Idaho

Ada County Highway District Commission Meeting – May 20, 2020

 

May 20, 2020 SLIDES ARE HERE


2020-0520-ACHD-Meeting-Minutes


Meridian, ID City Council Meeting – May 26, 2020

 

Date: May 28, 2020

From:

Idahoans for Safe Technology (IFST)
http://idahoansforsafetechnology.org

To Ada County Highway District (ACHD) Commissioners:

Rebecca Arnold rarnold@achdidaho.org
Sara Baker sbaker@achdidaho.org
Kent Goldthorpe kgoldthorpe@achdidaho.org
Jim Hansen jhansen@achdidaho.org
Mary May  mmay@achdidaho.org

cc:

Bruce Wong, Director, bwong@achdidaho.org
Stacey Spencer, Assistant to Director spencer@achdidaho.org
 

Re: Follow Up From the May 20, 2020 ACHD Meeting re: Ordinance 244

 
[Ms. Stacey Spenser, will you please ensure that this email gets into the ACHD public record attached to the May 20, 2020 agenda Item 1: Ordinance No. 244 – Amending Title II of the ACHD Code with the addition of a new Policy Section 7400.  We understand that the Public hearing for this agenda item remains open as of May 27, 2020. Thank you for doing so.] 
 

Dear ACHD Commissioners,

Thank you for not voting through Item 1 from last week’s agenda: draft language for Ordinance 244. We are very grateful that you wish to seek the further information that you need.

As it stands, the Ordinance 244 draft, a fiscal and safety disaster, includes incorrect and unlawful content that would damage Ada County Residents – and even Idahoans, generally, were this language to set an example for other counties. We believe that Ordinance 244 was drafted contrary to the interests of our County by the telecom industry. The language in Ordinance 244 must be revised.

ACHD legal counsels, Steve Price and Scott Spears on Tue May 26 advised us that they are not planning any changes the Ordinance language. Specifically, Mr. Spears told us that they were “not planning on making any changes” because “no one made a motion to change anything”. Spears further told us that “we’re just going to resubmit this thing.”

This seems contrary to the direction that ACHD Commissioners gave to Price and Spears on May 20 (see the Commissioner quotes from the discussion from that day, below). On May 20, the attorneys promised to answer questions that the public raised that day, but we have seen no such answers from Price or Spears. Have you received any such answers? If so, will you please share them with us? The stiff-arm responses we have received from the ACHD attorneys indicates bad faith in the ACHD’s process of including the public in the re-drafting of the ordinance.

After putting us off all week, holding no meetings of substantive discussion with Idaho residents, the ACHD’s legal counsels have now requested our suggested edits to the Ordinance by Friday, May 29 at 4:30 pm. The legal Counsels refused to provide an editable digital version of Ordinance 244, forcing us to produce our own working documents from scratch.

Further, Price and Spears told us, that they intended to submit to vote on June 3, 2020 the very same language of the Ordinance from May 20 — unchanged. This is outrageous. We cannot help but speculate these attorneys’ interest in pushing forward this blatant Wireless industry agenda. This is even more evidence of bad faith in dealing with Idaho residents. By accepting only our written comments/suggestions on Fri May 29 — with no time for discussion or meetings along the way — this Ordinance should just be voted down and sent back to the drawing board, as Commissioner Hansen suggests.

Alternatively, as we detail below, the ACHD can easily stop all Wireless Telecommunications Facilities (WTFs) shot clocks, by simply writing letters to the Wireless applicants detailing the many ways that the applications are incomplete. This is a very easy and effective way to take all of the time pressure off of passing this Ordinance. The governor’s current CoViD-19 lockdown order even allows the ACHD to pass an eight-month moratorium on all WTF applications, just as they did in Fairfield County, CT on May 7, 2020 (see https://scientists4wiredtech.com/2020/05/4g-5g-resolution-by-the-town-of-easton-ct/). The "essential industry" claim for telecommunications and broadband services in the Governor’s CoViD-19 order was to ensure that existing telecommunications and broadband service is up and running during the Emergency — not for new construction.

