Mission Viejo Preparation
The key documents to read, understand and apply are these:
- Mission Viejo — General Plan
- Muni Code Chapter 9.22. — Noise Standards
- Muni code Chapter 9.30. — Antenna Standards
- Feb 10, 2020 Planning Commission agenda and staff report
My Street, My Choice!
- Calls to action could gather here –> http://mystreetmychoice.com/missionviejo.html , equipped with https://scientists4wiredtech.com/napa/mvj-form/ but I have not heard back from anyone if such a page/form is desired.
One option is to recommend to MIssio Viejo to pass a six-month Moratorium on the processing of additional Wireless Telecommunications Facilities (WTF) applications to give your City the time to pass either an Urgency and/or Final Wireless ordinance. Doing so might attract a lawsuit by the Wireless Carriers for ignoring the presumptive position of the FCC as stated in FCC 18-111,
IV. DECLARATORY RULING., p.140
A. Background, p.141
B. Discussion, p. 144
- Moratoria Violate Section 253(a), p.145
- Moratoria Are Generally Not Protected Under the Section 253(b) and (c) Exceptions, p. 153
. . .by the time the lawyer communications and pre-trial motions have been filed. we will have a decision from the Ninth Circuit judges on Case 19-70144
By listening to the video of the arguments made on 2/10/2020, I believe that large portions, if not all of 18-111 and 18-133 will be vacated by the Ninth Circuit (understanding that no one can accurately predict the future).
Your ordinance could state that WTFs must be a minimum height (200 feet), which would eliminate the small WTF option. That might work.
Fiber optic to the Premises (FTTP) has been the best solution for the last 30 years. The Wireless industry relies on Fiber Optic for backhaul; they just make more money by stopping short of extending the fiber optic to homes and selling an unregulated, data-capped wirelses service at top dollar. It is just pure greed.
>>> On Feb 21, 2020, S4WT wrote to Mission Viejo residents:
And now for the good news about the first two sWTFs that AT&T has proposed for Mission Viejo:
Environmental Assessment is required by FCC NEPA rule § 1.1307, so all processing of applications must stop
In audio recording of 2/10/2020 Planning Commission meeting:
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At 2:27:53 – applicant admits small cells’ main purpose is not to handle phone calls, but to handle data transmissions (unregulated "information services")
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At 2:39:39 – Hammett & Edison reads lie in IEEE 2019 RF-Exposure guideline recommendation
From 2/10/2020 Staff report
- P. 102 FCC Small Entity Compliance Guide
- p. 116 Hammett & Edison Inc. RF Report for CRAM_RLOS_MSVJ1_016A
- Galtronics Model GQ2410-06621 24" tall omnidirectional antenna; maximum effective radiated power in the report is 88.8 Watts ERP in any direction
- At highest point, average of 160,000 µW/m², which can be a peak of 16,000,000 µW/m² (100x higher) — or more ( see https://scientists4wiredtech.com/2017/12/broadband-fail-palo-alto-1/)
Basis for FCC Complaint
A. Pole Dimensions for each:
- 33.5-foot tall "typical" streetlight pole.
B. Antenna Shroud Dimensions:
- 2-foot Galtronics Model GQ2410-06621 canister antenna on the top of the pole
- Therefore, lowest part of antenna shroud is 31.5-feet off the ground (9.6 meters is less than 10 meters)
C. Antenna: Galtronics Model GQ2410-06621 Specs —> web | pdf
10-port small Wireless Telecommunications Facilities (WTF) antenna, 360° Horizontal Beamwidth, fixed tilt.
- 4x 1695–2180 MHz
- 4x 2305-2360 MHz
- 4x 3550-3700 MHz
- 2x 5150-5925 MHz
D. Maximum Effective Radiated Power of Antenna is greater than 1,000 Watts ERP
| Frequency | 1695–2180 | 2305-2360 | 3550-3700 | 5150-59250 | Total | |
|---|---|---|---|---|---|---|
| Max. Input Power (Watts) | 100 | 100 | 50 | 1 | 256 | |
| Antenna Gain (dBi) | 8.9 | 8.3 | 8.0 | 5.5 | ||
| Maximum ERP (Watts) | 890 | 830 | 400 | 5.5 | 2,125.5 | |
| A: 3 × 120 ° ERP (Watts) | — | — | — | — | 88.8 × 3 = 266.4 | |
| B: 6 × 60 ° ERP (Watts) | — | — | — | — | 88.8 × 6 = 532.8 |
E. § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.
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.
