Attorney Robert “Tripp” May’s Disservice to the City of Orinda, CA

Orinda Moves Toward Densified 4G/5G

Adapted from an article by Sora O’Doherty, Oct 2, 2019 | Lamorinda Weekly article here.

Orinda is taking steps required by the federal government to deploy 4G/5G so-called "small" Wireless Telecommunications Facilities (sWTFs), but hopes to do only the minimum because the city is buying into a false Wireless industry narrative that the City might face an expensive law suit if they pass protective Wireless Ordinance like this one in Petaluma, CA.

"Nothing could be further from the truth", as explained by the top Telecom attorney in the United States, Andrew Campanelli, in this Youtube video →

Attendance was low at the Sept. 17 city council meeting, the second on the subject, with those speakers who did attend providing substantial written evidence about the public safety, privacy and property value harms from Densified 4G/5G infrastructure. The council also heard from Dante Williams, a representative of Verizon, and Kathleen Schwallie, an attorney who addressed controversial elements of the proposed approval process.

Outside counsel Robert "Tripp" May III, Esq. of Telecom Law Firm was present to explain to the council and the public the progress being made to accommodate a recent federal regulatory Order FCC 18-133 requirements that eliminate city discretion re: deployment of Densified 4G/5G infrastructrure, which is only a list of preferences and not a self-enforcing order.

From a web page dedicated to US Court of Appeals Case No. 18-72689 Local Govt. v. FCC | Andrew Campanelli states:

Attorney Andrew Campanelli at 30:29 in this July 23, 2020 video:

"You are probably going to hear someone [on a City Council] say, ‘Oh no, we are preempted, our hands are tied.’ I hear that all the time.

There is a [September 2018] interpretive Order [FCC 18-133] . . . which I think is ineffective . . . Federal courts — for twenty years — have interpreted the language in the Telecommunications Act that says when an effective prohibition occurs. These cases have gone up to the US Courts of Appeals for the 2nd Circuit and all the other Circuits.

Federal judges are bound by these [No Significant Gap in Telecommunications Coverage and Least Intrusive Means] tests. So if some [company] wants to claim,

‘you [the City] must give us an approval, even if it violates your code because saying no would be an effective prohibition’,

. . . and you [the City] says no, [the company] would have to file a law suit in Federal court and the Federal judges are bound by the Circuit Court Rulings which say an effective prohibition occurs when the company proves there is a signifcant gap and the proposed installation is the least intrusive means.

The [company] can’t meet that test in the [densified 4G/]5G rollout, so the Wireless Industry went to the FCC and got them to issue a new "interpretive" Order [FCC 18-133] and here is what the Order says . . . after 24 years, we the FCC interpret that that effective prohibition language meaning that applicants don’t have to prove that there is a significant gap in service and they don’t have to prove — contrary to 20 years of Federal Court decisions — they don’t have to prove that their installation is the least intrusive means of remdying that gap. All they have to say is ‘they need this facility at the location they want at the height they want to either improve an existing service or to add a new service.’

I think this has no effect on a town’s ability because . . .

  1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
  2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
  3. The FCC can’t strip local governments of 20 years of local zoning regulations

The Wireless industry is going from town to town, showing this [FCC 18-133] as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

It is not up to the FCC to put words in the Telecommunications Act that aren’t there.’

So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says ‘You have to give [this permit] to us because of this [September 2018] interpretive Order’ — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all."

With only three council members present, an ordinance was introduced and first reading was waived. At an upcoming meeting, the ordinance will go to a second reading, and the resolution that contains the policy on sWTF constuction will come back to the council with the changes the city council discussed.

May explained that the ordinance amends Orinda’s municipal code,

  • adding chapter 12.10 on small wireless facilities in the public rights-of-way, and
  • amending chapter 17.34 by adding two new sections on eligible facilities requests and small wireless facilities in the public rights-of-way.

Attorney May was apparently not aware that the category sWTFs lost its definition in the August 9, 2019 Ruling in the US Court of Appeals DC Circuit Ruling in Case No. 18-1129: Keetoowah et al. v FCC, so now WTFs of any size and any "G" must be considered the same and each requires National Environmental Policy Act (NEPA) review, before they can be constructed, according to the FCC Attorney, Erica Rosenberg.

The resolution includes an approved pole license agreement form, and authorizes the city manager to execute agreements for the installation of small wireless facilities on city-owned vertical infrastructure in the public right-of-way.

