative fiberoptic networks
- No differential between large or small cell towers
- Conditional Use Permits required for all cell towers
- Order of preference for both configuration and location listed
- No speculative facilities
- Poles no less than 18 feet rom roadway
- 1500 foot separation between small cell towers
- Pole height limits between 20 to 35 feet
- Compliance with the Americans with Disabilities Act-
- Allow reasonable access and not interfere with public utilities, easements or rights of way
- Town to retain a consultant to perform annual testing, demonstrating compliance with current regulatory and operational standards and do not pose an undue electrical risk
- The permittee assumes full liability for damage or injury caused to any person or property by the facility
- Indemnification clause for the city
- Relocation or removal clause
- Voluntary pre-submittal conference
- Non voluntary submission of permit in person
- Mill Valley, California– (strong) Elements of Mill Valley Ordinance Sept 6, 2018
- Preference for locations in commercial districts
- Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts
- 1500 foot buffer between small cell facilities
- Adheres to the Americans for Disability Act
- Underground (flush to the ground, within three (3) feet of the utility pole), all ground-mounted equipment not installed inside the pole.
- Connect to an existing utility pole that can support its weight.
- Encourages co-location on existing towers
- Newark, California- Elements of Newark Ordinance (no setbacks but many administrative rules) Ordinance
- Master License Agreement 5 years and automatically renews for subsequent one (1)-year intervals, subject to each party’s option to not renew upon notice to the other party.
- Annual License Fee per City-owned pole would be $500 each, and the fee per City Associated Facility would be $1,000 each, both subject to an annual 3% increase or as modified by the City Council
- permit applicant provides evidence satisfactory to the City demonstrating the property owner’s consent or other form of proof demonstrating Applicant’s legal right to use the property
- Administrative Fee – The initial deposit to process Master License is $4,000. For each Pole or Associated Facilities License, Licensee will be required to pay an initial Administrative Payment in the amount of $1,865, which includes a non-refundable Administrative Fee
- The City retains possession and control of all License Areas and City Poles for City operations, which will at all times be superior to Licensee’s interest
- Commercial General Liability insurance of $2 million per occurence
- Workmans comp insurance $1 million
- Commercial Automobile Liability Insurance with limit not less than $2 million each occurrence
- Licensee will not operate or maintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone, and other transmission or reception) or computer equipment lawfully and correctly used by any person, including the City or any of its Agents.
- Palos Verdes – Newer Ordinance- Added preferred locations– https://www.rpvca.gov/DocumentCenter/View/13741/RPV—ROW-Wireless-Telecommunications-Urgency-Ordinance-April-2-2019. Older ordinance. No setbacks but many requirements. Jan 20, 2016 https://www.rpvca.gov/DocumentCenter/View/7952/RPV—ROW-Wireless-Telecommunications-Urgency-Ordinance
- New-Preferred Locations in the Public Rights-of-Way: The City prefers SWF in the public rights-of-way to be installed in locations, ordered from most preferred to least preferred, as follows: 1) Arterials 2) Commercial Zoning, 3) Institutional zoning, residential 4) Any location in any district 250 feet from any structure approved for residential use.
- New-Preferred Locations for Support Structures in the Public Rights-of-Way: The City prefers SWFs to be installed on support structures in the PROW, ordered from most preferred to least preferred, as follows:
- Existing or replacement streetlight poles;
- Existing or replacement wood utility poles;
- Existing or replacement street sign poles;
- New, non -replacement streetlight poles;
- New, non -replacement poles for small wireless facilities
- New-Disfavored Locations: New locations Requiring an Exception for Major WTFPs. Major WTFPs are strongly disfavored in certain areas and on certain support structures. Therefore the following locations are permitted only when an exception has been granted pursuant to Subsection C hereof: residential zones; Coastal Specific Plan
- New- Prohibited Support Structures. The City prohibits SWFs to be installed on the following support structures:
- Strand-mounted wireless facilities are prohibited.
- Decorative poles;
- Traffic signals, cabinets and related devices;
- Any utility pole scheduled for removal or relocation within 12 months from the time the approval authority acts on the small cell permit application;
- New, non-replacement wood poles.
- New-Americans with Disability Act- All facilities permitted pursuant to this chapter shall comply with the Americans with Disabilities Act.
- Administrative Permit: The director may, in the director’s discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the planning commission for approval and the director shall convert the application to a Major Wireless Facilities Permit application and refer it to the planning commission if deemed appropriate
- Individual Encroachment Permits: An individual encroachment permit shall be required for each wireless telecommunications facility.
- Notification Address labels: When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation
- Old-Permit Expiration: Permit automatically expires after 10 (or X) years
- Old-Removal Clauses: Removal of cell tower at end of expiration date of the permit,
- Authorization from Property Owners: The applicant shall provide a duly executed written authorization from the property owner(s )authorizingthe placement of the facility on or in the property owner’s property.
- A Justification Study: A justification study which includes the rationale fors electing the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve;and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option
- Scaled Plans: Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening
- Environmental Assessment: A completed environmental assessment application
- Visual Impact Study: An accurate visual impact analysis showing the maximum silhouette, viewshed analysis,colorand finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles
- RF Guidelines Checklist: Completion of the radio frequency(RF) emissions exposure guidelines checklist
- RF Compliance Report: For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the city that certifies that the proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits and frequency, power limits, orientation, boundaries of excess RF
- Acoustic Analysis: A noise study prepared by a qualified acoustic engineer to comply with city codes
- Traffic Control Plan: A traffic control plan will be submitted
- Certification of right-to-enter: Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way
- Mock-up: Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days
- Planning Commission Hearings: Any permit application under this chapter subject to planning commission approval shall require notice and a public hearing
- Notification of Shot Clock Expiration: The applicant is required to provide the city written notice of the expiration of any shot clock, which the applicant shall ensure is received by the city (e.g.overnight mail) no later than twenty (20) days prior to the expiration
- No New Poles: Only pole-mounted antennas shall be permitted in the right-of-way.All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole
- Performance Bond: Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney’s office, which shall be in effect until the facilities are fully and completely removed
- Notification of Changes to Structure: The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property…
- Permittee Has Full Liability: The permittee shall assume full liability for damage or injury caused to any property or person by the facility
- Indemnification of the City for Harm of Property or Person from Wireless Communications FAcilites: permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits
- Notification of Emergency Contact: Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility(“contact information”). Contact information shall be updated within seven (7) days of any change
- Petaluma, California– Elements of Petaluma Ordinance
- 500 ft setback from residencies
- Any ground-mounted equipment that cannot be installed in a pole must be underground
- San Anselmo, California-Elements of San Anselmo Ordinance Sept 28, 2018
- Community Meeting: Applicant to file a community meeting prior to submitting application
- Notification of residents: Property owners within 300 feet of the proposed cell tower must be notified of the public hearing with copy of photo simulations and RF compliance report
- Applicant Fees: Applicant responsible for any fees for independent city consultant examining the application
- Citizen Appeal: Citizens may appeal decisions made
- Indemnification clause
- Performance bond clause
- Preference clause for location with most preferred to least preferred
- Sebastopol, California- Elements of Sebasopol CityOrdinance
- No speculative facilities
- No telecommunications facility shall be installed on an exposed ridgeline, in or at a location readily visible from a public trail, public park or other outdoor recreation area
- Telecommunications towers shall be set back at least 20 percent of the tower height from all property lines and at least 100 feet from any public trail, park, Laguna buffer setback, or property line.
- Order of Preference – Configurations
- Order of Preference – Location
- No telecommunications facility shall be sited such that its presence threatens the health or safety of migratory birds
- No telecommunications facility or related improvements including but not limited to access roads and power lines shall be sited so as to create a significant threat to the health or survival of rare, threatened or endangered plant or animal species
- No telecommunications facility or related improvements shall be sited such that their construction will damage an archaeological site or have an adverse effect on the historic character of a historic feature or site
- Telecommunications facility shall not be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health
- Each pole mounted wireless telecommunications facility must be separated by at least 1,500 feet
- Americans with Disabilities Act Compliance
- The facility is located at least 75 feet away from any residential dwelling unit
- The facility is no closer than 20 feet to any property line;
- Sonoma City, California– elements of Sonoma City Ordinance– Nov 5, 2018
- Conditional Use Permit Required of All Cell Towers: All wireless facilities including Small Cells are subject to a use permit by the planning commission(other than co-location)
- Least Intrusive Site: Location in the least intrusive area
- RF Exposure compliance report
- Notice to all property owners within 500 feet of proposed wireless facility
- 1500 Foot Separation of Small Cells: Pole mounted WTF are no less than 1500 feet apart
- Residential Ban on Small Cells: No WTF permitted in a residential district
- Noise Restrictions: Report analyzing acoustic levels
- Suisun, California – Elements of Suisun City Ordinance April 2, 2019 https://www.suisun.com/small-cells/
- 1,500 feet minimum between each Small Cell facility
- 500 Foot Buffer from Residence: No Small Cell shall be within 500 feet of any residence.
- Annual inspections and reporting
- Compliance with ADA: All facilities permitted pursuant to this chapter shall comply with the American with Disabilities Act.
