NEPA Strategies

The following is an email conversation, about NEPA strategies. — listed in chronological order

Please note [S4WT: Comments] that are sprinkled about in the text below, were added to this web page and not part of the original emails.

Conclusion: Smart people sometimes disagree. Decide for yourself what to do, but get crackin’ out there.

• The tanks are rolling forward . . .
• How many weapons in your fox hole should you fire? All of them.
• When? Now.

1. On 1/27/2020, Mark G wrote:

January 27, 2020

Joel and everybody else,

Thank you for this update. Here in Elk Grove I continue to work to protect residents from the health hazards of long term cell antenna electromagnetic radiation. I am cc’ing attorney Mark Pollock on this message.

I am with you in spirit, everybody who is fighting the proliferation of cell antennas.

With all due respect the "cease and desist" letter was based on a misunderstanding of the United Keetowah court decision. As a result it is unlikely, in my opinion, to cause the City of South Lake Tahoe to make any changes.

I will reply to the statements in the Tahoe Daily Tribune.

Pollock: "The appellate court found that under the National Environmental Policy Act, the FCC needs to “evaluate the cumulative impacts of this whole deployment of 5G,”

In my opinion, this is not true. I have read the court decision closely and there is no such statement. The court said that FCC had not evaluated the cumulative impacts of the nationwide deployment of about 800,000 cell antennas. However the petitioners did not ask the court to do so and the court did not order FCC to do so. The petitioners asked the court to vacate the part of the FCC Order 18-30 that excluded cell antennas from environmental review required by the FCC’s rules implementing NEPA, in particular 47 CFR section 1.1312. The court granted that request.

Pollock: "Since this decision was made in Federal court, the city needs to put a hold on accepting applications and installations until the FCC can get these studies done."

Again, the court did not require FCC to do any studies. The court rejected the reasons FCC gave as justification for its Order 18-30. The court said FCC did not prove that reason.

Furthermore, this is how cell antenna permit applications work.

• The permitting of a cell antenna is a local issue.
• A city or county can issue a permit to a telecommunications company to place, construct and modify a cell antenna on a utility pole or a city owned light pole in the public rights-of-way.
• The FCC does not issue those permits. The FCC does not set any requirements for those permits. Nor does the FCC determine when a given cell antenna permit application is complete or incomplete.

Here are a couple of key excerpts from the United Keetowah Indians decision: https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf

Page 27: "We hold 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 therefore decide neither the alternative grounds for holding that the Order is arbitrary and capricious or otherwise violated the Administrative Procedure Act, nor the claim that small cell construction is a federal undertaking and a major federal action requiring NHPA and NEPA review."

page 39: Conclusion: We grant the petitions to vacate the Order’s removal of small cells from its limited approval authority and remand to the FCC. We deny the petitions to vacate the Order’s changes to Tribal involvement in Section 106 review and to vacate the Order in its entirety. So ordered.

This misunderstanding apparently originated with a very prolific cell antenna opponent in Northern California, whom I know well. He has done fabulous work on the cell antenna issue in many cities and has a very detailed and thorough website. However he is mistaken about what the United Keetowah case says and means. I am not an attorney and I do not practice law. Neither is said activist.

S4WT: I believe that smart people can disagree on how to read and interpret things. I think Mark G is confusing some ‘academic correctness’ with opportunity. The opportunity here is to play the role of "environmental-police-person" or "quality-assurance-expert" and don’t let the Wireless carrier get away with just "mailing it in" — without sufficient environmental analysis.

Instead, seize the opportunity to package up the wireless carrier’s self-policed BS letter with a boatload of evidence of "construction of the facilities has been a source of controversy on environmental grounds in the local community" and make the FCC weigh-in by requiring the FCC to read the full record, complete their analysis of the full record, and to provide reasoned decision-making re: whether or not an EA is required.

In short, make the FCC earn their salaries — and we may get 3-6-9-12 months of delay out of this, to boot. This is an opportunity we can execute for every WTF application in the USA. Open season, I say. Get crackin’ — or just wave your hands in an academic consternation and do nothing. The choice rests with each person — each individual is free to choose whatever actions best defend their community’s homes and families.