This effectively creates a City aproval process that is disadvantageous to Orinda residents because it turns a discretionary process (with public, notification comment and deliberation) into an administrative process (without public, notification comment and deliberation).

May reiterated his remarks at an earlier meeting that changes in state and federal law affect the city’s ability to regulate small wireless facilities.

It is surprising May takes this position, given the Rulings in the following recent cases:

  • Link to 2019 Keetoowah et al. v FCC re loss of Environmental Review Exemption and Definition for sWTFs
  • Link to 2019 Mozilla et al v. FCC re: Net Neutrality and Lack of FCC State Preemption
  • Link to 2019 CA Supreme Court Ruling in T-Mobile vs San Francisco re: Cities’ duties to protect the quiet enjoyment of streets
  • Link to 2020 IRREGULATORS v FCC re: Illegal Cross-Susidies from Wireline State Utiltities to Wireless Carriers
  • Link to 2020 Local Govt. v FCC re: FCC 18-111 and 18-133 So-called "small" Wireless Telecommunications Facilities (sWTFs) Deployment Order
  • Link to 2021 Environmental Health Trust, Children’s Health Defense et al., v. FCC re: RF-EMR Guideline Scam

May falsely states that if eligible 4G/5G facilities meet certain federal criteria the city must approve them and if the city fails to act, May explained, the law deems them granted anyway.

The preceding is a false statement. The only deemed granted remedy appears in a CA State bill, AB.57 re: shot clocks for wireless telecommunication facilities and that is 150-days for new facilities and 90-days for "eligible facilities" requests. Nothing in the state bill affects the local zoning authority.

He added that there is "not a lot of clarity" about what would happen if a facility were deemed approved owing to inaction by the council.

May gets this wrong, as well.

AB.57 ‘s language is clear.

New section 17.34 gives the criteria that allows staff to determine if an application qualifies for this type of treatment. If it does, May says, the section sets out a process by which the application can be approved, with the conditions that the city would normally apply, to avoid any problems with the deemed approved remedy.

Co-locations and modifications to existing structures are approvable "by right," he added.

. . . this is the Tripp May statement which has "not a lot of clarity" . . . a right to do what, exactly?

"Small wireless facilities" is a special regulatory term adopted by the FCC, but they are not necessarily small, May explained.

In fact, there is no properly-established definition of a Small Wireless Facility because the FCC did not sufficiently respond the mandate of the DC Circuit Judges ruling in Case No. 18-1129, so any "special benefits" envisoned for "small wireless facilities" in FCC Orders 18-111 and 18-133 are now without foundation. As these FCC orders are only presumptive (lists of preferences) and not self-enforcing, the "preferences" can each be challenged in court.

The attempted shorter "shot clock" (timeline for approval) of 60-days is now without foundation because such a preference of a shortened shot clock was based on the assumption of "no environmental review of sWTFs needed." Since the environmental review exemption for sWTFs was struck down by the DC Circuit judges in their Case No. 18-1129, then there is no longer any basis for this preference.

May also said that "the city cannot apply subjective criteria."

This, unfortunately, is also wrong, per the Aug 12, 2020 Ruling in Local Govt. v FCC. The Ninth Circuit Court of Appeals vacated portions of the Sept 2018 FCC Order 18-133, the Streamline sWTF Deployment Order:

See link to Ninth Circuit Court of Appeals Case No. 18-72689 City of Portland et al. v FCC re: repeal of FCC Orders 18-111 and 18-133:

"We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be ‘no more burdensome’ than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).
We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

  • GRANT the petitions as to those requirements,
  • VACATE those portions of the rule and
  • REMAND them to the FCC.”

There are also limitations on fees, essentially taken such facilities out of the zoning process. The federal government is, according to May, asking cities to handle them faster with less authority to change them and with fewer resources.

May seems to be behind the times on each of these points. In reality, the so-called "small" Wireless Telecommunications Facilities (sWTFs) deployment agenda is crumbling before our very eyes. When May maintains that "local authorities’ hands are tied’ he is merely repeating the wireless industry’s agenda instead of providing objective legal advice to cities that can protect the local residential character and quiet enjoyment of streets by preventing inappropriate installations of sWTFs throughout Orinda.

May did note that these rules are subject to a legal challenge, in which Telecom Law Firm is representing the League of California Cities and several other cities, but it has not yet been decided . . . the case was decided on Aug 12, 2020 (see above).

Telecom Law Firm was tangentially part of case Case No. 18-72689, but their attorneys were not among the top attorneys selected to argue the case on Feb 10, 2020.