For proper process, the ACHD Commissioners might consider setting a vote on the procedural question of whether County residents shall be allowed influence in the drafting of the Ordinance language. As we said, if Legal Counsels’ industry language is resubmitted for another vote on June 3, as is, then we believe the ACHD Commissioners must vote NO, as the language of Ordinance 244 is deceptive and unlawful.

We plan to provide our suggested language changes to Ordinance 244 on May 29, but, due to certain statements by Spears and Price, which do not show good faith, we lack confidence that the attorneys will make proper use of our suggested edits to Ordinance 244, which we produced at great cost of time, energy and finances.

In general, we agree with Commissioner Jim Hansen’s and Other Commissioners’ comments that Ordinance 244 far overreaches ACHD’s authority into city and county zoning and residents’ health and safety duties, obligations and jurisdiction.

May 20, 2020 ACHD Commissioner Comments

Commissioner Rebecca Arnold at https://youtu.be/Nx6bD0FIqd0?t=12m26s

"Personally, I am not prepared to adopt an ordinance today, I understand the need to do so, however, I am not prepared to do that. There are a number of unanswered questions. There were some questions raised by the first speaker, I believe her name may have been Lynette. I would like to hear answers from the Staff to the questions raised by that speaker, I would also like to have a response from our legal department to the presentation and some of the issues raised by Paul Gavin. We have also had a number of people who have asked that this be deferred to a night meeting and frankly I think that would be appropriate to allow opportunity for the public to weigh in on this."

Commissioner Mary May: at https://youtu.be/Nx6bD0FIqd0?t=19m56s

"We are trying to fill a void by establishing these standards. I think that is important whatever they may end up being . . . I do feel we have a lot of unanswered questions out there and we did get a lot of good information today, so I don’t think we can defer something indefinitely. . . the Governor’s order goes through the 26th of June, but I would not be averse to getting answers to some of these questions, as well . . . Everyone put a lot of time into their research and comments today . . . we got a lot earnest testimony and I took a lot of notes and I would like to have more information and I would like us to be responsive to the questions that were brought up today . . . the ordinance is necessary, it is critical, but we need to do it right."

Commissioner Jim Hansen: at https://youtu.be/Nx6bD0FIqd0?t=26m25s

"I have heard a lot of evidence today and today and in two weeks I would very likely be voting against it [the ordinance]. There is a huge problem in this and it’s an Ada county problem, because the FCC Order was written with the assumption that the local government to whom it
refers has authority over land use, health and safety, aesthetics, historic, habitability of residences. We have been warned time and time again against what is often called mission creep . . . when this Highway Agency extends beyond and starts to delve into areas over which it has no expertise. This [ordinance] is far beyond mission creep . . . The cities’ responsibilities is to regulate the health and safety of their own citizens. I understand cities do want to incentivize fiber optics."

In short, the proposed ACHD zoning language, including but not limited to the offset from homes, schools, parks and care facilities should be pulled from this Ordinance and left to the Zoning Authorities of Ada County and the cities of Boise, Eagle, Garden City, Kuna, Meridian and Star.

For these reasons, we ask to work directly with ACHD policy staff, not with the attorneys whose role should be limited to that of advising the ACHD policy staff and Commissioners. The ACHD attorneys emailed the May 19 response in Appendix A, below, which appears to us to be written by the Wireless industry.

We seek to work with Director Wong to differentiate clearly which parts of the draft Ordinance language properly belong, in ACHD Code and which parts belong in the Municipal Code of each of the County and the six cities. We trust you are strong proponents of local rule, as opposed to proponents of international corporate rule.

Ada County residents who participate in the democratic process, and who advocate with practical ordinance language based in relevant facts and laws for the needs of all residents thereby, must be properly, fully considered by their elected representatives and by the respective staffs of the ACHD and the six cities.