- Owner Consent: The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property
- The City at all times reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the sites
- RF Exposure Compliance: The permittee or its representative must conduct on-site post installation RF emissions testing to demonstrate actual compliance with the FCC Office of Engineering and Technology Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors.
- Attorney’s Fees: The permittee shall be required to pay any and all costs of such legal action
The Town of Hempstead passed a protective ordinance in 2013 which
- Requires a special use permit for cell towers that gives preferential placement of cell towers in historically sensitive areas around residences, schools, houses of worship, day-care centers that goes in preferential order from existing towers to industrial areas to non residential use (other) to business to residential property as the least desirable.
- The special use permit includes a “balloon test” whereby a brightly colored ballon is placed at the height of the tower to identify visual intrusion
- Limited the height of towers to below which lighting was required
- Allows the town to hire consultants and do inspections
- Set a fee schedule of $500 per pole
- Requires a 4 foot warning sign on the pole
Montgomery County Maryland has examined this issue with a study of RF radiation levels from small cells and found that FCC exposure levels were exceeded within 11 feet of the cell tower. In a Nov 6, 2018 memo Montgomery County has indicated that, along with 40 other jurisdictions, it plans to sue the FCC for violation of radio frequency levels.
Fairfax, California adopted an emergency wireless facilities ordinance that kept the current 1996 Telecommunications Act requirements, not those of the FCC and listed order of preference for all new cell tower installations. Fairfax is also looking at fiberoptic alternatives to wireless small cell installations. At a Sept 25, 2018 meeting San Anselmo councilman Matt Brown stated “I don’t know what the safety gap is to avoid full-on war, but this is the beginning of a revolution and I wouldn’t mind taking the leadership role to defy the industry,” California Town Looks for Alternatives to Small Cell Installations Oct 5, 2018.
Portland, Oregon Citizens Highlight 5G Privacy Issues and Need for Muni Broadband-
The City of Portland, Oregon is one of the cities to file a lawsuit against the FCC for overreach in their FCC 18-111 Ruling for Small cell siting. They held a city council meeting 2/13/19 discussing an emergency ordinance for small cell wireless facilities policy after being approached by AT&T to place multiple antennas in the city. Members of the community speaking at the council meeting highlighted that cities across the nation are at a crossroads. They can either have telecommunications by corporate ownership and control or by community control with municipal publicly owned and operated broadband for and by Oregonians. This would solve the equity issue as well as the health and privacy concerns. This is also a sovereignty issue and a property issue. They oppose this technology as it is not just a tool to improve peoples lives. In the manner proposed they note it is a tool for corporations. They note that the $200,000 offered to the city for digital inclusion is less than what AT&T extracts from the local economy every day. They also noted that $600,000 was given by AT&T to Trumps attorney Michael Cohen to push 5G. Citizens stated it is not an emergency to place an ordinance for untested 5G technology.
Dr. Martin Pall also testified at this meeting. He pointed out that biological effects occur at 7 million times lower than current safety guidelines allow. Pulsed EMF’s are much more damaging than non-pulsed EMF’s. The city should study the effects of 5G if they are placed in the city as there has not been independent safety testing.
Another resident, Kay O’neill, highlighted the surveillance and privacy issues of 5G. She noted Motherboard has documented that telecommunications companies like AT&T track sell our data and wish to further expand the dragnet to collect even more data on customers including from home browsing networks. Motherboard investigated a plethora of geolocation companies from car salesmen, property manager to bales bondsmen. This spy capability is also re-sold to others on the black market who are not licensed and seemingly without the knowledge of the telecommunications company or the consent of the person whose data is being collected. The increased ease of access with 5G dramatically increases the risk of abuse of sensitive personal information. Motherboard found that an individual company made more than 18,000 individual data requests though a single data broker. More than an oversight, it is argued that this is willful disregard for the safety and security of citizens.
Portland Oregon City Council Meeting Feb 13, 2109. To hear the testimony go here.
Marin County Residents Fight Small Cell Ordinance
The Marin County Board of Supervisors meeting Feb 14, 2019 was filled with citizens opposing permits for 5G small cell wireless but supporting fiberoptic broadband solutions. It was noted that Marin County also joined a lawsuit against the FCC for overreach and it is now at the ninth circuit court awaiting judgement which may not occur before 2020. Video of the meeting can be found here. Supervisors hear 5G concerns. Teresa Matthew. Point Reyes Light. Feb 14, 2019. https://www.ptreyeslight.com/article/supervisors-hear-5g-concerns
Key Aspects of Ordinances That Maintain Some Local Control
Several different urgency ordinances passed in California including Sonoma City, Palo Verdes, Glendora and Belvedere include several provisions that help cities protect themselves regarding issues such as liability, requirement for significant gap in coverage, comply with Americans for Disability Act, no transference of permit, allowance for independent expert and presence for location to be required. They have taken the opportunity to craft emergency ordinances that reflect the current law with regards to siting of wireless communications facilities including small cells, maintaining as much control and oversight as possible until April. Here are additions in adopted ordinances that would be important.
San Anselmo has an introduction paragraph which states the intent and purpose of their ordinance as follows and states their right to protect the town’s visual character:
PURPOSE AND INTENT
(A) In accordance with San Anselmo Municipal Code (“SAMC”) Title 10, Chapter 3, Article 28, the Town of San Anselmo intends this Town Council Policy No. 6-1 Part 1 (“Part 1”) to establish reasonable, uniform and comprehensive standards and procedures for wireless facilities deployment, construction, installation, collocation, modification, operation, relocation and removal within the Town’s territorial boundaries, consistent with and to the extent permitted under federal and California state law. The standards and procedures contained in this Part 1 are intended to, and should be applied to, protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the Town’s local values, which include without limitation the natural, residential and unique aesthetic character of the Town, its neighborhoods and community. The purpose of the Policy is also to protect the citizens and visitors of San Anselmo from adverse health effects associated with exposure to non- ionizing electromagnetic radiation that exceed maximum permissible exposure levels by raising public awareness and ensuring compliance with all applicable laws. This Part 1 is also intended to reflect and promote the community interest in public notice and an opportunity to be heard to (1) ensure that the balance between public and private interest is maintained on a case-by-case basis; (2) protect the Town’s visual character
from potential adverse impacts or visual blight created or exacerbated by telecommunications infrastructure; (3) protect and preserve the Town’s environmental resources; and (4) promote access to high-quality, advanced telecommunication services for the Town’s residents, businesses and visitors.
Key Elements of Strong Local Ordinances Revised 8/31/20 Key Ordinance Elements Update 8:31:20 PDF
Combination of ordinances passed and suggested
Please consult an attorney for questions
- FCC Clause: Have a clause voiding the agreement or requiring it modification in the event of a regulatory change (overturning the FCC Order), according to a report by Next Century Cities
- Conditional Use Permit: Maintain that all wireless facilities both small cells and cell towers require a Conditional Use Permit by the planning department followed by an encroachment permit. (remove Minor wireless permit section 18.41.050 and add all wireless communications facilities to section 18.41.060) which is reopened every 3 to 5 years- Sonoma City, California
- Significant Gap in coverage: Maintain requirement for significant gap in coverage to be identified for approval of both small cells and cell towers. Note: Telecom still needs to show this.
- Proof of NEPA Review: Provide information showing this installation has received any required review (e.g., environmental assessment and review) by the FCC pursuant to the National Environmental Policy Act (NEPA), or is exempt from such requirements. If exempt, please state what the basis is for the exemption and provide proof, including supporting documents that establish that this installation meets such exemption.
