Thousand Oaks Maintains that FCC Rules Leave Little Room for Public Oversight
THEY’RE COMING — The FCC is attempting to preempt local control over wireless equipment installations to support the rollout of new 5G technology, but these very regulations are being challenged by many Cities in the Ninth Circuit Federal Appeals Court because they are a massive Federal overreach into intrastate matters.
Applications from companies like Verizon, AT&T and T-Mobile to install so-called fifth generation, or 5G, wireless communication equipment in Thousand Oaks are expected, if this consolidated law suit from many US Cities is not granted its Motion for Stay of FCC Order 18-133.
City Attorney Noonan misrepresents basis of 9th Circuit Case
Mar 5, 2019: Thousand Oaks Wireless Telecommunications Facilities Urgency Ordinance
Also, if any of these applications for these Close Proximity Microwave Radiation Antennas (CPMRAs) are to be handled without public notice, hearings or appeals, then the City of Thousand Oaks is opening itself up to huge liabilities.
A misguided Urgency Ordinance, approved by the City Council at its March 5 meeting, is “not the only way” to meet new FCC rules — rules that are still being challenged in court and which may be dismissed in the future.
The 60-day or 90-day shotclocks are just one of several big changes, voted through by the FCC Republican majority last year, intended to speed the rollout of densified 4G and 5G infrastructure.
According to some, the technology uses smaller towers and needs many more of them. Thousand Oaks Community Development Director Mark Towne Towne said:
Because these facilities are smaller than your traditional macro sites, they have smaller radii—about 300 to 500 feet instead of miles,”
Verizon, however, admitted that for 5G at 28 GHz and 39 GHz, the company only needs a cell tower every 2,000 to 3,000 feet. In a 2018 marketing video (https://youtu.be/FwAsr1pC13Q), Verizon Wireless communicates that 5G can work effectively when 5G antennas are collocated high up on existing macro cell towers — which, of course, would be the least intrusive means to close any alleged "significant gap" in telecommunications coverage.
Lowell McAdam, Verizon CEO:
"When [Verizon] went out in these 11 [5G test] markets, we tested for well over a year, so we could see every part of foliage and every storm that went through. We have now busted the myth that [5G frequencies] have to be line-of-sight — they do not. We busted the myth that foliage will shut [5G] down . . . that does not happen. And the 200 feet from a home? We are now designing the network for over 2,000 feet from transmitter to receiver."
Jason L., Verizon Field Engineer:
"[Verizon 5G] is really high frequency [28,000 MHz and 39,000 MHz], so everybody thinks it doesn’t go very far, but it’s a really big pipe and so that’s what allows you to gain the super fast speeds . . We’re 3,000 feet away from our radio node. the cool thing about this is that we did not move the radio nod"
The draconian FCC rules are directing cities to process CPMRA applications for densified 4G or 5G infrastructure within two to three months, according to Community Development Director Mark Towne. Applications to install cell towers and other wireless equipment in Thousand Oaks currently take an average of eight or nine months, he said.
“Staff has looked at this very carefully, and our conclusion is it is not possible to meet those deadlines with our existing process.”
Anyone who accepts this argument by Mr Towne, however, is a fool because densified 4G and 5G infrastructure in neighborhoods is both unnecessary and dangerous.
The FCC’s September 2018 ruling, only became became partially effective Jan. 14 (shot clocks and fees). The rest of the ruling (for communtity-based aesthetics standards) may become effective on April 15 if the Motion of Stay is not granted before then.
In addition, while the regulations limit antennas to a maximum of 3 cubic feet in size, there’s no limit on the number of antennas at one streetlight or other structure.
Jonathan Kramer of Telecom Law, an industry supporter and spokesman who is, inexplicably, also acting as the city’s longtime wireless consultant, unsurprisingly provided this message of indoctrination at the council at the meeting:
“You’re looking at thousands of cell sites in Thousand Oaks over the next five years compared to what is effectively . . . a handful of 140 (right now). The build-out is going to happen."
Kramer said some industry engineers estimate each wireless provider will need about 60 towers per square mile to make 5G effective. Counting only Thousand Oaks’ residential area of about 40 square miles and using half the engineers’ number per square mile (30), the city’s four wireless carriers would require between 4,000 and 5,000 new cell sites, he said.
To illustrate why he believes such a deluge of site applications really will be coming, Kramer made an example of the city of El Monte which is just under 10 square miles. The Los Angeles County city received more than 70 applications for small cells in the less than six weeks following the FCC’s regulations change.
Limiting local authority
Current wireless applications via a planning commission public hearing for new installations . Under the new regulations, local agencies cannot put in place rules that have the effect of prohibiting wireless service, charge excessive processing fees and/or refuse to accept batched applications for multiple facilities. Key to this determination, according to long-standing Ninth Circuit case law is the definition of wireless service: the ability to make a call or text. The Ninth circuit, in its 2005 decision of MetroPCS vs. San Francisco defines the need for a Wireless carrier to prove that a "significant gap in coverage" actually exists and then directs the carrier to use the "least intrusive means" to close any proven significant gap in coverage.
FCC regulations do not have the authority to erase provisions of the 1996 Telecommunications Act nor erase Ninth Circuit Appellate court decisions. The questions that Thousand Oaks must answer is are there any significant gaps in coverage where these cell towers hope to be installed.
Since Jan. 14, the city hasn’t received any 5G applications, but staff members expect them to start rolling in soon, Kelvin Parker, deputy director of community development, told the Acorn. The city does have some pending non-5G applications that were submitted before the new regulations went into effect. Those will still be processed under previous regulations, while any new applications will go through the new process, i.e., administratively and without public review.
Councilmember Claudia Bill-de la Peña said.
“This is really kind of shocking for Thousand Oaks because we pride ourselves on public notification and listening to the residents . . . and all that is thrown out the window with these new requirements,”
The council voted 4-0 to adopt the urgency ordinance, with Councilmember Ed Jones absent.
The other reason the ordinance was urgent is that more new regulations are coming next month and having some aesthetic rules in place will help the city, Assistant Attorney Patrick Hehir said. The FCC allows cities to apply aesthetic requirements if they are reasonable, no more burdensome than those applied to other utilities and are objective and published by April 12.
“We want to avoid unnecessary blight,” Hehir said. “We want to avoid impacts to our public infrastructure, so if we don’t do this at this point, we may be in trouble in the future.”
To that end, the city has developed a list of preferences as to location and structural preferences, and will require Telecom companies to place large equipment boxes out of sight.