Read the details here —> https://scientists4wiredtech.com/action/nepa-strategies/

On the other hand if the City has signed a master license agreement with a telecommunications company that requires the company to comply with all applicable laws or all applicable environmental laws, that agreement is the connection between the City and NEPA. It gives the City the power to say to the company, "We will not issue any cell antenna permits to you until you show us that you have complied with NEPA for each one." Cities should do that.

S4WT: Better yet, convince your City to never sign a Master Licensing Agreement with a Wireless Co., because it is not in their best interests to do so, as explained here: http://scientists4wiredtech.com/davis

It all comes down to one thing: think for yourself!

S4WT: I agree with that one, Mark G..

2. On 1/28/2020 at 2:52 PM Responder wrote:

I’m not sure if I understand what you’re saying here, Mark G. It seems to me that your disagreement is about which agency is responsible for conducting a NEPA review, not about whether such a review is required. I believe the latter is clearly established now.

My understanding is that antenna placements were heretofore considered exempt, and that the D.C. court decision reaffirmed that compliance with NEPA is indeed required. I would interpret that as a requirement to do something, if only to consider whether an antenna must undergo environmental review, and then order it to be done.

In my experience, whoever is planning to do the activity in question, is responsible for getting the environmental reviews under NEPA (and/or the state equivalent, CEQA) done, which would mean the Telecoms must do so themselves. The environmental reviews I’ve participated in were all paid for by the agencies who would be conducting the activities in question, except for one, which was done by the agency that was requested to pay for the activities with public grant moneys.

But according to the FCC attorney that Phoebe consulted (Paul D’Ari), it appears that the FCC is the agency to make the decision about whether any specific antenna siting must be evaluated under NEPA. I therefore believe that the quotes from Mark (P) that you challenged are in fact correct. Incidentally, the current Berkeley Telecom policy leaves it up to the City Manager to determine whether an applicant for an antenna placement must confirm CEQA compliance.

Anyone, including members of the public and others, also have the right to demand compliance with NEPA and/or CEQA. That is something else the FCC lawyer told Phoebe, and it’s also my experience here in Oakland, where we successfully made such a demand of the city about an unrelated issue (pesticides and deforestation). I believe if the responsible agency refuses to comply with federal and/or state environmental laws, legal action to enforce the law can be taken by anyone who has the means to do so.

Whether NEPA and/or CEQA reviews would actually stop installations is a whole other matter. Almost all the reviews I’ve seen came down in favor of the proposed action, even when they admitted that they would have extensive environmental impact. The reason to call for such reviews anyway is

1. as a delay tactic so that there’s more time for other actions to be take to stop the installations,

2. so that the review and detailed justifications can be challenged in court within the usually 30 day period after, and

3. to defend the spirit of the environmental protection that laws like NEPA and CEQA are supposed to facilitate.

In Oakland, our demand for an EIR has so far delayed the proposed actions by over 15 years! This is an unusual situation, but demonstrates that there is value in such a demand. Had we not done that, Oakland would have been deforested by now, and many more people injured by pesticides. We are now in the middle of that CEQA process, awaiting the Draft EIR, which will be open to public input one last time, then result in a Final EIR that will likely be challenged by a lawsuit we are already fundraising for.

Please be aware that I removed the journalist from this communication, because I don’t think it’s wise to include the media in strategy discussions.

Responder

3. On 1/29/2020, at 11:12 am, Mark G wrote:

From: Mark G
Subject: Re: [cell-tower] So. Lake Tahoe, CA: City receives cease, desist letter for small cell wireless facilities
Date: January 29, 2020 at 11:12:01 AM PST
To: [Responder]

January 29, 2020

Hi [Responder],

Yes that’s right – I was saying that NEPA requires the companies to do the routine environmental evaluation, not the FCC. Such a review is required for each cell antenna, yes. We are talking about the FCC’s regulations that implement NEPA, which are in 47 CFR sec 1.1301 through 1.1319, and 1.1307 and 1.1312 in particular.

