Walnut Creek

The April 7, 2020 Walnut Creek City Council Testimony Will Collect Here:

Public Comment, Round 1

Public Comment, Round 2

Public Comment, Round 3

Agenda Item D — Authorizing the City Manager to execute three (3) Master License Agreements for Small Cell Poll Attachment

CITY COUNCIL REGULAR MEETING AT 6:00 PM – Various Teleconference Locations

April 7, 2020, 6:00 PM – City Council Regular Meeting

From a PC, Mac, iPad, iPhone or Android device: https://zoom.us/j/831824442?pwd=SnZkcWxNR0hQRkh1Y0JLZi9ZN2xSdz09

Webinar ID: 831 824 442 / Password 326300

(To supplement a PC, Mac, tablet or device without audio, please also join by phone: US: +1-669-900-6833)

d. ADOPTION OF RESOLUTION approving and authorizing the City Manager to execute three (3) Master License Agreements for Small Cell Poll Attachments respectively, with Extenet Systems (California), LLC and GTE Mobilnet California LP (Verizon Wireless) and New Cingular Wireless PCS LLC (AT&T).

1. Alice Lee

April 7, 2020
To: Walnut Creek City Officials

From: Alice Lee MD

Re: Postponement of vote on City Manager and MLAs

I attest and affirm that the following statements are true, accurate, and within my personal knowledge.

The City of Walnut Creek must be certain about the exact extent of its powers before signing a Master License Agreement (MLA) with any Telecom company, and before appointing the City Manager so to do.

In Walnut Creek, I work as a physician, dine, shop, and bring my children to a variety of classes and events. Over the past year and a half I have studied and discussed legal and community aspects of wireless infrastructure with local government organizations, including the Contra Costa County Planning Commission, Board of Supervisors, and their attorneys. I have attended other nearby city council meetings on the subject, in Lafayette, Orinda, and Danville.

This is what I’ve observed:

Elected members of local government ask: What are our powers to determine where and how wireless telecommunications facilities (WTFs) are placed and operate in our community?

Telecom representatives and attorneys reply: We have the right to place our equipment on the public right of way, and you have no say in that, according to the California Public Utilities Commission (CPUC). You cannot regulate how we operate our towers, or measure their output regularly because that is too burdensome for us.

Local government tells the community: Our hands are tied.

Here are just a few reasons why this is not true:

The Telecommunications Act of 1996 (TCA), 47 U.S.C. §332 (c)(7)(B)(4), places limitations on local government authority over wireless facilities siting for, “placement, construction, and modification” only. The entire section lists these 3 activities many times, but never includes “operations.” Notably, the word “operations” was included with the other 3 words in the 1995 draft of the law, but was deliberately removed by Congress from the final version because it was considered an excessive limit on local government power. This word matters. You have full authority over how wireless facilities operate, which means you can regulate the amount of power transmitted, and more. You can measure the effective radiated power (ERP) regularly. You can require that the cost of measuring the power be covered by the Telecom company. You can place limits on what hours of the day the wireless facility is on, and limit its power output. A comparison of the draft law to the final TCA is found here https://scientists4wiredtech.com/compare/ . You can moreover require a fuse to disallow automatically any excessive power usage, and a filter to clear from the electrical wires the transients or “dirty electricity” generated by the pulse-modulated microwave radiation transmissions.
Even local government attorneys make consequential mistakes in Telecom law. At a County Planning Commission meeting (12/12/2018, 40:20) Chairman Steele asked if the County Ordinance for wireless facilities restricted annual emissions testing. The county Counsel answered (40:30), “The County is preempted by federal law from regulating the placement and operation of these facilities based on RF emissions.” (Bold added.) The County Counsel misquoted the law, and County officials that incorrect statement was unquestioningly accepted by. However, said statement is dangerous in a liability.
The reliance of Telecom on the Sec. 7901 of the CPUC to assert a right to place wireless facilities in the public right-of-way (PROW) without interference or regulation from local government is based on narrow interpretation of the word “incommode.” Sec. 7901 states that a public utility’s use of the PROW must be “in such manner and at such points as not to incommode the public use of the road…” Telecom has interpreted “incommode” to mean physically obstruct the road. This interpretation has been argued in T-Mobile West LLC v. City and County of San Francisco, where San Francisco asserted that the unaesthetic appearance of wireless facilities would also incommode public use of a road, while T-Mobile argued that incommode should be interpreted to mean a physical obstruction of the road. Specifically, San Francisco argued that, “Beautiful views enhance property values and increase the City’s tax base. The City’s economy, as well as the health and well-being of all who visit, work, or live in the City, depends in part on maintaining the City’s beauty.” This applies to Walnut Creek, where I work and visit often. San Francisco’s interpretation was upheld in a succession of appeals, and eventually by the California Supreme Court decision of this case in April 2019.
The Court states:

”We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly… Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.”

The above points show that federal and state laws provide local governments more power than many local officials have believed, based on what Telecom and even their own attorneys have told them. It only makes sense that City of Walnut Creek be certain about the exact extent of its powers before signing any MLA or appointing the City Manager. Just as the California Supreme Court decision 1 year ago provided a definitive interpretation on a point in the CPUC, after a period of ambiguous and erroneous interpretations which adversely affected many other municipalities, the upcoming 9th Circuit decision about FCC’s powers, expected in just a couple of months, will also provide legal clarity necessary for Walnut Creek to make the best decisions in its negotiations with Verizon, Extenet, and other Telecom companies in the future.
I have expressed no matter of mere concern but solely matters of substance, fact and law.
I appreciate your oath of office.

Sincerely,

Alice Lee, MD

2. Connie Anderson

7 April 2020
To: Walnut Creek City Officials

From: Connie Anderson PhD

Re: AMERICANS WITH DISABILITIES ACT (ADA) REQUEST

Dear City Officials:

This is an official request under the Americans with Disabilities Act (ADA) that you cancel the appointment of the City Manager to any post related to telecommunications, given the lack of knowledge observable on the City’s website of the many problems pertaining to wireless communications and solutions thereto.

As a person diagnosed by medical doctors (MDs) with, respectively, electromagnetic sensitivity (EMS) and toxic encephalopathy, I need to travel to Walnut Creek for clinical appointments with two doctors there. Both of these medical conditions are officially recognized by the US Access Board.

When I am exposed to pulse-modulated microwave radiation such as from wireless transmitters, I experience painful pressure in my head and temples, intense earache, chest pain, brain fog, painful thyroid nodules, overall malaise, and impaired executive functioning. This constitutes physical assault, and as such requires that I avoid these exposures.

Were new wireless transmitters to be placed, constructed and operated in Walnut Creek, I would be blacked from accessing my doctors, or, would have to suffer more assault just to visit them. Under the California Constitution Section 1, it is my right to “obtain safety” and not to be assaulted for visiting my doctors.

For these reasons, an appointment of the Walnut Creek City Manager as a signatory or in another position pertaining to and/or presumptive of master licensing agreements, where said potential agreements do not consider the ADA and CA Constitutional rights of persons with disabilities affected by said potential agreements, would be knowingly to cause, suffer, allow, and/or permit physical harm to me and to others so affected. Such act would constitute a “delinquent act” under Section 28, (c)(2)(e) of the CA Constitution’s Declaration of Rights, “A victim is a person who suffers direct or threatened physical, psychological or financial harm as a result of the commission of a. . .delinquent act.”

Therefore, I officially request the cancellation of any vote and any appointment this evening pertaining to telecommunications.

Thank you for your kind consideration. I will look forward to receiving your notice of compliance.

3. Susan JunFish

April 7, 2020

Dear City of Walnut Creek Manager Dan Buckshi and Council Members:

I am the Executive Director of Parents for Safe Environment (PASE), and hereby submit this letter on behalf of the Steering Committee that has worked since 2002 to protect public health and the environment at both local and California State legislative levels. We have been recognized by the California State Legislature, CA Public Health Department and locally for our work with multiple awards and accolades for protecting public health and the environment.