- Least Intrusive Methods: Maintain requirement for the least intrusive methods to fill the gap for both small cells and cell towers. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. Note:Telecom still needs to follow this. (Old-Palos Verdes)
- Americans with Disabilities Act (ADA) Compliance. All facilities shall be in compliance with the Americans with Disabilities Act (ADA). (New Palos Verdes)
- 1500 Foot Setback from other small cell installations: Every effort shall be made to locate small cell installations no less than 1500 feet away from the Permittee’s or any Lessee’s nearest other small cell installation, or within ______ feet of any permanent residential dwelling. (ART Ordinance) Setbacks Between Small Cells:Calabasas, Petaluma, Fairfax, Mill Valley, and San Ramon (all California) require 1,500 feet between SCFs. (Boulder, CO Recommendation-Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report). (Los Altos Ordinance)
- Setback From Roads or Property Lines: No new tower shall be constructed without a setback from the tower’s base of at least 1.5 times the tower height to a public or private road and at least 2.5 times the tower height to the nearest property line. Scenic America Model
- Setbacks from Schools: 500-1500 foot setback from schools. Palo Alto Unified School District Cell Tower Policy Palo Alto 300 foot setback
- 500 (to 1500)Meter setback recommended around schools, hospitals and homes.The setback for Calabasas, CA is 1,000 feet (Bolder, CO Report), 500 ft Setback from residencies (Petaluma). Engineering Article -“Limiting liability with positioning to minimize negative health effects of cellular phone towers.” (2019) Pearce M. Environmental Research, Nov 2019; https://www.sciencedirect.com/science/article/abs/pii/S0013935119306425
- Location – Disfavored or Favored Locations
- Preferred or Disfavored Locations: In addition to residential areas, designate areas where cell towers are disfavored and not permitted, i.e. near schools, residential areas, city buildings, sensitive habitats, on ridge lines, public parks, Historic Overlay Districts, in open spaces or where they are favoredi.e. commercial zoning areas, industrial zoning areas. (Boulder, CO Report Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report). (Los Altos Ordinance)
- Disfavored Location:Every effort should be made to avoid placement of small cell installations in close proximity to residences, particularly from sleeping and living areas. Viable and defendable setbacks will vary based on zoning. (ART ordinance) (Los Altos Ordinance)
- Prohibited Zones for Small Cells: Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts (Mill Valley) (Los Altos Ordinance)
- Drip line of tree/heritage trees: No facility shall be permitted to be installed in the drip line of any tree in the right-of-way…. (Old-Palos Verdes)- 15ft in Los Altos (Los Altos Ordinance)
- Order of Preference – Location: The order of preference for the location of small cell installations in the Town, from most preferred to least preferred, is:1. Industrial zone
2. Commercial zone
3. Mixed commercial and residential zone 4. Residential zone (ART Ordinance and New Palos Verdes). (Los Altos Ordinance)
- Fall Zone:The proposed small cell installation shall have an adequate fall zone to minimize the possibility of damage or injury resulting from pole collapse or failure, ice fall or debris fall, and to avoid or minimize all other impacts upon adjoining property
- Require Mock-up: Require full-size mock-up of proposed SCFs and other pertinent information in order to adequately consider the same potential impacts. It also may want to adopt Larkspur’s approach to require construction drawings, a site survey, and photo simulations. (Boulder, CO Report )
- Notification of Property Owners:
- Public notifications of planning commission hearings; Either in newspaper, website no less than 14 days prior to the date of the hearing.
- Notification of all property owners within 500 feet of the proposed installation within X timeframe
- Speculative Equipment Prohibited. The city finds that the practice of “pre- approving” wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public’s best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility (Old-Palos Verdes)
- Transfer of Permit: The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section 12.18.080(B)(5). (Palos Verdes)
- Authorization from Property Owner: If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner’s property. (Palos Verdes)
- Community Meeting: The applicant would be required to hold a community meeting at least two weeks prior to the planning commission hearing on the use permit. (San Anselmo)
- Noise Complaints: If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective. (Old- Palos Verdes)
- Noise Restrictions: Each wireless telecommunications facility and wireless telecommunications collocation facility shall be operated in such a manner so as to minimize any possible disruption caused by noise.
- Backup generators shall only be operated during periods of power outages, and shall nor be tested on weekends or holidays, or between the hours of 5:00 p.m. and 7:00 a.m.
- At no time shall any facility be permitted to exceed 45 DBA and the noise levels specified in Municipal Code XXX. (Los Altos Ordinance)
- Insurance: Pollution Exclusion Clause – In order to protect the city from liability (and bankruptcy) from harm to humans or the environment cities have a legitimate right to require proper health protective insurance on their master license or emergency ordinance. Without proper city insurance that does not have a pollution exclusion cities can be sued for damages by individuals. All of the major insurance companies including Lloyds of London since 2011 exclude RF radiation or electromagnetic frequencies from coverage- it is an exclusion. There are a few companies who can cover pollution liability and this should be required. Scarsdale, New York has apparently included a provision in their ordinance to require pollution free exclusion in their policies. Cities also have the right to regulate the operation of the WTF facility.
- Note: The risk manager for the city needs to require a copyof the insurance policy from both the operator and installer of the telecom equipment that includes the Board of Directors and Assets of the Corporationto be clear about which entity you are signing the agreement with. Telecom companies can offer indemnity insurance from another entity which can potentially be a shell company with few or no assets and thus leave cities bare with regards to insurance coverage or adequate defense of a lawsuit. After signing the master license agreement the telecom company requesting the permit would be required to produce the certificate of liability along with the actual policy and insurance clause that shows coverage without a pollution exclusion. A one page list of the certificate of liability is not enough to protect a city. Careful scrutiny and legal input is necessary in reviewing insurance.See Interplay of Insurance, Indemnity and Limits of Liabilityby Safety National. https://www.safetynational.com/conferencechronicles/interplay-of-insurance-indemnity-and-limits-of-liability/“Pollutant” Exclusions in Property Insurance Policies, Part 3. June 19, 2014. https://www.propertyinsurancecoveragelaw.com/2014/06/articles/insurance/pollutant-exclusions-in-property-insurance-policies-part-3/
Electromagnetic Field Insurance Policy Exclusion Are the Standard– Includes names of insurance companies who do cover pollution liability. https://ecfsapi.fcc.gov/file/10906001218058/Electromagnetic%20Field%20Insurance%20Policy%20Exclusions.pdf
- General Liability Insurance $ 2-5 million without a pollution exclusion clauseto protect the City: The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of commercial general liability insurance, with minimum limits of Two Million Dollars ($2,000,000)for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage without a pollution exclusion. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best’s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium…
- Endangerment, Interference: No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location.
- Annual Recertification: Each year, commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the Town an affidavit which shall list all active small cell wireless installations it owns within the Town by location, certifying that (1) each active small cell installation is covered by liability insurance in the amount of $2,000,000 per installation, naming the Town as additional insured; and (2) each active installation has been inspected for safety and found to be in sound working condition and in compliance with all federal safety regulations concerning RF exposure limits. (ART Ordinance)
- Radiofrequency Testing and Monitoring
- Radiofrequency: RF Compliance Report and RF Data Request Sheet (Attachment A): Require all applicants to submit an RF Compliance Reportsigned by a registered Professional Engineer, together with a completed form RF Data Request Sheet (Attachment A)that provides technical information sufficient for power density verification. The RF Compliance Reportshould provide power density calculations in microwatts per centimeter squared (uW/cm2) as well as percent of FCC standard; and power density calculations should be provided in tabular form showing power density at 10’ increments out to a distance of 1000 feet at ground level (6’) and to second-story building level (16’). Attachment A – RF Data Request Sheet
- Independent Expert: The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: xxxx (Old- Palos Verdes)
- Random Testing for RF Compliance: The Town shall have the right to employ a qualified RF engineer to conduct an annual random and unannounced test of the Permittee’s small cell wireless installations located within the Town to certify their compliance with all FCC radio-frequency emission limits as they pertain to exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee. (ART Ordinance)
- Violation of Compliance Notification: In the event that such independent tests reveal that any small cell installation or installations owned or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess of FCC exposure guidelines as they pertain to the general public, the Town shall notify the Permittee and all residents living within 1500 feet of the small cell installation(s) of the violation, and the Permittee shall have forty-eight (48) hours to bring the small cell installation(s) into compliance. Failure to bring the small cell installation(s) into compliance shall result in the forfeiture of all or part of the Compliance Bond, and the Town shall have the right to require the removal of such installation(s), as the Town in its sole discretion may determine is in the public interest. (ART Ordinance)
- Non- acceptance of Applications: Where such annual re-certification has not been properly or timely submitted, or equipment no longer in use has not been removed within the required 30-day period, no further applications for small cell wireless installations will be accepted by the Town until such time as the annual re-certification has been submitted and all fees and fines paid. (ART ordinance)
- Aesthetics and Undergrounding:All equipment not to be installed on or inside the pole must be located underground, flush to the ground, within three (3) feet of the utility pole. Each installation is to have its own dedicated power source to be installed and metered separately.
- Aesthetic Requirements: “Law firm Baller Stokes & Lide highlighted the following aesthetic considerations that local governments can consider: “Size of antennas, equipment boxes, and cabling;
- Painting of attachments to match mounting structures;
- Use of shrouds, stealth techniques, or other camouflage;
- Flush-mounting of antennas;
- Placement of equipment in the pole base rather than on the outside of the pole;
- Consistency with the character of historic neighborhoods;
- Minimum spacing between attachments;” and
- Aesthetic standards for residential neighborhoods, including “any minimum setback from dwellings, parks, or playgrounds and minimum setback from dwellings, parks, or playgrounds; maximum structure heights; or limitations on the use of small, decorative structures as mounting locations.” (Boulder, CO Report)
See Also: EHTrust Insurance Companies with Pollution Exclusions at https://ehtrust.org/key-issues/cell-phoneswireless/telecom-insurance-companies-warn-liability-risk-go-key-issues/
See Also: Swiss RE Insurance Company SONAR 2019 Report-New Emerging Risk Insights for insurance company. It lists 5G as a emerging financial threat. https://www.swissre.com/institute/research/sonar/sonar2019.html
“The top five emerging risks in our SONAR 2019 report are digital technology’s clash with legacy hardware, potential threats from the spread of 5G mobile networks, increasingly limited fiscal and monetary flexibility by central banks, genetic testing’s implications on life insurers, and the impact of climate change on the life and health sector.”