Commissioner May, we are grateful for your having heard our desire to incentivize Fiber Optic to the Premises (FTTP) as the best choice for broadband internet access. We also heard your request to review other cities’ ordinances.

Here are links to two such Ordinance examples.

A simple solution is that of Petaluma, CA, which was a small addition to circa 1996 Municipal Wireless Code. → https://scientists4wiredtech.com/petaluma/petaluma-municipal-code/ (See Petaluma’s 400 or so words in Appendix B).

A more complete Ordinance is the one from Calabasas, CA which was excellent from 2012 through February 2019, but was then weakened by the addition of the “Small Cell” section → https://scientists4wiredtech.com/calabasas/2019-calabasas-wirelesscode/.

Proper Process

The fair due process provided by various laws and constitutions requires open minds and good-faith efforts on the part of staff, whose salaries, benefits and pensions are paid by County residents. Each staff person took an oath to serve the needs of the residents (natural persons), not only the wishes and whims of external corporations (artificial persons). In-person meetings are the very staple and foundation of public participation at all levels: federal, state, and local. Your Legal Counsels’ attempt to prohibit such is not lawful.

Without limitation, under the 14th Amendment of the US Constitution, Ada County residents require at least equal time to that granted to Wireless Co. representatives and agents for engaging with ACHD Staff in preparation of the draft Ordinance.

For this purpose, we are requesting that prior to finalizing the Ordinance, the ACHD please provide to us:

  1. An accounting of the total time, to-date, that ACHD staff spent working with any and all agents of, and/or documents provided by Wireless industry sources re: the draft Ordinance 244. We recognize the text of 244 as deriving from the wireless industry’s playbook, the same language that the industry brings to state and local governments across the US. The language of Ordinance 244 would positively be plagiarist, were it not written by the same ultimate source: the American Legislative Exchange Council (ALEC) by wireless industry lawyers.

  2. Time in at least an equal amount together with ACHD staff to allow County residents, as full stakeholders in the process, to present substantial, written evidence, including, but not limited to the 1996 Telecommunications Act that tells local officials how to protect residents’ interests.

As all operations of the ACHD, except for personnel matters and attorney-client communication, must be open to public inspection, we hereby request such accounting of records of meetings, written correspondence (by all means) and calls between wireless industry representatives and ACHD staff and commissioners from Jan 1, 2018 through the present.

With these data, we can define a reasonable amount of time needed for meetings between Residents and ACHD Commissioners and staff. Equal access and time for Residents is essential for proper process. The U.S. Congress forbade “Preferential treatment” for the wireless industry, as you will read hereinafter.

The ACHD Has a Timing Problem That It Can Solve

ACHD staff, by not agreeing to meet and have substantive conversations with Ada County residents have created a time crunch for all parties. We all must recognize that

  • The records requests, above, will take time.
  • Zoom Meetings/phone conferences/presentations will take time.
  • Between Fri May 29 and June 3, there are only three (3) business days in which to do the full Ordinance-language preparation prior to June 3, 2020. 

ACHD’s Legal Counsels’ rush is apparently due to a poor understanding and communication of the wireless companies’ federal shot-clock scam for so-called "small" wireless telecommunications facilities (sWTFs). To understand the Federal sWTF shot-clock scam — and manage it to the County’s advantage — ACHD Commissioners and staff need first to read the content linked to in the following paragraphs:

From https://scientists4wiredtech.com/compare :

"This page is one of three legs of the stool that establishes local control over the operations of WTFs; the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“TCA”) and the stated purpose of the TCA: to promote the safety of life and property."

The 1996-TCA Conference Report states: 

"If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision."

The probable fate of FCC Order 18-133, the Small Cell Streamline Deployment Order, is detailed here: https://scientists4wiredtech.com/ninth-circuit-case-repeal-of-fcc-18-133/. The Ninth Circuit Court of Appeals judges are likely to vacate all or at least large portions of FCC Orders 18-111 and 18-133 in their Ruling, which is expected to be published ~July 15, 2020 — another good reason to deem all sWTF applications incomplete and to wait on passing Ordinance 244 — until after the Ruling has been released.