This letter addresses the proposed Master License Agreement with Extenet Systems (California), LLC and GTE Mobilnet California LP (Verizon Wireless) and New Cingular Wireless PCS LLC (AT&T). PASE is opposed to the placement and operations of 4G-5G antennas in residential neighborhoods.

PASE Steering Committee and Members of our Board of Advisors have reviewed scientific literature and attended medical conferences related to the adverse health effects from telecommunications infrastructures’ microwave radiation exposure. Large numbers of peer-reviewed & published studies point to significant health effects from microwave radiation exposure at the exposure levels that residents would receive from 4G-5G antennas close to homes. Intensity of the transmissions is only one factor bearing on human health and other biological effects. Indeed, duration, in this case constant over potentially decades; modulation, in this case very harmful pulse-modulation; and wavelength, in this case dm, cm and mm wavelengths that are optimally absorbed in human, animal, insect and plant bodies, organs and cells, even approaching resonance, join with yet other factors to increase the number and intensity of adverse effects. Health effects include, without limitation, increased rates of chronic illnesses, cardiac irregularities and higher blood pressure, headaches, seizures, and impairments to memory and learning.

Dr. Martha Herbert, Professor of Neurology at Harvard Medical School in a publication states, “[Radiation] from wifi and cell towers can exert a disorganizing effect on the ability to learn and remember, and can also be destabilizing to immune and metabolic function. This will make it harder for some children to learn, particularly those who are already having problems in the first place.”

According to Dr. Joel Moskowitz, Professor at UC Berkeley, School of Public Health, and Director of the Family and Community Health, “…Studies showed associations of cell towers or mobile base stations and health impacts to children/adolescents, impacting sleep, memory, concentration and learning, lowered verbal and comprehension scores and increased risk of diabetes.” These studies include:

Meo et al (2019): Higher exposure to cell tower RFR was associated with delayed fine and gross motor skills, spatial working memory, and attention among adolescents compared to students exposed to lower levels of cell tower RFR. (13-16 years of age)

Durusoy et al (2017): An association was found between mobile phone use and headache, concentration difficulties, fatigue, sleep disturbances and warming of the ear showing a dose-response.

Guxens et al (2016): Higher residential RFR exposure from cell towers and presence of indoor sources was associated with improved inhibitory control and cognitive flexibility whereas higher personal cordless phone use was associated with reduced inhibitory control and cognitive flexibility. Higher residential cell tower exposure was associated with reduced visuomotor coordination. (5-6 years of age)

Calvente et al (2016): Children living in higher RFR exposure areas had lower verbal expression and comprehension scores and more internalizing and total problems, and were more likely to have obsessive-compulsive and post-traumatic stress disorders, in comparison to those living in areas with lower RFR exposure. (9-11 years of age)

Meo et al (2015): Students exposed to higher cell tower RFR had a significantly greater risk of type 2 diabetes mellitus (p = 0.016) relative to others exposed to lower cell tower RFR. High cell tower RFR was associated with elevated levels of HbA1c and risk of type 2 diabetes mellitus. (12-17 years of age)

Huss et al (2015): Children exposed to higher levels of cell tower RFR had worse sleep duration but fewer sleep disruptions. (7 years of age)

The abstracts for these six studies can be accessed in Dr. Moskowitz’ paper at this link: http://bit.ly/childrencelltower

More scientific evidence can be found at https://ehtrust.org/science/research-on-wireless-health-effects/ .

Just as the pesticide industry is currently being held liable for health damages in the courts, the telecommunications industry may follow this trend. Our fund-limited public agencies will likely become entangled in paying for damages as these companies find loopholes to avoid accountability for their non-disclosure of the known harmful effects of their infrastructures’ operations. We must ensure that our City government does not likewise become embroiled in liability problems for its failure to have done its due diligence in advance of any decision such as is proposed to occur this evening.