The top attorneys selected to argue the case were, as you can see here:

  • Link to Joseph Van Eaton, Best Best & Krieger
  • Link to Sean Stokes, Baller, Stokes & Lide
  • Link to Eric Gotting, Keller and Heckman, LLP
  • Link to Eric Langley, Langley Bromberg

May suggested that there might perhaps be a decision by the middle of next year. . . . the case was decided on Aug 12, 2020 (see above).

May talked about various cases concerning the health effects of pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR). There are a lot of different agencies that can challenge the statute, he said, but not the city. He added that he expects that in the next month or two the FCC will declare Densified 4G/5G to be perfectly safe.

Of course, the FCC can make no such declaration, so we are surprised that May would offer such propaganda.

After discussions with stakeholders both from industry and the community, some changes have been made. The more notable include:

  • Pre-submittal appointments for the applicant are encouraged, but not required
  • Following submittal of a detailed application, notices will be mailed to all properties within 300 feet of the proposed site.
  • More detailed application requirements, including an affidavit under penalty of perjury that the radio-frequency compliance statements are correct;
  • Requiring an environmental impact statement (what level of CEQA treatment a project is required to undergo);
  • Requiring a structural analysis and making some changes to the pole license agreement allowing some flexibility in how it is implemented.

Community meetings, May said, while strongly encouraged, would trigger the shot clock and would therefore have to be voluntary.

This is another false statement. Only the presentation of an application starts a shot clock. The voluntary or mandatory status of required community meetings is a local decision. Full stop.

If the application meets the requirements and is in compliance with radio-frequency rules, it will be approved by the public works director.

This is the unnecessary and disadvantageous process adopted by Orinda because they did not receive sufficient legal advice from Tripp May and others.

Following approval, any interested party may appeal within seven days. The only basis for an appeal is if the facility is not compliant with FCC rules.

Well, that is unnecessary. There could be many bases for appeals in a protective ordinance.

For other issues, such as a facility not being compliant with noise requirements, not maintaining their records, or not cleaning up their facilities, the city has the ability to bring enforcement actions.

Mayor Inga Miller noted that while she supported the resolution, the city was put into a difficult position by the federal government on a hard issue.

This is also untrue. The 1996 Telecommunications Act (1996-TCA) clearly sets up a cooperative federalism where the local government has most of the authority of the placement, construction. modification and operations of Wireless Telecommunications Facilities (WTFs) of any size and any "G".

Vice Mayor Darlene Gee agreed that it was a challenging balancing act, citing a common propaganda statement, when she said:

"We can’t just refuse [applications] or we’ll be sued, and we can’t afford to defend suits,"

But Gee suggested that the city can raise issues with the state and federal governments and, over time, see how things go.

The truth of the matter is that the buck stops with each Local City Council. They must provide public safety regardless of any federal or state laws that may constrain them.

Other items that were discussed included the method of notice to the public and whether or not there should be a comment period before the director makes a decision. It was decided that the Orinda Outlook could be used for widespread notice of 4G/5G applications, and that notices can also be posted on the specific poles on which the facilities are proposed to be added, so long as the notices are also later removed.

May explained that the very short time frame would make it very difficult for staff to act on applications if there were a pause for comments before approval, although he added that it wasn’t impossible to implement.

Of course, the 60-day shot clocks have no foundation at this point, so no City has to abide by them.

Verizon representative Dante Williams expressed the company’s concerns about subjective criteria, and said the company would prefer a straightforward checklist approach. Some conditions, he suggested, could make it infeasible to cover all of Orinda. Undergrounding may be technically infeasible.

The law says otherwise, Mr. Williams. Feasibility is mentioned nowhere in Telecom statutes.

Attorney Kathleen Schwallie appreciated working with the staff. She was pleased with the suggestion that the internet could be used for notice. "That would be the cheapest and easiest," she said, adding, "We do not want to create more complexity."

She still favored a comment period before approval, but suggested perhaps four days instead of seven. She also talked about potential conflicts between these regulations and the Americans with Disabilities Act.

Yes, conflicts between the local ordinance and the following Federal Acts are real and substantive:

  1. Americans with Disabilities Act
  2. Fair Housing Act
  3. National Environmental Policy Act

Attorney Kathleen Schwallie said:

"Although there is a very limited time to do a complex job," she urged, "it shouldn’t limit the right of the public to participate. The public can raise the issues, the council can then decide."