Note also what Counsel Steve Price stated during the May 20, 2020, Public Hearing: https://youtu.be/Nx6bD0FIqd0?t=530.

Steve Price on May 20, 2020:

"Our mandate is safety within the public right of way . . . there are several states that have state legislation that is similar to what we are trying to achieve today.  Idaho, to date, has not adopted a law . . . If the Ninth Circuit has a different Ruling, we are not controlled by the D.C. Circuit; but if the Ninth Circuit Ruling changes the law; there is [sic] also two pieces of legislation at Congress right now that are going in different directions. But if the law ever changes, we would have to change our Ordinance . . . To date, to my knowledge, all of the [sWTF] locations have gone through review by the City of Meridian and the City of Boise and the cities want that authority to be able to do that . . . We feel we have to be consistent with the current Federal law and at least get something going in terms of the many applications we have waiting."

Mr. Price confuses the presumptive FCC Order 18-133 (the rule about to be vacated by Ninth Circuit judges) with Federal law, which it is not.

Mr. Price is also confused whether D.C. Circuit Rulings apply to Idaho. They do. The D.C. Circuit is not one of the eleven geographic Circuits, but is rather just below the U.S. Supreme Court in jurisdiction. Even Verizon attorneys agree, as admitted at 3:34:55 in the public record video by Verizon outside counsel Paul Albritton at the San Francisco Board of Appeals on Nov 20, 2019: “My colleague, Melanie Sangupta, reminded me that the 8/9/19 NEPA Ruling does apply nationwide.” Where there is no appeal to the Supreme Court, which there is not in the aforementioned case, the D.C. Circuit Court decision holds as if a Supreme Court decision.

See graphic and documentation showing judicial hierarchy here: http://mystreetmychoice.com/press.html#courts 

The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate courts, and covers only one district court: the U.S. District Court for the District of Columbia. After the U.S. Supreme Court, the D.C. Circuit is usually considered the most prestigious of American courts because its jurisdiction contains the U.S. Congress and many of the U.S. government agencies, and therefore it is the main appellate court for many issues of American administrative law and constitutional law.

Directive

Therefore, the ACHD must wait until July, 2020 and have the benefit the Final Ruling of the Ninth Circuit Court of Appeals on 18-133 before unnecessarily adopting into Ordinance 244 the wireless companies’ agenda.

Unless Idaho has state shot clocks in its State legislation, no enforceable shot clocks exist. Moreover, all FCC shot-clocks are an unenforceable scam contrary to the express intent of TCA.

To manage any pending WTFs applications and purported shot-clocks, the ACHD can simply deem an application incomplete by a letter from ACHD staff to the applicant, because all applications are incomplete. 

Without limitation, pending WTF applications most assuredly lack:

  • Substantial written evidence of a significant gap in coverage (required to establish the need for any WTF); and

  • Substantial written evidence of NEPA review (a requirement of every WTF application, per FCC NEPA Attorney Erica Rosenberg. NEPA requirements: https://scientists4wiredtech.com/action/nepastrategies/

  • Proper liability insurance that protects the county from claims of injuries, illnesses and/or deaths from pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures See: https://scientists4wiredtech.com/thisworks

  • A listing of the names of the board of directors toward positive identification of the applicant, and the assets of the entity actually signing the MLA and other licensing agreements and WTF applications See: https://scientists4wiredtech.com/davis

All the items above are essential. It’s important for you to know that wireless companies in Newport Beach, CA, and many other municipalities and counties, have used bait-and-switch tactics, deceptive DBAs and corporations with no assets that are designed to go bankrupt at the first sign of claims, which would leave the city or county holding the bag financially. Don’t let that happen here!

All these requirements can and must be added to Ordinance 244; they can also be used by the ACHD today to stop all alleged WTF shot-clocks. This gives the ACHD the time it needs for proper process and deliberations on the very important Ordinance 244 language.