See Also: Swiss Re Article Off the Leash – 5G which highlights Cyber Security Risks as well. “Other concerns are focused on cyber exposures, which increase with the wider scope of 5G wireless attack surfaces. Traditionally IoT devices have poor security features. Moreover, hackers can also exploit 5G speed and volume, meaning that more data can be stolen much quicker.” https://www.swissre.com/institute/research/sonar/sonar2019/SONAR2019-off-the-leash.html
NOTE: The Small Cell Antenna Are the Same Antennas as on the Macro Towers
At a Sonoma Planning Commission meeting September 12, 2019, Lee Afflerbach, a consultant from Columbia Telecommunications Corporation was explaining the difference between the radiation from a small cell tower versus a macro tower to the planning commission. He states in the video at time 3:10:24, “To get around the capacity issue — it’s because so many people are [wirelessly] streaming video and other services like that, they [Verizon] have to have multiple sources for this. That’s why we have the smaller cells because each [small] cell is capable of almost putting out the same energy as one macro cell.” Another commissioner asked the question below. The answer at time 3:13:22 is below.
Q: “Is the higher frequency 4G always deployed by small cell or is it deployed by typical macro tower?”
A: Mr. Afflerbach answered, “Typically the older Macro cells are being reconfigured to add the new spectrum and are being filled in with this technology…one of the things the industry is doing is beefing up 4G…I have reviewed, my staff has probably reviewed several hundred of these small cells the last year, year and a half, and they are all 4G equivalent. The radios that they are using are the exact same radios that are up on the macro towers. It’s not a different technology…the same boxes as on macro towers. I see them all the time.”
The small cell towers are not a different technology, or for regular cell phone service, but for streaming videos, and at the same power as regular macro towers but much closer proximity to people. However, instead of 100 feet in the air on a macro tower, these”small cells” can be just several feet from a bedroom window.
Lawsuit by Santa Fe Alliance for Public Health and Safety
A lawsuit was filed December 21, 2018 by the Santa Fe Alliance for Public Health and Safety against the City of Santa Fe and the US Government for harms from RF radiation and proposed 5G installations. The complaint thoroughly documents not only the adverse effects of this type of radiation but also includes cases of illness and hardship of prominent members of the Santa Fe community due to cell towers. The lawsuit discusses violations of due process as well as constitutional violations.
Small Cells Exceed FCC Limits for RF in Close Proximity
A study by a professional engineering company, CTC Technology and Energy, calculated the RF transmitting power levels and distance from small cells to determine if the FCC exposure threshold would be exceeded. Their analysis revealed that “a hypothetical deployment of 3 carriers at a robust power level, in order to comply with FCC/FDA power limits, the antenna site should not be placed closer than 11 feet from a dwelling.“ The study indicates that warning signs or fencing would need to be placed around the antenna pole as FCC limits would be exceeded on residents property.
Small Cell Wireless Facilities will have 3G and 4G Technology
As noted in the FCC’s “5G FAST Plan” the radiation from the small cells installed will be 3G and 4G frequencies until at least 2020, as 5G technology is still in the planning and pilot stages. Verizon stated that 62% of wireless deployments in 2017 were Small Cells. 5G short millimeter waves require very expensive delicate equipment to obtain measurements and it will be difficult for residents to identify exposures. In addition, these “Small Cells” are located less than 50 feet from the ground. Who will provide accurate monitoring for these cell towers? The Telecommunications Act does not require or have the resources to monitor exposure levels once a cell tower is in place. In 2014 engineers looked at 5,000 cell sites and found that 1 in 10 violated FCC rules.
Proposed 5G Ordinance Causes Withdrawal of Application
Burlington Massachusetts: Verizon Withdraws Small Cell Applications to Avoid Annual Recertification Fee, Oct 2018
After officials in Burlington Massachusetts questioned Verizon about the need for and monitoring of proposed small cells, it became evident that there were looming unanswered questions and many concerns, including health. To remedy this, town officials formed a committee and discussed a new policy that would not only require poles meeting ADA standards and not interfere with other pole equipment, but there would be an annual recertification to measure EMF and other aspects of the cell antenna safety along with an annual recertification fee as a condition of approval. Verizon attorney Mr. Klasnick stated “My client respectfully requests to withdraw the petition rather than have a fee,” he said.
Burlington Massachusetts Board Recommendations for Small Cell Towers
- No apparatus on double poles
- An agreement to annual recertification with annual fee
- Equipment shall be located on top of the poles, colored similarly to the poles so as to blend in.
- Equipment shall not interfere with other equipment on the pole, nor obstruct or interfere with access to or operation of street lights or traffic controls devices on the pole.
- Poles must meet ADA standards
Verizon Drops Small Cell Wireless Booster Application in Face of Fees. http://www.bcattv.org/bnews/top-stories/verizon-drops-small-cell-wireless-booster-application-in-face-of-fees/
Burlington Cable Access Television– Other shows on Small Cell Wireless Technology . http://www.bcattv.org/searchresults/SearchForm?Search=small+cell+wireless&action_results=SEARCH
Reinventing Wires: The Future of Landlines and Networks
An important roadmap for cities called Re-Inventing Wires: The Future of Landlines and Networks, from the National Institute for Science, Law and Public Policy in Washington D.C., highlights both the many problems from wireless expansion and the benefits of wired and fiberoptic connections.
Tools for Cities and Citizens
Tools Cities and Citizens Can Use to Preserve Wireless Facilities Control
- Boulder Colorado Has Expert Legal Opinion to Maintain Local Control of Small Cell Towers by Attorney Grant Wilson. Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report
- 5G Danish Report-Legal Opinion whether it would be in contravention of
human rights and environmental law to establish the 5G-system in Denmark. 2019. 5G Danish legal opinion Jensen 2019
- New FCC Shot Clocks and Other Rules Preempting Local Authority Over Wireless Take Effect Today. Jan 14, 2019. Best, Best and Krieger Attorneys at Law
- Reinventing Wires: The Future of Landlines and Networks An important roadmap for cities called Re-Inventing Wires: The Future of Landlines and Networks, from the National Institute for Science, Law and Public Policy in Washington D.C., highlights both the many problems from wireless expansion and the benefits of wired and fiberoptic connections.
- Letter Harry Lehmann with suggestions to Proceed with Small Cell Moratorium based on Constitutional Law. Lehmann letter-Feb 21, 2019 to Marin Supervisors
- Issues of Local Control and Wireless Telecommunication Facilities . Thursday, May 3, 2018. https://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Library/2018/Spring-Conference-2018/5-2018-Spring;-Karish-May-Issues-of-Local-Control.aspx
- Cell Tower Zoning and Placement: Navigating Recent FCC Changes 2015. Legal Rights. Cell Tower Zoning: Navigating Recent FCC Changes, National Business Institute Teleconference
- 10 Key Issues for California Cities. Omar Masry. Medium. 10 Key Issues for California Cities and Counties on the Challenges of Small Cells
- League of Cities Legal Perspective on Telecommunications Law Wireless Antenna Update: Distributed Antenna Systems State and Federal Mandatory Collocation; New Regulatory and Legal Challenges
- Wireless in the Rights of Way and on Private Property. BBK.Law June 2017 Presentation. Wireless in the Rights of Public Way
- Local Authority Over Wireless Facilities in Public Rights-of-Way. April 2018.
BBK Legal Letter to Sandi Maurer April 24, 2018
- Cell Towers-Wireless Convenience or Environmental Hazard? (2000) Blake Levitt. She notes that Diane Feinstein did attempt to revise the 1996 Telecommunications Act.