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=622b8dcd81e1f12235c3a20fdfc4e645&rgn=div6&view=text&node=47:1.0.1.1.2.9&idno=47#se47.1.1_11301

FCC Order 18-30 added a section to 1.1312 that excluded cell antennas from the requirement of routine environmental evaluation. The petitioners in the United Keetowah et al. v FCC case challenged that. The court agreed that FCC could not do that and therefore vacated the part of that Order. The FCC followed up by removing the section they had added to 1.1312 excluding cell antennas.

https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf

I understand what you are saying about the agency responsible for doing the activity in question has to do the environmental reviews. But NEPA and the FCC’s rules implementing NEPA do not require the city or county where the cell antennas will be installed to do that. They do not directly require the city or county to do anything. The master license agreement, where there is one, is the connection between the city or county and NEPA.

Phoebe sent me her correspondence with the FCC attorney too. With all due respect he did not say that the FCC is the agency to make the decision about whether any specific antenna siting must be evaluated under NEPA. No way. He simply didn’t say that. You can go through his email line by line, word by word, and you’ll find that he didn’t say that. He also didn’t say that on the conference call I just had with him this morning. (I will write about that separately.) Where did he say that?

See also my new email about my conference call with the FCC attorneys this morning.

There is nothing in the court decision that says that FCC has to do any sort of environmental evaluation regarding cell antennas. There’s no way around it – the permitting of cell antennas is a local issue. The FCC does not issue those permits. FCC has no requirements for what has to be in those permits. FCC does not determine whether a certain permit application is complete or incomplete. That is purely up to the city or county that issues the permits.

. . . begin S4WT insert . . .

A Summary of the Case United Keetowah et al. v FCC

Text selected from the Case No. 18-1129 Ruling, pages 14-27 and 38-39

From https://scientists4wiredtech.com/2019/08/federal-court-overturns-fcc-order-bypassing-environmental-review-for-4g-5g-wireless-small-cell-densification/#summary

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, lower-powered 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 radio-frequency 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 decision-making.” 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 decision-making
• 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.

. . . end S4WT insert . . .

Consider that the FCC and the industry lobbying group CTIA have said they plan to install 800,000 cell antennas nationwide. Do you think the FCC wants to be making any sort of decision for each one of those antennas?

The company has to do the routine environmental evaluation required by the FCC’s rules implementing NEPA.

S4WT: Or, people can choose to do the following, in response to a weak, self-policed applicant letter that claims NEPA exemption:

1. Compile substantial written evidence that establishes that "construction of the facilities has been a source of controversy on environmental grounds in the local community"
2. Add Substantial written evidence of all of the environmental harms caused by the construction of the facilities, including threatening the quiet enjoyment of streets —> https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/
3. File a NEPA complaint with the FCC with the evidence in [1] and [2]

S4WT: Agreed. This is mostly a delay strategy, but don’t miss this very helpful FCC NEPA rule:

§ 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=07afc9702f0a2dcc235fb74a95039ac8&h=L&mc=true&n=sp47.1.1.i&r=SUBPART&ty=HTML

Title 47 CFR § 1.1307 (b) (1) The appropriate exposure limits in §§1.1310 and 2.1093 of this chapter are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in §1.1310 or §2.1093 of this chapter (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section.

Table 1—Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation

Cellular Radiotelephone Service (subpart H of part 22) —> EA required if: Non-building-mounted antennas: height above ground level to lowest point of antenna <10 m and total power of all channels >1000 W ERP

P S. Please, also note that the $2,000 estimate from Sprint in the Order 18-30 footnote is just that, an estimate from Sprint. This is not hard data.

4. On 1/29/2020 at 11:20:37 AM PST, Mark G wrote:

From: Mark G
Subject: [cell-tower] My Conference call today with FCC attorneys about NEPA
Date: January 29, 2020 at 11:20:37 AM PST
To: xxx

Hello all,

This morning I had a conference call with the Mayor and City Attorney of Elk Grove and Paul D’Ari and Erica Rosenberg, attorneys at the FCC. The subject of the phone call was the National Environmental Policy Act and the FCC’s rules implementing it. My purpose was to demonstrate to our Mayor and City Attorney that NEPA does require the companies (AT&T, Verizon, etc.) to make what is called a routine environmental evaluation in connection with any new cell antenna. Their obligations are "triggered", as attorneys like to say, by both the licensing and construction of a cell antenna.