Once the ACHD has stopped all purported shot clocks via letters to applicants, then the ACHD is free to set the next meeting for Ordinance 244 when it wishes: such as in mid or late July, 2020 or after COVID-19 restrictions are lifted. This is the most rational course of action available to the ACHD today. You can also enact, as have other localities, a moratorium for a longer period of time, based on the need to work out an ideal ordinance despite the Governor’s shut down orders.

We’re Here to Help

We want to help you. This matter is essential to all County Residents and ultimately all Idahoans. We thank you for your kind attention. Will you please respond by 5:00 pm, May 29, 2020?

— Idahoans for Safe Technology

  • Hank Allen
  • Cathy Cooke, BBEC, EMRS
  • Lynette Daudt, LAc
  • Sherry Gorrell
  • Carla Kyle
  • Rick Walsh

Appendix A

May 19, 2020

Thank you for your comments regarding Ada County Highway District (ACHD) Ordinance Number 244. In the Telecommunications Act of 1996 (the 1996 Act), Congress enacted sweeping new provisions intended to facilitate the deployment of telecommunications infrastructure. Section 253(a) of the 1996 Act provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications service.” Courts have observed that this represents a “broad preemption of laws that inhibit competition”.

Section 332(c)(7) of the 1996 Act provides that

“[t]he regulation of the placement, construction, and modification of personal wireless facilities by any State or local government or instrumentality thereof (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of wireless services.”

The Federal Communications Commission’s (FCC) September 26, 2018 Ruling and Order in WT Docket No. 17-79 “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment” (“Order”) implements Section 253(a) and Section 332(c)(7) of the 1996 Act. Under the Order, States and local governmental entities must allow the placement of wireless facilities in the public right-of-way. States and local governmental entities may make the use of the public right-of-way subject to regulatory objectives such as aesthetics or those relating to public safety and welfare.

Ordinance Number 244 implements the Order and it does so with competitively neutral and non-discriminatory standards and requirements relating to public safety and welfare, including locational standards and the American with Disabilities Act as well as aesthetics.

Notably absent from the Order are locational standards that States and local governmental entities may impose and so ACHD has included important locational standards in Ordinance Number 244; thus Ordinance Number 244 is more restrictive than the Order. In this regard it is noteworthy that under Ordinance Number 244, site locations within residentially zoned areas must first be approved in writing by the local land use agency such as the cities or Ada County. Ordinance Number 244 is ACHD’s response to federal law and the Order, with protection of public safety and welfare a primary consideration.

Scott Spears

Assistant General Council


Appendix B

Search for "Wireless" at https://www.codepublishing.com/CA/Petaluma/

The Petaluma Municipal Code is current through Ordinance 2674, passed November 19, 2018

14.44.020 Definitions.

9. "Telecommunications facility – small cell" means a telecommunications facility that is pole mounted to existing public utility infrastructure.

(Ord. 2662 NCS § 2 (part), 2018; Ord. NCS 2029 (part), 1996.)

14.44.095 Small Cell Facilities — Basic requirements.

Small cell facilities as defined in Section 14.44.020 may be installed, erected, maintained and/or operated in any commercial or industrial zoning district where such antennas are permitted under this title, upon the issuance of a minor conditional use permit, so long as all the following conditions are met:

A. The small cell antenna must connect to an already existing utility pole that can support its weight.

B. All new wires needed to service the small cell must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

C. All ground-mounted equipment not installed inside the pole must be undergrounded, flush to the ground, within three feet of the utility pole.