- Biological effects from exposure to electromagnetic radiation emitted by cell tower base stations and other antenna arrays. (2010) Page 374- Biological Effects at Low intensity) Blake Levitt, Henry Lai. Environmental Reviews, 2010, 18(NA): 369-395. http://www.nrcresearchpress.com/doi/full/10.1139/A10-018#.WYUlOHeZNo4
Year in Review 2018
Year in Review -Electromagnetic Radiation Safety Year In Review-SaferEMR
Year in Review Bruce Kushnick Year in Review: America’s Communications Mired in a Toxic Swamp
News Articles 5G
- Cities prepare for 5G small-cell wireless, amid worries about local control and tight timelines. Dec 1, 2018. MLT News. Mount LakeTerrace. https://mltnews.com/cities-prepare-for-5g-small-cell-wireless-amid-worries-about-local-control-and-tight-timelines/
- County To Sue FCC Over Radio Frequency Emission Standards for Small Cell Antennas. Nov 15, 2018. Bethesda Magazine. https://bethesdamagazine.com/bethesda-beat/government/county-to-sue-fcc-over-radio-frequency-emission-standards-for-small-cell-antennas/
- More than a dozen cities are challenging the FCC over how to deploy 5G cell sites.Oct 25, 2018. Washington Post. Brian Fung and Kathrine Shaver. https://www.washingtonpost.com/technology/2018/10/25/cities-are-challenging-fcc-with-court-fight-over-cell-sites/?utm_term=.d0c0413ff6c1
- Mill Valley Council Adopts Wireless Telecommunications Facilities Ordinance and Protects Community. Sept 9, 2018. https://marinpost.org/blog/2018/9/9/mill-valley-council-adopts-wireless-telecommunications-facility-ordinance-protects-community
- 5G WIRELESS PITS CITIES AGAINST TELECOMS AND THEIR FRIENDS IN THE FCC: Local governments and residents fight to retain control over millions of new small cells. Allan Holmes. March 3, 2018. https://publicintegrity.org/business/5g-wireless-pits-cities-against-telecoms-and-their-friends-in-the-fcc/
- FCC Reveals the “Facilitate America’s Superiority in 5G Technology Plan” or “The 5G Fast Plan” https://www.fcc.gov/5G
- Verizon Backs out of Small Cell Permit to Avoid Recertification Fee. Burlington, Massachusetts. BCAT. Richard Gosford. October, 2018. http://www.bcattv.org/bnews/top-stories/verizon-drops-small-cell-wireless-booster-application-in-face-of-fees/
- Los Angeles 5G service rolls out — but not without controversy. Sam Dean. LA Times. Oct 6, 2018. http://www.latimes.com/business/technology/la-fi-tn-5g-fcc-rollout-20181006-story.html
- Michigan House Moves 5G Regulations. Oct 5, 2018. Connected Tech. https://mitechnews.com/connected-tech/michigan-house-panel-moves-5g-regulations/
- Major U.S. cities revolt against FCC’s proposed small cell deployment rules. Fierce Wireless Sept 21, 2018. Mike Dano https://www.fiercewireless.com/wireless/major-u-s-cities-revolt-against-fcc-s-proposed-small-cell-deployment-rules
- The Battle of 5G: The newest internet technology has a diverse cast of characters hoping to control it. Governing the States and Localities. Sept 18, 2018. Mike Maciag. http://www.governing.com/topics/transportation-infrastructure/gov-fcc-5g-vote-internet-broadband-cities-states.html
- Public Knowledge, joined by Greenlining Institute, The Utility Reform Network (TURN), and the National Association of State Utility Consumer Advocates (NASUCA), filed a Petitioners Brief in US Court of Appeals, 9th Circuit to prevent loss of copper landlines. Public Knowledge. Sept 26, 2018. https://www.publicknowledge.org/press-release/public-knowledge-urges-court-not-to-hang-up-on-consumers-in-fcc-lawsuit
- Fairfax to study fiber-optic broadband amid protest against 5G. Marin Independent Journal. Oct 4, 2018. https://www.marinij.com/2018/10/04/fairfax-to-study-fiber-optic-broadband-amid-protest-against-5g/
- Petaluma sets cell phone tower policy to be voted on. July 27, 2018. https://www.petaluma360.com/news/8567587-181/petaluma-sets-cell-phone-tower
- New Bill Threatens City Authority on Small Cell Infrastructure. National league of Cities. Angelina Panettieri. July 25, 2018. https://citiesspeak.org/2018/07/25/new-bill-threatens-city-authority-on-small-cell-infrastructure/
- Mill Valley blocks faster, smaller cell phone towers over cancer fears. Michelle Robertson, SF Gate, Sep 11, 2018. Mill Valley Emergency Ordinance https://www.sfgate.com/local/article/mill-valley-5g-antenna-tower-cell-phone-block-13221925.php
- San Rafael residents take pre-emptive strike against 5G installations. Keri Brenner, Marin Independent Journal, Aug 21, 2018. https://www.marinij.com/2018/08/21/san-rafael-residents-take-pre-emptive-strike-against-5g-installations/
- Booneville- Cell tower ordinance read for first time at (Booneville) council meeting. Glenn Parrish, Boonville Democrat, Sep 5, 2018. http://www.boonevilledemocrat.com/news/20180905/cell-tower-ordinance-read-for-first-time-at-council-meeting
- Marin Voice: 5G could be coming to a telephone pole near you. Sept 14, 2018. https://www.marinij.com/2018/09/14/marin-voice-5g-could-be-coming-to-a-telephone-pole-near-you/
- San Mateo Citizens for a Safe Environment recently fought and stopped a cell tower. Here is their Change.org San Mateo Petition
- WORRIED ABOUT THE ROLLOUT OF 5G? NATIONAL LEAGUE OF CITIES URGES LOCAL LEADERS TO OPPOSE FEDERAL “SMALL CELL DEPLOYMENT ACT”. July 18, 2018. National League Of Cities: Angelina Panettieri, 202-626-3196. https://dailyclout.io/worried-about-the-rollout-of-5g-national-league-of-cities-urges-local-leaders-to-oppose-federal-small-cell-deployment-act/
FCC and Federal legislators Pushing Faster Deployment of 5G Small Cells in 2018
- FCC order to streamline small cell deployments looks to speed 5G. Sean Kinney, RCR Wireless News, Sep 5, 2018. https://www.rcrwireless.com/20180905/policy/fcc-order-to-streamline-small-cell-deployments-looks-to-speed-5g
Macro Towers Still Subject to Rules of the 1996 Telecommunications Act
Although The FCC has passed their “5G Fast Plan” and legislation has been passed to streamline deployment of small cells, most macro cell towers are still subject to the rules of the Telecommunications Act of 1996 thus cities can still include crucial information about providing proof of a significant gap in coverage, least intrusive methods and other key components of an ordinance for macro cells. Most wireless facilities permits for cities are now for “Small cells”.
Verizon millimeter waves travel 3,000 feet
Verizon CEO CEO Lowell McAdam, admits what Verizon told to the CA Legislature in 2017 was false. No line of sight needed. 5G travels up to 3,000 feet Densification equals profit.
This video points out that it appears line of sight is not needed for 5G. Could this be due to elevated power density? It is recommended that cities become aware of this information and update their Municipal Wireless Code to only allow Wireless Telecommunications Facilities (WTF) antenna in commercial and industrial zones- never in residential areas and establish a 2500 foot resident setback from any WTF antenna in residential zones. Also for information http://mystreetmychoice.com/
Older posts prior to Dec 30, 2018
Small Cell Tower Applications: Cities Writing Preemptive Ordinances
While cities still have limited protected zoning authority, federal laws are being proposed and have passed which broadly preempt local control i.e. proposed Senate Bill S.3157 The Streamline Small Cell Deployment Act and Senate Bill S.19 The Mobile Act Now which was signed into law in May 2018. Under the guise of empowering rural america and creating millions of jobs, The Mobile Act Now speeds permitting for “Small Cell”deployment and fastbacks “Smart City” Initiatives to widely expand IoT and wireless broadband such as in San Jose California. The problem is that the “small cells” are not so small and can comprise any frequency or mix of frequencies not just 4G or 5G.
Verizon Writing It’s Own “Model” Industry Ordinance for Cities
It appears the cell phone carriers are now writing their own city ordinances to expand their 5G cell towers. A resident of Massachusetts found this Verizon “Model ordinance” for cities to adopt. It seems on the surface innocuous however reading the fine print this ordinance limits money per pole cities can charge. There is still the issues of liability for adverse effects of EMF. Verizon Ordinanace Small cell MA Model Small Cell Ordinance 10-31-18
Environmental Health Trust found that the increase in risk and liability for EMF exposure from wireless equipment is admitted by the telecommunications companies to their investors. EHTrust Insurance Liability. Along with that “General Insurance Exclusions” are standard in most insurance policy contracts and now commonly add harm from electromagnetic fields from their equipment or service as an exclusion. Unfortunately cities do not require specific liability insurance for affects of long term EMF exposure.EHTrust liability exclusions for EMF
Citizens are Fighting Cell Tower Proposals
To fight back citizens are arming themselves with knowledge about cell towers, 5G, health and environmental issues related to telecommunications, the law, options to rewrite local wireless facilities ordinances and sharing this with local government officials as well as crowding city hall. My Street My Choice indicates that the 3 most effective strategies residents can use are
- California Public Records Act (CPRA), Government Code Section 6250 et seq., http://scientists4wiredtech.com/oakland/cpra-request/
- The number of people that show up at hearings/meetings is much more important than persuasive letters/reasons; it is much faster and less expensive to win the political battle than the legal battle.
- Stuff the public record in advance of any Planning Commission/City Council hearing; all decisions and appeals are based on what is in the written public record at this first hearing. It is recommended to start every major email with something like, “Will you please place this email/letter into the public record for the Verizon and Mobilitie Close Proximity Microwave Radiation Antenna – Wireless Telecommunications Facilities (CPMRA-WTFs) applications in (city name). Other information can be found at http://mystreetmychoice.com/press.html#guidelines http://scientists4wiredtech.com/petaluma/open-letter-to-the-city-council/ http://scientists4wiredtech.com/sonoma/
Petaluma City Council Meeting July 16, 2018 on Importance of Small Cell Ordinance Limits
Petaluma City Council Meeting July 16, 2018 discussing ordinance to limit 5G in residential areas of the city. Discussion of the importance and fine print details of an ordinance needed to protect cities and citizens from excessive numbers of small cell towers on every lamp post.
Co-location: One Cell Tower Antenna on a Utility Pole Becomes Many
A major problem about approving one or a group of cell antenna, is that once a cell tower is placed on a public utility pole or other structure it becomes, according to the 1996 Telecommunications Act, an “eligible facility’ structure and other antenna equipment can be added if it does not create a “substantial change”. This is a vague term and cities hesitate to deny collocation of antennas due to threat of lawsuit. In addition, other carriers can request to have their antennas on each pole and plea “discrimination” if their antenna are denied.