From 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.
Additional Analysis for GQ2410-06621 —> web | pdf
First, consider what the antenna can do, since there is no control over which radios a AT&T might bring back in the future, per the 2012 Spectrum Act (i.e. Section 6049 (a))
If AT&T’s claim is that all it needs is 85.4 Watts per sector (3 x 85.4 = 256.2 Watts ERP), then match these radios up with an antenna that has no chance of exceeding 85.4 Watts per sector (3 x 85.4 = 256.2 Watts ERP); the GQ2410-06621 can easily output 2125 to 4250 Watts of ERP, which, of course, is unnecessary and overkill in more ways than one.
Reject this antenna and bring back the smallest antenna that will provide Telecommunications service (calls) for the stated cell size (1,000 feet radius?). Such an antenna will be only 4 inches tall and output more like 0.1 Watt ERP, as explained here — in order to preserve the quiet enjoyment of streets.
Maximum Effective Radiated Power of GQ2410-06621 is greater than 1,000 Watts ERP
| Frequency | 1695–2180 | 2305-2360 | 3550-3700 | 5150-59250 | Total Watts ERP |
|---|---|---|---|---|---|
| Full Max. Input Power (Watts) | 100 | 100 | 50 | 1 | 251 |
| Antenna Gain (dBi) | 8.9 | 8.3 | 8.0 | 5.5 | |
| Full Maximum ERP (Watts) | 890 | 830 | 400 | 5.5 | 2,125.5 |
| 3 dB override Max. Input Power (Watts) | 200 | 200 | 100 | 2 | 502 |
| Antenna Gain (dBi) | 8.9 | 8.3 | 8.0 | 5.5 | |
| 3 dB override Full Maximum ERP (Watts) | 1,780 | 1,660 | 800 | 11 | 4,251 |
| Claim A: 3 × 120 ° ERP (Watts) | — | — | — | — | 88.8 × 3 = 266.4 |
| Claim B: 6 × 60 ° ERP (Watts) | — | — | — | — | 88.8 × 6 = 532.8 |
Second, since since the effective height of the WTF is 24 feet above ground, the bottom edge of the antenna is 23 feet above the ground which is 10 feet less than 33 feet (10 meters)
Third,, these facts trigger an automatic requirement for an Environmental Anaysis per NEPA Rule § §1.1307. The Feb 20, 2020 statements by Erica Rosenberg and the rule are the same.
Erica Rosenberg, FCC:
"If one of those circumstances are met, then an Environmental Assessment is triggered. In other words, if the RF is above our limits, they need to do an Environmental Assessment.
In FCC Rule §1.1307, it states:.
"Commission actions granting . . . licenses to transmit . . . require the preparation of an Environmental Assessment (EA) if exposure to levels of radiofrequency radiation [are] in excess of the [FCC] limits."
Then in Table 1 of FCC Rule §1.1307:
(b)(1) "Evaluation required if Non-building-mounted antennas [have] height above ground level to lowest point of antenna <10 m and total power of all channels >1000 W ERP.
Your attorney, as in this letter, could asks for the following:
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To deny small cell facility applications based on aesthetics and the preservation of property values.
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Require applicants to have third-party insurance which covers harms from pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures.
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Includes a five-year plan of all planned so-called "small" Wireless Telecommunications Facilities (sWTFs) locations in your town.
Adapted from a Letter to Mission Viejo, CA Planning Commission
April 14, 2020
Re: Planned Development Permit PDP-2019-311 amd Planned Development Permit PDP-2019-312 Amended
Dear Chairman Breton, Planning Commissioners, and City Attorney,
I am an environmental attorney, representing Zen Honeycutt, a Mission Viejo homeowner and the Executive Director of Moms Across America.
The above applications were first considered at the Planning Commission meeting on February 10, 2020 and were continued at the request of the applicant to March 9, 2020 which were again continued due to the Shelter in Place Order, until May 11, 2020. I write to you to urge the Planning Commission to reject these applications at the May 11 session.
Mission Viejo is a unique city in that its architectural integrity has been accomplished by design, including the undergrounding of utility lines, including power, telephone and cables. The light in the City were designed to resemble mission bells with a curled flourish atop each pole to add a historic element to the design. The integrity of this design element would be destroyed by placing antennas from any so-called "small" Wireless Telecommunications Facilities (sWTFs) atop any of these light poles.