D. Each small cell must be at least one thousand five hundred feet away from the nearest small cell facility.

E. Aside from the transmitter/antenna itself, no additional equipment may be visible.

F. Each small cell must be at least five hundred feet away from any existing or approved residence.

G. An encroachment permit must be obtained for any work in the public right-of-way.

(Ord. 2662 NCS § 2 (part), 2018)


Date: May 29, 2020

To Ada County Highway District (ACHD) Commissioners:

Rebecca Arnold rarnold@achdidaho.org
Sara Baker sbaker@achdidaho.org
Kent Goldthorpe kgoldthorpe@achdidaho.org
Jim Hansen jhansen@achdidaho.org
Mary May mmay@achdidaho.org

cc:

Bruce Wong bwong@achdidaho.org
Stacey Spencer spencer@achdidaho.org

Subject: ACHD Ordinance 244 Revision Process

 
[Ms. Stacey Spenser, will you please ensure that this email gets into the ACHD public record attached to the May 20, 2020 agenda Item 1: Ordinance No. 244 – Amending Title II of the ACHD Code with the addition of a new Policy Section 7400. We understand that the Public hearing for this agenda item remains open as of May 29, 2020. Thank you for doing so.]

While we are awaiting a response from the ACHD Commissioners to our letter of May 28, 2020 re: Follow Up From the May 20, 2020 ACHD Meeting re: Ordinance 244, we are writing today to clarify our next steps in exercising our rights to participate in a proper democratic due process to ensure that the ACHD makes the needed revisions to ACHD Ordinance 244 — before Ordinance 244 is voted up or down by the ACHD Commissioners. The current process for Ordinance 244 is arguably unlawful.

Since we do not yet have a response to our May 28, 2020 letter, it has not yet been established whether there is any actual need for ACHD Commissioners to vote on Ordinance 244 on June 3, 2020. Commissioners, would the vote on June 3 provide any more tangible benefits to the ACHD or to the public (benefits which should be one and the same), versus scheduling the vote for a later date, perhaps in mid-July, 2020?

Delaying the vote to mid-July, 2020 would provide the following benefits:

  1. The ACHD would have sufficient time to engage in good-faith due process and negotiations with the public on the final language of Ordinance 244.

  2. The ACHD would have the time to provide to the public the public records and information that would be responsive to the public’s existing public information requests and that are relevant to the decisions about the final language of Ordinance 244.

  3. The ACHD would be able to hold an evening meeting with residents able to physically attend the ACHD meeting in order to address their grievances to their government face-to-face, which is their right to do so.

  4. The ACHD Commissioners would benefit from detailed analyses of other localities’ Wireless Ordinances that properly balance the needs of local residents (natural persons) and Wireless Cos. (artificial persons).

  5. The ACHD would be able to correct the process to allocate roughly equal total time for lobbying to the local residents (natural persons) and to Wireless Cos. (artificial persons) regarding the final language of Ordinance 244. A current imbalance in favor Wireless Cos. (artificial persons) can be established with already-requested public records.

  6. Finally the ACHD would benefit from the judge’s Ruling in Ninth Circuit Case 19-70144, City of Portland et al. v FCCexpected in mid-July, 2020, a Ruling which will likely vacate large portions of — if not all — of FCC Order 18-111 and FCC Order 18-133. The expected Ruling could formally declare the presumptive 60-days shot clocks unlawful, since they are not consistent with the intent of the 1996 Telecommunications Act (see https://scientists4wiredtech.com/legislation/1996-telecommunications-act-conference-report/). Unfortunately, Mr. Price stated in error on May 20, 2020 that Case 19-70144 "is in the briefing stage" (see Appendix A). The truth is that the case was argued on Feb 10, 2020 in Pasadena, CA. The Commissioners can listen to the excellent arguments — including the FCC attorney admitting that FCC 18-133, The Small Cell Streamlining Small Cell Deployment Order is just a presumptive order (a statement of FCC preferences only) and is not self-enforcinghttps://scientists4wiredtech.com/ninth-circuit-case-repeal-of-fcc-18-133/.