New City Rules: Stronger for Citizens or For Industry?
Although a few cities have proposed municipal code changes to streamline the process and make it easier for industry to place the cell towers, others such as Palos Verdes have chosen to strengthen theirs for increased public input. See Palos Verdes, California Wireless Technology Facilities Ordinance June 2017. Hempstead, Long Island has also led the way for other municipalities to regulate cell antenna and wireless telecommunications equipment in their city ordinance. Although it was not able to have specific setbacks from schools or homes, the law asks for significant proof from cellular service providers to establish the need for new cell towers (significant gap in coverage) and also ensures that approved wireless communications equipment is located in areas that minimize negative impacts on local communities by mandating a special use permit in residential neighborhoods (section 142.6).
States Approve Small Cell Streamlining. Unfortunately, 13 states have passed laws in 2017 that now allow for streamlining placement of “small cell” antenna throughout cities on public utility poles by removing local control, oversight and the amount a city can charge the telecommunications company to rent the public utility poles. 20 States in 2017 have been lobbied by the wireless industry to pass bills streamlining local permitting of 5G antenna. 13 States Have Passed Fast Tracking of Small Cell Antenna. California’s Governor Brown vetoed such an effort (SB649) in 2018 leaving the telecommunications industry to individually request permits for cell tower placement in local jurisdictions
Denying Applications: Significant Gap in Coverage Required
An issue of importance to be able to deny cell towers is a significant gap in coverage. Local governments may not regulate wireless facilities on the basis of environmental effects, may not unreasonably discriminate among providers of functionally equivalent services as per Section 332(c)(7) They can however deny applications in writing on the basis of traditional zoning principles, such as aesthetic impact or specific city zoning requirements in business districts and residential districts. Local municipalities may not prohibit or have the effect of prohibiting the provision of personal wireless services with a general ban but can deny cell antenna on the basis of “substantial evidence” that there is “No Significant Gap in Coverage” and if there is then the proposal must include the “Least Intrusive Means” of filling this gap. See Page 11-12 of Navigating Cell Tower Zoning
Is There a Gap in coverage? Find Out
Verizon states they cover 322 million and 98% of the population and over 2.4 million square miles. It appears on their website that in cities there is no gap in coverage. Have the companies done independent engineering assessments of the RF power and tested the gap? If not cities can do this.
How many registered cell towers are near you? You can go to Antenna Search.com Antenna Search to find out how many cell towers are registered or proposed in a radius of 4 miles from you.
Lack of Transparency, Monitoring or Consideration of Environmental or Health Concerns
Cell tower placement still suffers from a continued lack of transparency in terms of monitoring, power densities or frequencies allowed. There is also growing awareness of the potential long term health effects from close proximity to cell tower radiation. The Telecommunications Act of 1996 prohibits discussion of environmental concerns and some interpret this to mean health concerns as well in the placement of cell towers. This is despite growing awareness and scientific confirmation of the potential health effects from exposure to cell tower radiation and all radiofrequency wireless devices. Cities and citizens are questioning this provision by giving “substantial evidence” of health harm but judges can vary in their interpretation. According to Section 704 of the Telecommunications Act of 1996 environmental but not health impacts are mentioned, thus by law should be able to be discussed and argued as a reason to deny a cell tower.
SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.
(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the
following new paragraph:
`(7) PRESERVATION OF LOCAL ZONING AUTHORITY-
“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.” 1996 Telecommunications Act
Arguing Health Concerns
If a city or county does not wish to allow cell antenna placement they can argue aesthetics or gap coverage but it is commonly thought that there is no ability to argue health or environmental effects as a reason to reject a cell tower (Telecommunications Act of 1996). Some argue that environmental concerns not health concerns are the problem. In San Diego City planners in 2015 opposed the cell towers in residential neighborhoods not on health grounds. They denied these, stating “Cooper made a motion to deny the cell tower for reasons that included it is a commercial, industrial application in a residential area, is along a scenic highway, exceeds the county height limit and has potential to decrease property values.”
Substantial Evidence of Health Harm
There is Emerging and Historical “Substantial Evidence” of Health Harm from Wireless Radiation
The results of the recent 1) NTP study on cell phones and cancer, the 2) Ramazinni Institute study on long term exposure to low level microwave radiation and 3) Dr. Li’s prospective study at Kaiser on increased miscarriage with exposure to electromagnetic fields greatly strengthens the case for “substantial evidence” of harm. This adds to the growing body of science on broad adverse health and environmental effects from non thermal levels of radiation from wireless devices as well as cell towers. Blake Levitt’s article is a good read on the subject. Biological effects from exposure to electromagnetic radiation emitted by cell tower base stations and other antenna arrays. (2010) Levitt Article . The Bioinitiative Report has been updated and has an abundance of scientific research on RF EMR which has been summarized and is easy to understand.
Invisible Hazards: State of the Science CHE Webinar
More evidence of harm from wireless radiation comes from a May 9, 2018 CHE Webinar was sponsored by the Collaborative for Health and the Environment-Invisible Hazards: State of the Science on EMF Impacts and Steps for Policy Change. This featured Dr. Frank Barnes, Distinguished Professor in the Biomedical Group of the Department of Electrical, Computer, and Energy Engineering at the University of Colorado, Dr. De-Kun Li, Senior Research Scientist at the Division of Research, Kaiser Permanente Northern California and reproductive and perinatal epidemiologist and Dr. Joel Moskowitz, Director of the Center for Family and Community Health at the School of Public Health at UC Berkeley
Firefighters Get Legal Health Exemption
Firefighters Oppose Cell Towers on Grounds of Neurologic Health Effects
If there are no health effects why do firefighters get a health exemption under law? Health symptoms in those living near cell towers have been reported for years. In 2004 The International Association of Firefighters (IAFF) passed a resolution approved by over 80% of firefighters calling for a moratorium on placing cell towers on or adjacent to fire stations. They did this in response to a number of reports of headaches, dizziness, inability to concentrate, insomnia and other neurologic symptoms in their own firefighters when first responder cell towers were erected on their fire stations. They conducted their own pilot study in 2004 and found the firefighters studied had delayed reaction time, lack of impulse control, and difficulty in maintaining mental focus. The brain scans confirmed this and also controlled for other toxic exposures from fires. Letters in opposition to fire stations have been written by Union Leaders.
Firefighter Stations Have Been Given Legal Exemptions for Cell Towers: AB 57
AB57- Firefighters have gotten an exemption to have cell towers on or adjacent to their facilites.This was codified in California’s 2015 legislation AB57 . CA AB57 (2015) Legiscan Text of Bill. ” Section 65964.1. (f) Due to the unique duties and infrastructure requirements for the swift and effective deployment of firefighters, this section does not apply to a collocation or siting application for a wireless
telecommunications facility where the project is proposed for placement on fire department facilities. “
SB649- They also received an exemption in California’s SB649 (2018), a bill which was vetoed by Governor Brown. SB 649 California (2017) Wireless Telecommunications Facilities – 65964.2. “(a) A small cell shall be a permitted use subject only to a permitting process adopted by a city or county pursuant to subdivision (b) if it satisfies the following requirements: ….(3) The small cell is not located on a fire department facility.”
The International Association of Firefighters (IAFF) Policy includes the following:
WHEREAS, the brain is the first organ to be affected by RF radiation and symptoms manifest in a multitude of neurological conditions including migraine headaches, extreme fatigue, disorientation, slowed reaction time, vertigo, vital memory loss and attention deficit amidst life threatening emergencies; and
WHEREAS, most of the firefighters who are experiencing symptoms can attribute the onset to the first week(s) these towers/antennas were activated; and
WHEREAS, RF radiation is emitted by these cellular antennas and RF radiation can penetrate every living cell, including plants, animals and humans;
For the safety of the citizens whom they are responsible to protect the firefighters are asking for state exemptions from cell tower placement on their facilities. In California, SB649 (2018 ), that was to streamline placement of cell towers on utility poles, the firefighters asked for and received a health exemption. The proposed SB649 Section 65964.2 reads “(3) The small cell is not located on a fire department facility.” https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB649. The bill passed both the California House and the Senate but was vetoed by Governor Brown.
Keep Your Wired Landline!
Landlines are the safest and most reliable communications we have. Ethernet can work well for wired internet connections. Corded phones still work well with landlines and have much better voice quality than Voice Over Internet Protocol (VoIP) and landlines have provided wonderful communication for decades. Although possibly a bit slower, landlines are more private, more secure and without potential harm from constant electromagnetic radio frequency radiation, for those who wish to reduce their exposure. Landlines can be hooked to public or private fiberoptic for residents if that option for faster broadband is made available. See Muni Fiberoptic Broadband options at Broadband Expansion News
Saving Your Landline May Save Your Life: AT&T is Poised to Remove your Landline by 2020. Dr. Cindy Russell Saving Your Landline: It May Save Your Life SCCMA Article
First to 5G: Sacramento, California
Sacramento is first to 5G with 6 antenna already constructed and others under construction. Verizon is now asking households in Sacramento, as of August 2018, to put 5G routers in their homes as a “free trial”. Here are Verizon’s 2017 comments regarding Federal streamlining of wireless expansion. Los Angeles New York, Seattle and others are soon to follow.