The historic character of the City, which is world-renowned, would further be diminished by erecting new poles festooned with wires and topped by sWTF antennas. Such proposals should be rejected by the City based on architectural and design aesthetics.
The City should reject the above applications and the update the local ordinance to require new Telecommunication Utilities to be undergrounded, based on aesthetics of long term, historical city planning, and preservation of residential character and the city residents’ property values.
Further, if the City and its residents wish to have these 4G/5G sWTFs by the hundreds throughout the city, the city must do everything in its power to protect, not only the health of the residents, but the economic exposure of the City. Thus, all permits to install such equipment should require the permittee to carry carry a Policy of Pollution Insurance, naming the City as an additional insured.
Such insurance should carry $1 million, per occurrence, coverage for harms, illnesses and injuries caused by pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures. This would protect the City, its commissioners and council members, from RF-EMR harm lawsuits and the City coffers from being depleted due to lawsuits for harms caused by constant RF-EMR exposures to its residents.
Potentially, the amount of damages (likely in the tens of millions of dollars) from lawsuits by residents for harms due to the constant RF-EMR exposures forced upon them by the City’s decision to allow the installation of the sWTFs, is a much greater threat to the City than the lawsuits from the Telecoms for permit approval.
General liability policies of insurance carry an exclusion which defines RF-EMR and EMF exposures as a form of pollution and excludes it from coverage. Thus, the Telecom company must produce proof of pollution coverage which includes coverage for RF-EMR/EMF induced harms, illnesses and injuries — in order to adequately protect the City. Indemnity is a form of "self-insurance" offered by the Telecom companies which may only be viable depending on the cash reserves of the permittee and, therefore, should be required of the applicant, as well.
Liability of the City for Denying the Permits
The City of Mission Viejo needs to understand its power to control its own destiny. The cities of Ross, Mill Valley and Fairfax, in Marin County, have enacted ordinances that have limited or prohibited small cell installation in residential neighborhoods. These cities have not been sued. The threats from the Telecom companies that any attempt to restrict sWTF deployment will result in lawsuits are hollow and specious.
The Telecommunications Act of 1996 (1996-TCA), codified as 47 USC 332(7), establishes limited federal preemption over only the placement, construction and modification of personal wireless facilities. The 1996-TCA provides for no monetary remedy for violations of the Act. In other words, if the City prohibits deployment for the "wrong" reason, the only remedy in court is an injunction requiring the City to issue a permit.
Importantly, the Telecom companies cannot sue the city for monetary damages, penalties, or even attorney fees, if they prevail.
Calif. Government Code Section 818.2
"A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law."
Arteberry v. County of San Diego (App. 4 Dist. 2010) 106 Cal. Rpt.3d 743. 182 Cal.App.4th 1528.
"County’s statutory immunity for damages for delaying the approval of an application to install or use a solar energy system precluded landowner from relying on county’s alleged violation Of the statute prohibiting such delay as a failure to discharge a mandatory duty supporting recovery of damages from county under the Tort Claims Act (TCA)".
Section 1983 remedies, including the right to attorney fees for the prevailing party under §1988, are unavailable in suit to enforce rights granted by the 1996-TCA; the Act’s conferral of right to sue is to entitle successful plaintiff to usual remedies, which do not include attorney fees. (PrimeCo Personal Communications, Ltd. Partnership v. City of Mequon, CA. 7 (Wis.) 2003, 352 F.3d 1147).
The City Can and Should Deny the Current Applications.
Furthermore, since the applicants to erect unsightly and architecturally disruptive cell towers and the application should have:
- a certificate of insurance with coverage for RFE-EMR/EMF induced harms, illnesses and injuries,
- a five-year master plan for for the installation of sWTFs in Mission Viejo, including contingency plans in response to the deployment of Starlink and other satellite-based wireless systems.
Please note that Starlink recently received FCC-approval and licenses for 1-million ground sWTF antennas.
Will the applicants’ 4G/5G sWTFs become obsolete and be abandoned? Will they need to be replaced by new satellite antennas? These questions should be addressed in the application materials.
In closing, the City should deny the applications and maintain Mission Viejo as one of the most beautiful and safest cities in America.
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