You will never find a bigger BSer than our City Attorney. He has been telling the City Council that "NEPA doesn’t apply", as if it doesn’t require AT&T to do anything. It does. My web page has several quotations from FCC and the United Keetowah court decision saying that it does. ** And the FCC attorneys said on the conference call today that it does**.

http://www.keepcellantennasawayfromourelkgrovehomes.org/united-keetowah-v-fcc/

He has also said the City doesn’t have the jurisdiction or the authority to enforce NEPA. True but totally irrelevant. As I have told him and our City Council the connection between the City and NEPA is sections 4.1 and 4.3 of the City’s Master License Agreements with both AT&T and Verizon. Those sections say:

4.1 City Use Permits.

Prior to the installation of any Small Cell Wireless Communications Facility, Licensee shall obtain all necessary permits as required by EGMC Chapter 23.94 and this Agreement, and Licensee shall obtain all other City permits and/or entitlements necessary for the Small Cell Wireless Communication Facility required by any government agency. In securing permits pursuant to this section and the EGMC, Licensee shall comply with all applicable environmental laws including, without limitation, the California Environmental Quality Act (“CEQA”).

4.3. Other permits.

In addition to any permits required by sections 4.1 through 4.2, Licensee represents and warrants to Licensor that it has (or will have at the time of installation of any Small Cell Wireless Communications Facilities) all licenses, permits, qualifications and approvals of whatsoever nature legally required for Licensee to conduct such installations. Licensee represents and warrants to City that it shall, at
its sole cost and expense, obtain and/or keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Licensee to conduct such installations.

The call the FCC attorneys confirmed what I thought, that both the licensing and the construction of a cell antenna "trigger" that obligation. I asked whether the company’s NEPA obligations kick in upon construction and licensing. Erica Rosenberg said yes. Erica said,

"We do license AT&T and Verizon. Pursuant to that they may build cell antennas. That triggers NEPA. We delegate to them. They have to comply with our process before they construct."

She told us the FCC’s rules implementing NEPA are at 47 CFR and asked if I was familiar with them, and I said yes. She said,

[paraphrased]: There is a checklist that they must review. It is to determine if the cell antenna will affect wetlands, endangered species, etc. If they determine that it won’t then there is no requirement for an Environmental Assessment and they decide that that cell antenna is categorically excluded (from the requirement of an EA). Cell antennas fall under that. If one category is triggered then they have to do an EA.

That is not exactly verbatim but it is very close to a verbatim quotation of what she said.s.

That was a very clear statement that NEPA requires the company to comply with the FCC’s NEPA process for cell antennas. It is not optional or voluntary.

Although the responsibility for compliance with NEPA is with the FCC, according to the FCC’s website (and the FCC attorneys agreed with this today),

"The FCC has delegated the initial assessment of whether a proposed facility is categorically excluded (and certification to that effect) as well as preparation of EAs to licensees and applicants."

The FCC’s website also says

"The FCC considers registering and licensing towers and facilities intended to host licensed services to be major actions that trigger agency NEPA obligations."

Obviously AT&T is considered a licensee and a cell antenna is a facility intended to host licensed services.

This morning on the call I asked the FCC attorneys about this quotation from the United Keetowah Indians v FCC case, "All ‘major Federal actions significantly affecting the quality of the human environment’ trigger environmental review under NEPA, . . . . Major federal actions ‘include[] actions . . . which are potentially subject to Federal control and responsibility.’ 40 C.F.R. §1508.18." (page 7) I asked them if a cell antenna is potentially subject to Federal control and responsibility.

Paul D’Ari said,

"We have responsibility."

Erica Rosenberg said,

"The court said it is a major action."

Paul D’Ari said

"I think the situation is the City can’t determine whether AT&T has complied with NEPA or not."

But the City can determine whether AT&T has complied with the MLA. The City is a party to the MLA. Paul D’Ari didn’t say that the City can’t.

Our City Attorney’s response to sections 4.1 and 4.3 of the MLA, which I read to them all during this phone call, is that those are not conditions, those are covenants. As in, they are not conditions for the City issuing a permit to AT&T. He also said that the other party is presumed to comply, and to be in compliance (same thing I guess) with the covenants. That is his excuse for not requiring AT&T to demonstrate to the City that they have actually done the routine environmental evaluation.