Industry Challenges Cities
Verizon and other Cell phone companies have challenged cities who deny applications based on health or public safety, stating they have to supply substantial evidence.
- CBS Consumer Watch: 5G Cell Towers Signal Renewed Concerns Over Impacts on Health. January 2018
- Town of Union will go to court over cell phone tower.January 4, 2018
- Verizon Sues Wisconsin City Over denied Cell Tower Application. August 2016.
- A Pushback on Cell Towers. New York Times. 2010 A Pushback Against Cell Tower lists a variety of reasons including 4-10% lowering of property values.
- Verizon Defends Cell Phone Tower Lawsuit March 2016 . In Almena Township, Michigan city council members voted to deny cell towers and then was challenged by Verizon with a lawsuit and backed down, approving them all.
However, a European Parliamentary Resolution states that wireless radiation emissions should abide by the “as low as reasonable able” policy set forth in the 2011 European Parliament Resolution 1815: The potential dangers of electromagnetic fields and their effect on the environment. European Parliament 2011 Resolution 1815 For scientific information on cell tower health effects visit PST Cell Tower Health Effects
My Street My Choice
A Neighborhood Survival Guide
A new website has surfaced that has information on how to fight cell towers in your neighborhood. It is based in California. A Neighborhood Survial Guide: My Street My Choice http://mystreetmychoice.com My Street My Choice
Another recent website that may be useful is WirelessAction.wordpress.com- Let Your Voice Be Heard. Wireless Action
Citizens Fight Back and Oppose Cell Towers
Attorney Patrick Shannon testifying against a 16 tower planned installation in Hillsborough, California
Patrick Shannon, an attorney who lives in Hillsborough, challenges the Hillsborough City Council who approved a cell tower cluster in residential neighborhoods in January 2017 without providing notice to the Hillsborough Wireless Committee, a city watchdog group.
December 22, 2017, residents in Hillsborough, a wealthy San Francisco suburb, successfully fought a 16 cell tower installation in their residential neighborhoods on the grounds of improper public notice, no community meetings and no environmental review. Although the telecom company is expected to return with another proposal this was a thoughtful and researched approach to addressing cell towers in residential neighborhoods. Attorney Patrick Shannon who has lead the fight in Hillsborough, California highlights the need for reform in city governments to ensure proper review of cell towers. Hillsborough Homeowners Push Back Against Cell Towers
Mr. Shannon argues that cell towers should not be allowed as they:
- Reduce property values, thus life savings for residents
- Installing massive cell towers near homes and schools violates Hillsborough laws, rural character, local values, aesthetics, public right of way under state law and least intrusive means under federal law.
- Does not preserve rural character of the town
- Violates location standards as according to Hillsborough city code the highest preference for placement is on public property and the lowest is in the public right of way.
- Is not the “least intrusive means” to close any alleged significant gap in coverage which is to colocate antennas on existing macro towers.
- Violates the municipal code to have under grounding rules. New development needs to be underground
- Violates design standards
- Violates height limit
- Violates camouflage code
- Inconsistent with setback rule that prohibits placement of any structure higher than 8 feet within 40 feet of a residence without homeowners approval
- Federal law allows unilateral extension of towers by 10 feet.
- This then sets a precedent for all other 26 national carriers to install the same number of towers and co-locate antennas.
Arguing Against Cell Tower Placement
Ordinances and Arguments to Deny Cell Towers
Ordinances and arguments cities and citizens have used as reasons to oppose cell towers include provisions about placement in residential or scenic areas. These include:
- Requirements for specific set backs from homes
- No commercial/ industrial application of towers in a residential zone
- Historic preservation considerations
- Placement along a scenic road
- Aesthetic requirements
- Excessive Noise Mini Cell Towers A Maxi Threat. Sept 2016
- Exceeds county height limit
- Least Intrusive method to achieve wireless coverage (Telecom Act 1996)
- Decrease in property values Greenwood Meadows NJ
- Monitoring requirements for radio frequency radiation levels
- Placement of cellular communication equipment that is only currently commercially available and specifically not for planned or future equipment
- Placement of accessory equipment underground
- Requirements and limits on power density radiation levels that can be broadcast from the equipment.
- Significant Gap in Coverage: On a Federal level significant gap needs to be shown to permit cell towers. Citizens can take their own measurements if done in a valid manner. See Santa Rosa Fights Cell Tower Placement.
- Use the”least intrusive means” to close any alleged significant gap in coverage, which is to co-locate antennas on existing macro towers.
Hempstead Town in Long Island- Setbacks from Homes, Schools
In Hempstead Town an ordinance was passed which states that no new cell towers or antennae shall be located closer than 1500 feet to a residential home, house of worship, day care center or school. Town of Hempstead Ordinance
Bar Harbor, Maine- 1500 foot Setbacks from Schools
Residents in Bar Harbor Maine approved a change in zoning laws that increased the cell tower setback distance from 500 feet to 1500 foot from schools in 2008. Bar Harbor Maine School Setback for Cell Towers. Nov 2008.
Mason, Ohio- Small Cell Facilities Zoning Restrictions
In Mason, Ohio, Chapter 1188.8 Cellular or Wireless Communications Systems in their city code states that:
- Every attempt shall be made to mount a small cell facility to an existing structure,
- A small cell facility shall not be located within a residential zoning district, a residential subdivision, or within 100 feet of a property that contains a residential use.
- No small cell facilities may be located within 2,000 linear feet from another small cell facility or cellular or wireless communication tower, unless such facility is co-located as defined in this chapter.
- All related equipment, including, but not limited to, electrical boxes, conduit, wiring, and mounting equipment shall be placed underground or be wholly contained within an enclosure so as not to be visible. Further, all electrical and communications connections shall run underground to the facility.
- Small cell facilities shall not exceed thirty (30) feet in height.
- Co-Location. Small cell facilities shall consist of not more than one small cell antenna per wireless communications user and shall be capable of providing the operation for two or more wireless communications service users.
- Footprint. Small cell facilities shall not exceed twenty-four (24) inches in diameter with the exception of the foundation, which said foundation shall not exceed six (6) inches above grade.
Appealing Cell Tower Sites
Palo Alto, California:
Citizens have become more aware of how to file and appeal cell towers. One has to look at the city application or call city hall to find out where to file an appeal. In Palo Alto, a plan to install 92 Antennas in 10 neighborhoods has been appealed. Palo Alto: Residents oppose Verizon’s plan to add 92 cell antennas in neighborhoods.
Unfortunately the Appeals by 7 parties were denied by the Palo Alto City Council May 22, 2018. The Council discussed the under grounding of equipment and aesthetics but not the need for Verizon to prove a significant gap in coverage, least intrusive methods to bridge that gap, health, privacy or environmental effects. Cities are generally not prepared for the amount of information they need to read and comprehend in a the short amount of time the Spectrum Act Shot Clock gives them. Industry has made it clear that lawsuits will follow if the letter of the law is not followed. Verizon Wins Approval of Antenna Plan in Palo Alto
Palo Alto is now facing the new FCC rules that take effect January 14, 2016 and include a 60 day shot clock approval (versus the old 150 day timeline) and less control over small cell tower placement and fees.
Appeal Letters to the City of Palo Alto
Palo Alto Cluster One Appeals
- Appeal — Ap-18-2: Herc Kwan, 2490 Louis Rd. (27 pages)
- Appeal — Ap-18-3: Francesca Kautz, 3324 South Court (8 pages)
- Appeal — AP-18-4: Christopher Lynn, 2802 Louis Rd. (5 pages)
- Appeal — AP-18-5: Jeanne Fleming, 2070 Webster St. (20 pages)
- Appeal — AP-18-6: RK Partharathy, 3409 Kenneth Dr. (12 pages)
- Appeal — AP-18-7: Russell Targ, 1010 Harriett St. (46 pages)
- Appeal — AP-18-8: Amrutha Kattamuri, 3189 Berryessa St. (126 pages)
No Significant Gap in Coverage
No significant gap in coverage could be found in any location where cell antenna were proposed in Palo Alto. This demonstrates a lack of need for the cell towers.
No Significant Gap in Coverage- Cluster One
Palo Alto, California: Proposed Cluster 1 cell towers: A “significant gap in coverage” is a stated reason to place cell towers however citizens are doing their own homework and showing substantial evidence of no significant gap in coverage using cellphones for that carrier listed at the locations targeted for cell towers.
No Significant Gap in Coverage- Cluster Two
Palo Alto, California: Proposed Cluster 2 cell towers: Substantial evidence of no significant gap in coverage. 5 bars on the phone seen at each location.
- While significant gap in coverage is preempted by federal law, Increasing capacity is not preempted by federal law and is the choice of cities and counties.
City of Palo Alto: 100 New Small Cell Antennas Proposed 2017: Federal laws referenced
Here is an Architectural Review Board staff review September 21, 2017 for the permit request for 100 new small cell applications for the City of Palo Alto. Palo alto opposed California’s SB649 to “streamline” applications for small cells which would remove local authority for cell tower placement. Unfortunately, a California law sets the rates utilities can charge for municipally owned utilities. Palo Alto is a Publicly Owned Utility.