In this email/letter, we are reporting the following accurate information about the so-called "small" Wireless Telecommunications Facilities (sWTFs) application process in Ada County, ID:

  • There are currently 75 Installed sWTFs in Ada County.
  • On May 20, Mr. Spears quoted that there are 56 sWTF applications in pre-application and 60 in the process (a total of 116 applications) — see details in Appendix A.
  • There are currently 146 pending sWTF applications in the County.
  • A representative application date for the early sWTF applications is October 2, 2019 (60-day shot clocks on these, or similarly-timed applications have already expired)
  • The application date for at least 50 sWTF applications is May 27, 2020, so 60-day shot clocks for these sWTFs would end on 7/26/2020, assuming these applications are not deemed incomplete (which we can safely assume they are).

Management of these shot clocks and negotiating tolling agreements with the Wireless Cos. for any applications with shot clocks which have already expired is critically important , otherwise we are just going through the motions and reading empty lines as characters in a meaningless performance of "democracy theater".

Idahoans for Safe Technology (IFST) received on May 26, 2020 an email response from ACHD Assistant General Counsel Spears, the full text of which is reproduced in Appendix B).

In IFST’s May 29 email/letter, we are confirming how we choose to proceed, given the (artificial?) constraints proposed in Mr. Spears’ short May 26, 2020 email response.

  1. We are submitting this letter by 4:30 pm on May 29, 2020.

  2. We will be submitting our detailed recommendations for Ordinance 244 by 9:00 am on Monday, June 1, 2020 because we see no material difference between close of business on Friday and start of business on the following Monday.

  3. We do not consider Mr. Spear’s request to "provide your proposed edits in writing to ACHD by 4:30 pm Friday, May 29, 2020" a legal deadline.

We have been seeking sufficient time to engage with ACHD staff on this issue, but to date, the ACHD staff has not done so in any substantive way. We hope the ACHD Commissioners will give clear direction to ACHD staff to correct these dismissive practices on Monday June 1 and we hope that the ACHD will also respond to both of our letters on June 1, 2020.

Thank you.
 

Regards,

— Idahoans for Safe Technology
Hank Allen
Cathy Cooke, BBEC, EMRS
Lynette Daudt, LAc
Sherry Gorrell
Carla Kyle
Rick Walsh


Appendix A

Comments from Scott Spears in May 20, 2020 ACHD Hearing

From https://youtu.be/Nx6bD0FIqd0?t=15m43s

Commissioner Baker:

"Right now, we have applications out there that have none of these restrictions on them. Theoretically there could be a cell tower five feet from someone’s house. How many applications are out there right now that would expire [their respective shot clocks] by the end of June or June 17th?"

Spears/Price:

"There are 56 in pre-application and 60 in the process . . . the Federal shot clock has started at different times for each of those applications."

Commissioner Baker:

"Is there a case before the Ninth Circuit that would have any impact on us?"

Spears/Price:

"Yes, there is . . . that case that was consolidated a year ago in the Ninth Circuit is in the briefing stage. We are trying to comply with the federal law [FCC Order 18-133], until there is a decision that clarifies what is already being challenged [in the Ninth Circuit Case]"


Appendix B

May 26, 2020 Email from Scott Spears, ACHD to Hank Allen, IFST

Date: May 26, 2020 at 2:41 PM
From: Scott Spears sspears@achdidaho.org
To: Hank Allen hank@hdpacific.com
Cc: Bruce Wong bwong@achdidaho.org, Steven Price
sprice@achdidaho.org

Subject: FW: ACHD Ordinance 244 Revision Request

Dear Mr. Allen,

We have considered your request to meet with staff to discuss edits to Ordinance 244 and advise that the requested meeting will not occur as the discussion may be subject to misinterpretation and confusion.

The proper approach is for written communication. Therefore, please provide your proposed edits in writing to ACHD Legal by 4:30 pm Friday, May 29, 2020 and where your edits are deemed relevant and properly within the scope of ACHD’s authority, ACHD Legal will prepare responses to be included in its presentation on June 3, 2020.

Be advised that providing proposed edits per this e-mail will not cause the removal of your previous written comments from the record for Ordinance 244.

Best Wishes,

Scott Spears
Assistant General Counsel
Ada County Highway District