I asked how I can find out if AT&T has done this routine environmental evaluation for a given cell antenna. Paul D’Ari said they (AT&T) have certified that they will. I said it sounds like the honor system. Erica Rosenberg said yes it is.

Then I said suppose I am the CEO of AT&T and I want to get 100 cell antennas in the City of Elk Grove. I know from experience that each routine environmental evaluation will cost about $2,000. We have to hire experts to do them. But I want to maximize the profits of AT&T for my shareholders and since nobody is really watching, neither the FCC nor the City, I will just not do them — despite the fact that I certified to the FCC that I will and I agreed to do them in my MLA with the City. Paul D’Ari responded that these are the FCC’s rules and he would not get into a discussion about, basically the merits of the rules.

This to me is another sign that the FCC is not serious about environmental protection and complying with NEPA. It is a bogus system of compliance where AT&T is not required to produce any proof of compliance. The FCC does not require any. They were very clear about that.

It’s bad enough that the FCC is not serious about environmental protection — or health effects on people and animals and wildlife for that matter. The industry spends $100 million a year lobbying Congress and the FCC. But for our city of a population of 170,000 to be working for the Telecom companies and to not take environmental protection seriously is just awful. How gutless!

From this I conclude that each city’s zoning code amendments (via an ordinance, usually) should say that part of the application for each cell antenna is documentation that they have complied with all applicable environmental laws including NEPA.

Our zoning code currently says:

"All permit applications for wireless communications facilities shall include a description of services proposed and documentation certifying applicable licenses or other approvals required by the Federal Communications Commission to provide services proposed in connection with the application."

https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050

It doesn’t require documentation certifying compliance with all applicable environmental laws. That would include compliance with NEPA. I believe that the City of Elk Grove zoning code should.

If your city is in the process of amending its zoning code it should require, as part of the application, documentation demonstrating compliance with all applicable environmental laws. That is what I conclude. Consider yourself lucky if your city attorney is not an enormous BS artist working as hard as he can to minimize the amount of work he has to do and to do curry favors to the Telecom companies by letting them off the hook of their responsibilities in the Master Licensing Agreement.

Mark G

5. On 01/29/2020 at 2:13 PM, Responder 2 wrote:

It is only the conclusion of the Keetowah/NRDC case decision that matters, though statements the judges made before the conclusion might be quoted to bolster an attorney’s argument in another lawsuit.

S4WT: So, in the sentence above, the second phrase, essentially cancels the first phrase, doesn’t it? The judicial reasoning in the 20+ reasons provided by the DC Circuit judges in their Ruling for Case No. 18-1129 can be used for future legal actions by a party of standing that might move that the FCC’s response to the judge’s ruling was insufficient. Read here — > https://scientists4wiredtech.com/2019/08/federal-court-overturns-fcc-order-bypassing-environmental-review-for-4g-5g-wireless-small-cell-densification/#summary

Attorneys differ in interpretations of some court decisions, especially this one which is obtuse.

S4WT: . . . as do the non-attorneys on this mailing list . . . I don’t find the Ruling on Case No. 18-1129 obtuse.

If feasible, laypeople, rather than wading through and trying to decipher legalese, are better off consulting attorneys who are well-versed in the intricacies of telecom regs and related lawsuit decisions and/or asking for clarification from the FCC senior legal counsel.

S4WT: Only if you want to spend the $ to do so. Attorneys don’t have the lock on the truth. Many actions can be taken without attorneys.

I interpreted d’Ari’s reply to my inquiry as meaning that NEPA reviews can be required nationwide for small cell applications submitted after 8/9/19. (I don’t wish to ask him to confirm that because I don’t want to risk getting him to reconsider and change his mind;)

S4WT: That’s one interpretation that was confirmed by FCC attorneys D’Ari, Rosenberg and Goldschmidt on 12/12/19: Every individual sWTF application must undergo NEPA review.

Thanks, Isis, for your fab letter to council@CityOfBerkeley.info and for having informed me that there are three kinds of NEPA review. We’d prefer that an EIS be required, because it can take years. The Telecom companies will claim that categorical exemptions suffice, but they should be required to complete a checklist to achieve that exemption, and provide documentation which can be time-consuming and costly to them.