Many cities in California are now actively fighting cell towers in residential and business areas- Hillsborough, Monterey and Nevada City to mention a few. Palo Alto Architectural Review Board Small Cell antenna 2017
Here is Palo Alto Ordinance 5340 on Wireless Communications Facilities Updated in 2015. Palo Alto City Code 18.42.110 Pertaining to the Siting and Permitting of Wireless Communications Facilities. https://www.cityofpaloalto.org/civicax/filebank/documents/49419
City of Palo Alto Ordinance Office of the Attorney clarifying Spectrum Act definitions. https://www.cityofpaloalto.org/civicax/filebank/documents/47046
Court Hearings in the Appeal of Cell Towers
Cell Tower Appeal Upheld in Pennsylvania: T-Mobile vs Richard W.Shoemaker
Commonwealth Court of Pennsylvania: Richard W. Schomaker vs ZONING HEARING BOARD OF the BOROUGH OF FRANKLIN PARK and T-Mobile. https://caselaw.findlaw.com/pa-commonwealth-court/1524870.html. Here the Judge favored the citizen’s right to maintain the legal ordinance setback for a tall cell tower. In this 2010 appeal regarding placement of a cell tower on private property, the judge reversed a prior ruling allowing the Zoning Board Hearing to permit a variance of the city ordinance for T-Mobile. The Borough of Frankin Park, Pennsylvania has an ordinance requiring a 200 foot setback of cell towers to adjacent property. As stated, this ordinance and not the variance was ultimately upheld in court.
Cell Tower Lawsuit Reversed in Palos Verdes, California
Here is a 2009 9th Circuit Court of Appeals decision on a lawsuit filed by Sprint vs City of Palos Verdes Estates after Palos Verdes denied a permit in a residential neighborhood. The court reversed the decision by the lower court and ruled in favor of Palos Verdes. Palos Verdes vs Sprint 2009
Ordinance on Cell Towers Palos Verdes
Here is the ordinance in Palo Verdes, California which has some specific provisions for placement of cell towers such as in residential areas, on new poles, or where their would be impairment of view. Palos Verdes Wireless Technology Facilities Ordinance June 2017
Austin and Dozens of Other Cities Sue Texas Over Law Streamlining Cell Towers
Texas passed a cell tower streamlining law in 2017 for widespread placement of small cell antenna on city utility poles, however, the City of Austin had concerns about the loss of millions of dollars of annual revenue, in addition to a loss of local control. Austin has sued the state of Texas. Bennett Sandlin, Executive Director for the Texas Municipal League stated stated “The problem is, the Texas constitution doesn’t allow rights of way to be given away. You have to compensate the taxpayers.”
As of November 2017 three dozen cities have sued the state of Texas over SB 1004, the cell tower fee-cap bill. It is argued that the bill does not compensate cities fairly and that the rental per pole should be more like $1500-$2500. Cities Sue Over Cellular Right-of-Way Cap Fees Athens Daily Review. Nov 16, 2017.
Timely Fashion Ruling for Cities to Deny Cell Tower Applications
In Georgia a Supreme Court Ruling in 2015 highlighted the need for cities to provide in a timely explanation for denial. Supreme Court Tells Cities to Explain a Cell Tower Denial in Timely Fashion.
Repeal of Section 704 of the 1996 Telecommunications Act?
Federal bills are being introduced to remove local authority Streamlining Small Cell Permits. Cities and counties can craft their own ordinances now to give more power and flexibility to local governments for cell tower siting. Legal assistance is important to assure there is no violation of the Telecommunication Act of 1996. Many feel section 704 needs to be repealed because it prevents discussion or consideration of health or environmental effects as a reason to deny antenna placement.
5G and Small Cell Information Fact Sheets for Printing
Environmental Health Trust has created information sheets on 5G and Small Cells that have valuable information and can be shared with policy makers, community leaders and others.
Cell Phone Towers Outside Your Window – Why You Don’t Have The Right To Fight
CBS news discussing a local fight in San Francisco in 2015 to prevent installation of a small cell tower in a neighborhood. A resident appealed the cell tower which would have been 10 feet from his window and won. This was only one of hundreds of permits that have been allowed.
Many Cities and Schools Now Fighting Cell Towers
Concord Regional School Committee rejects cell tower; debate continues in Concord Concord School Cell Tower Debate April 17, 2018
Danville Danville Residents Express Radiation Concerns Over Building of Small Cell Towers New rules are being proposed for Danville that “would exempt small cells from land use permit and the associated submittal requirements.” Danville Commission New Cell Tower Fast Tracking Permitting Rules Proposed
Hillsborough Hillsborough Residents fight Cell Towers
- My Street My Choice Monterey http://mystreetmychoice.com/monterey.html
- My Street My Choice Napa http://mystreetmychoice.com/napa.html
- My Street My Choice Palo Alto http://mystreetmychoice.com/paloalto.html
Petaluma- Municipal Code updated http://scientists4wiredtech.com/petaluma/#resolution.
Piedmont Cell Antenna Sites OK’d: No One’s Happy . Piedmont, an East Bay city, denied antennas for 5 of 8 cell antenna sites, stating that they were out of compliance with city standards, design guidelines, noise levels and the general plan. City of Piedmont, Council Meeting Oct 16, 2017. The city did approve some cell towers out of fear of being sued. Fear of Lawsuit Prompts Site ApprovalWith All Parties Unhappy.
Running Springs- Catholic Church and Retreat Center, Proliferation of Cell Towers Raises Concerns
- No Gap in coverage Sebastopol You Tube March 10, 2018
- My Street My Choice Sonoma http://mystreetmychoice.com/sonoma.html
- My Street My Choice Santa Rosa. http://mystreetmychoice.com/santarosa.html
Santa Rosa Citizens Fight Back at a City Council meeting January 30, 2018
Residents point out among other things, that there is no significant gap in coverage and showed a video near each proposed tower demonstrating full cell phone coverage. They argue more new cell towers are NOT needed. 5G is not yet developed and these will be 3G and 4G towers in residential areas adjacent to homes.
First to 5G: Sacramento Already with 6 Antennas and San Jose Smart City Initiative Close Behind
The First City to Have 5G- Questions Raised About 5G Health Risks Months Before Sacramento Launches Service. May 29, 2018. CBS Local. https://sacramento.cbslocal.com/2018/05/29/questions-raised-about-5g-health-risks-months-before-sacramento-launches-service The City of Sacramento partnered with Verizon to offer 5G. A spokesperson told CBS13 the City of Sacramento currently has six active 5G sites- all are on SMUD utility poles:
- 1731 E Street
- 1619 E Street
- 421 14TH Street
- 2330 Q Street
- 2019 21ST Street
- 801 16TH Street
Sacramento will soon initiate testing in residencies for 5G. Editor’s Corner—How the city of Sacramento got to 5G, and what it means for the rest of the U.S. April 2, 2018 FierceWireless. https://www.fiercewireless.com/tech/editor-s-corner-how-city-sacramento-got-to-5g-and-what-it-means-for-rest-u-s
How Smart is San Jose? Silicon Valley’s Biggest City Tries to Catch Up with the Digital Future. July 26, 2018. Metro Silicon Valley. Lauren Hepler. https://www.sanjoseinside.com/2018/07/26/how-smart-is-san-jose-silicon-valleys-biggest-city-tries-to-catch-up-with-the-digital-future/
San Jose Smart City Initiative: San Jose picks three companies to make street lights ‘smart,’ set groundwork for 5G. Silicon Valley Business Journal. June 15, 2018. https://www.bizjournals.com/sanjose/news/2018/06/15/san-jose-picks-three-companies-to-make-street.html
San Jose Smart City Vision. Offering Game changing technology and data-driven decision making. Office of Mayor Sam Liccardo. https://www.sanjoseca.gov/index.aspx?nid=5289
Federal Regulations Proposed
Below is a list of some of the regulations that come into play and important to understand. There are several new Federal laws proposed to fast track cell tower placement. Federal Streamlining Small Cell Antenna Laws 2017
The Telecommunciation Act of 1996.
The 1996 Telecommunications Act of 1996 has several clauses to consider. One prohibits any discussion of health or environmental harm in a public forum or for denial of a permit. It also discusses discrimination of carriers, the language of “significant gap in coverage” as a reason for approving a permit. Supplying written substantial evidence is important for cities who wish to deny a permit.Telecommunications Act 1996
The Spectrum Act of 2012
The Spectrum Act, is an added section of the Payroll Deduction Act and called the Middle Class Tax Relief and Job Creation Act of 2012,
This Act facilitates the telecommunications industry’s rapid deployment of wireless infrastructure by requiring local governments to approve any application by a carrier that asks to modify and existing cellular communication structure that does not “substantially change” the existing facility. Section 6409 states cities ““may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” (47 U.S.C. § 1455(a)(1).) Section 6409 defines “eligible facilities request” as “any request for modification of an existing wireless tower or base station that involves –
(a) collocation of new transmission equipment;
(b) removal of transmission equipment; or
(c) replacement of transmission equipment.”