Posted on by pmg

Macro Cell Tower Siting RF-EMR Discussions in Thousand Oaks, CA

Adapted this from a piece by Dr. Jonathan L. Kramer, Nov 19, 2019 | Original Blog post here.

On 11/18/19, the City of Thousand Oaks, CA Planning Commission heard and acted on a citizen’s appeal of a camouflaged Verizon macrocell cell site that was previously approved by the City’s Hearing Officer. The Appellant opposing the approval was Prof. Trevor G. Marshall. Applicant Verizon Wireless was represented by Kevin P. Sullivan, Esq.

The design of the proposed camouflaged cell site is as shown below (from Verizon’s design plans).

img

Click image to view larger version

Nearly 100% of the public testimony focused on pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) emissions. The Commission, public, and staff discussions are informative. They span negative health consequences, administrative process, duty of loyalty, and the federal government/local government relationship regarding RF-EMR emissions.

After nearly three hours of staff presentations, quite thoughtful public testimony, and post-public hearing discussions, the City’s Planning Commissioners voted to uphold the Hearing Officer’s approval of the cell site project on a 4-0 vote (one absence).

11/18/19 — City of Thousand Oaks Planning Commission Meeting

Correction: NEPA = National Environmental Policy Act

Summary of Case 18-1129: United Keetoowah Band of Cherokee v. FCC

I. Re: Eliminating NHPA and NEPA Review for Small Cells

(Text selected from the Ruling’s pages 14-27 and 38-39)

The FCC Argued:

The Order did not follow the processes for . . . a categorical exclusion from NEPA, or any other wholesale or aggregated form of review, but simply eliminated . . . NEPA review on most small cells by removing them from the FCC’s limited approval authority. Small cells had not previously been defined or regulated separately from macrocell towers.

The Commission defines in 47 C.F.R. § 1.1312(e)(2) the small cells that its Order deregulates as wireless [telecommunications] facilities that

  • are not on Tribal lands,
  • do not require antenna structure registration because they could not constitute a menace to air navigation,
  • do not result in human exposure to radiofrequency radiation in excess of applicable safety standards, and

  • are “small” per the following conditions:

    1. The facilities are mounted on structures 50 feet or less in height including their antennas . . .

    2. Each antenna associated with the deployment, excluding the associated equipment . . . is no more than three cubic feet in volume;

    3. All other wireless equipment . . . is no more than 28 cubic feet in volume.

The Order [says that] small cells that meet those requirements are now outside the purview of the Commission’s limited approval authority, the mechanism by which it has required NHPA and NEPA review since 1990 . . . The Commission reasons that removing small cell construction from its limited approval authority removes the “sufficient degree of federal involvement” necessary to render an undertaking or action “federal.”. . . In the Order, the Commission made a new determination that it was not in the public interest to require NHPA and NEPA review on small cells, so simply removed them from its limited approval authority.

The Petitoners/Intervenors Argued:

  • The FCC unlawfully excluded small cells from NHPA and NEPA review . . . Keetoowah and the NRDC argue that the Commission failed to adequately consider the harms of massive deployment and to justify its decision to completely exempt small cells from review;

  • The NHPA and NEPA mandate review of small cell construction;

  • The geographic licenses the Commission grants, which allow wireless companies to operate on spectrum, constitute sufficient federal control over wireless facility construction to make the construction a federal undertaking and a major federal action triggering review under those statutes.

The DC Circuit Judges Concluded:

If [Petitoners/Intervenors] prevail on any one or more of those grounds, we must vacate the Order’s deregulation of small cells and remand to the FCC.

  • The FCC failed to justify its determination that it is not in the public interest to require review of small cell deployments.

  • We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious.

  • The FCC did not adequately address the harms of deregulation

  • The FCC did not justify its portrayal of those harms as negligible

  • The FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.” . . . because the FCC mischaracterized

    1. small cells’ footprint
    2. the scale of the anticipated deployment [800,000 Small Cell units nationwide]
    3. the many expedients already in place for low-impact wireless construction,
    4. the FCC’s decades-long history of carefully tailored review

  • the FCC inadequately justified its portrayal of deregulation’s harms as negligible . . .

  • In its brief, the Commission sums up its explanation of the difference: “small cells are primarily pizza-box sized, lowerpowered antennas that can be placed on existing structures.” Resp’t Br. 3; see also Order ¶¶ 66, 92.

  • The FCC likened small cells to small household items that operate on radiofrequency such as “consumer signal boosters [and] Wi-Fi routers,” which do not undergo review. Order ¶ 66

  • We conclude that "smal cells" are crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them

  • We conclude that it impossible on this record to credit the claim that small cell deregulation will “leave little to no environmental footprint.” Order ¶ 41. The FCC anticipates that the needed “densification of small deployments over large geographic areas,” id., could require 800,000 deployments by 2026, FCC, Declaratory Ruling & Third Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018)

  • The FCC failed to assess the harms that can attend deployments that do not require new construction, particularly the cumulative harms from densification.

  • The FCC noted that all facilities remain subject to its limits on radiofrequency exposure, Order ¶ 45, but failed to address that it was speeding densification “without completing its investigation of . . . health effects of low-intensity radiofrequency radiation,” which it is currently reassessing. Comment of BioInitiative Working Grp., J.A. 235

  • What the Order 18-30 accomplishes is to sweep away the review the Commission had concluded should not be relinquished; the Commission already had in place NEPA categorical exclusions . . . covering most collocations — as well as other kinds of deployments unlikely to have cultural and environmental impacts. Since the 1970s, the Commission has said that most collocations on existing towers or buildings are not “major” federal actions and therefore are not subject to NEPA review. (Implementation of NEPA, 49 F.C.C.2d at 1319-20; 47 C.F.R. §§ 1.1301-1.1319)

  • The FCC excluded most collocations from individualized review, (see Collocation Agreement, 47 C.F.R. Pt.1, App. B); . . . and it expanded NHPA and NEPA exclusions for collocations, (see Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at 12870 ¶ 11).

  • We conclude that the FCC fails to justify its conclusion that small cells “as a class” and by their “nature” are “inherently unlikely” to trigger concerns. By ignoring the extent to which it had already streamlined review, the Commission overstated the burdens of review . . . The Commission fails to explain why the categorical exclusions in place did not already minimize unnecessary costs while preserving review for deployments with greater potential environmental impacts.

  • The FCC dismissed the benefits of environmental review in a two-sentence paragraph, describing most of the comments that highlight those benefits as “generalized” Id. ¶ 78. Characterizing a concern as “generalized” without addressing that concern does not meet the standard of “reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct. at 2706.

  • The FCC’s conclusion that small cells are inherently unlikely to trigger concerns is arbitrary and capricious, and describing comments as “generalized” does not excuse the agency of its obligation to consider those comments as part of reasoned decisionmaking

  • We rule that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decisionmaking.

  • We do not rule on the claim that small cell construction is a federal undertaking and a major federal action as the basis for requiring NEPA review.

  • The NRDC cites its own comment to the FCC “that if the FCC sought to exclude an entire category of wireless facilities from NEPA, it was required to establish a categorical exclusion.”

  • The NRDC’s argument was that the federal character of the geographic area license meant that the Commission could not entirely exempt wireless facility construction from NEPA review . . .

  • The NRDC asserted that the proposed rule failed to comply with NEPA . . . because the issuance of licenses constitutes a major federal action.

  • A third comment urged the FCC to consider the cumulative effects of radiofrequency exposure — see Comment of BioInitiative Working Grp., J.A. 235-38.

Conclusion: We grant the petitions to vacate the Order’s removal of small cells from its limited approval authority and remand to the FCC.