S4WT:. . . AND decisions that are based on substantial evidence in the public record that can be verified by the public. That means we can require reasoned decision-making, based on the evidence in the record.

So that is a 4th reason for pushing for NEPA review. If it adds $1k-$2k to the cost of each application, telecom might give up.

S4WT: . . . doubtful, IMHO, but I think we should make the Telecoms dot every "i" and cross every "t" at every step we can.

Without at least claiming a categorical exemption, small cell applications submitted after 8/9/19 should be denied, and those approved should be revoked. But how to achieve that? We had hoped a Cease/Desist letter/demand would suffice, but ours has been ignored because it has no teeth.

S4WT:: . . . No teeth? The teeth come in subsequent responses/injunctions. A Cease and Desist letter is just the first step in a process.

The So Lake Tahoe City attorney said re Berkeley’s Cease & Desist demand (which was a letter, not an order): “The city is required by federal law to process applications for all qualifying facilities within certain time frames so it is unclear to me how the city could grant the relief requested.”

S4WT: . . . uh . . . who cares what So. Lake Tahoe Heather Stroud says? Any City could declare a WTF application incomplete until there is substantial evidence in the public record showing that sufficient NEPA review/analysis has been completed.

Federal telecom law preempts a letter/demand from an attorney.

S4WT:: Why do you say that? Citation?

The Cease/Desist letter is a heads up that the City might be sued by residents, but if the City denies permits they could be sued by a Telecom firm.

S4WT: Not necessarily. A City declaring applications incomplete stops shot clocks. Only the CA state shot clocks have foundation, IMHO :150 days for new construction and 90 days for modification. The FCC Order 18-133 Shot Clocks at 60 days are** based on no environmental review needed**, but the foundation for those shotclocks were removed on 12/5/19. So the FCC 60-days shot clocks are very suspect at this point.

A citizen lawsuit would not stop the shot clocks until and unless a binding Cease & Desist Order resulted from the lawsuit.

S4WT: Not necessarily. A City declaring applications incomplete stops shot clocks.

By consulting an attorney who has more telecom experience . . .

S4WT: Which attorney was that?

. . . I learned that operations of wireless telecom facilities (WTF) are included in sec 704 of the ’96 Telecom Act.

S4WT: Really? Citation?

Some advocates have said that the prohibition of local officials basing regs on environmental effects and health factors only applies to placement and permit approval of WTF, not to operations, so cities can require that emissions be restricted to 10% of the FCC standard and require installation of a fuse box to monitor that.

S4WT: Not exactly. Read this page —> http://scientists4wiredtech.com/compare

1996 — 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. —

      (A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

. . .

(B)(iv) 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.

The winning idea is to regulate the Effective Radiated Power (not the RF-Emissions) in order to preserve the quiet enjoyment of streets, which is within a City’s aesthetics police powers. Read —> https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/

The advocate talked so fast that I couldn’t take detailed notes, but an attorney told us that a 1995 version of the TCA included operations, and it was removed in 1996 on the grounds that it is obvious that operations can’t be regulated based on env/health either.

S4WT: The attorney and the advocates are correct about operations of WTFs being under local control; read about it here: —> http://scientists4wiredtech.com/compare

The attorney also said that CEQA is pre-empted by sec. 704 because the feds claim that the feds are handling it adequately re radiation.

S4WT: Sounds like another overreaching FCC regulation that is not consistent with the underlying statute, the 1996-TCA. Do you have a citation for this claim? Which FCC rule?

BUT there are other significant environmental impacts, not just RF emissions (construction, pollution, etc.) He claimed to have read d’Ari’s reply to me, and said he doesn’t think NEPA is required unless there are endangered species, Native lands, wetlands, etc.

S4WT: Do you have a citation for this claim? FCC attorneys D’Ari, Rosenberg and Goldschmidt said 12/12/19: Every individual sWTF application must undergo NEPA review.

The attorney didn’t think our cease/desist letter would “play out.”

S4WT: Why? Did he provide any reasons?

He said that though cities have to comply with federal laws, the Telecom Act doesn’t override federal statutes like the ADA and FHA, and that it is not legal to require that disabled people will be forced to seek accommodation within only 5 days of being noticed.

S4WT:: Agreed.

— Responder II