I urge you to refrain from appointing the City Manager to handle the proposed contracts, since this position is needed for the very policing of wireless infrastructures in the future. I also urge you to refrain from committing to a contract with the telecommunication prior to a thorough review of the arguments against the placement, construction and operations of 4G-5G antennas. We recommend you hold a hearing that invites experts in the environmental health field to testify (they can do so online) and to inform yourselves with recommended literature by the experts in this field (not funded by industry) so that you are equipped to understand and discuss the public’s position in opposition to 4G-5G antennas in residential neighborhoods – and to provide solutions to these challenging problems. The residents of Walnut Creek expect their leadership to have studied this matter thoroughly and to provide a forum for discussion prior to any decision being made.

Sincerely,

Susan JunFish, MPH
Parents for a Safer Environment
www.pfse.net
susan@pfse.net

"Partnering with Communities to Prevent Exposure to Pesticides and other
Toxicants in Order to Protect Children, Workers, Pets, Wildlife, and the Environment."

E-mailed to: PublicComments@walnut-creek.org

4. Matt Lewis

To the City of Walnut Creek (referenced as “The City”),

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

Federal and state laws, even those in preemption, do not prohibit The City from making reasonable decisions on the placement, construction and modification of wireless telecommunications facilities (WTFs). More importantly, these laws not only do not prohibit The City from making decisions on the operations of the towers and equipment, they effectively require The City to regulate WTF operations.

This policy is governed by cooperative federalism as stated by the Conference Report for the 1996 Telecommunication Act (TCA). This means The City has the authority to put restrictions and requirements on how WTFs are operated. And operations are regulable on any basis, including the health effects of the microwave radiation – even protection of bees and wildlife. However, WTF operations are not mentioned in The City’s information on its site regarding the potential (but untimely) master license agreements (MLAs). Clearly The City is unaware of the laws governing its actions pertaining to WTFs and has apparently been misled both about these laws and the WTF buildout itself. The City is not in a place to be able to appoint the City Manager to proceed in this matter, at least not without the potential for serious liability problems.

In addition, The City have the authority to police noise in the community. Noise is includes “vibration” in The City ordinance, which is what can be and cannot be heard including electromagnetic vibration and noise. Effective Radiated Power (ERP) is noise, and The City has the authority to put restrictions on how much ERP each WTF can use and transmit.

Keeping this in mind, the telecommunications companies have expressly stated their goals are to increase capacity. According to the regulations, this means capacity to make phone calls, not to access the internet. WTFs must be policed / monitored to ensure to allow only enough ERP to cover the increased capacity to make phone calls, not to access the internet. There should be penalties and fines assessed to said companies for exceeding ERP limit that The City has yet to define in an ordinance. Breaches should be fined with an escalating tier for repeat violations, and the value of the fine should be high, so as to be cost prohibitive for these companies.

Policing and monitoring should be done at the source 24 hours 7 days a week by requiring a monitor or fuse to trip and notify The City of breaches. The cost of the monitors or fuses should be passed on to the said companies. In addition, the telecommunication companies should pay The City for the additional administration costs of policing and monitoring the towers and equipment. For multiple violations, for example three, The City should have the right to shut down and take over the tower and equipment, which then could be sold. The payment for administration costs and the fines will increase revenue for The City and ensure that the telecommunication companies are limiting ERP to what is needed for each WTF to achieve the objective of increasing capacity for phone calls. This said, no WTF should be allowed placement until and unless need for it has been established by means of proof of “significant gap in coverage” through phone tests at any and all proposed locations.

For internet, fiber-optics to the premises (FTTP) provides the best service, which Walnut Creek residents deserve, in their due tax payments to The City, as well as their fees paid to various wired and wireless companies over decades’ time. Wireless internet is simply poor engineering, by contrast. This would be another Tacoma Narrows Bridge fail, particularly if fire comes to our area. The City needs to ensure functional internet during emergencies, such that communications will not fail as they did last year in fire zones: any other choice could bring The City severe liabilities.

In sum, The City is NOT prepared this evening to vote to allow our City Manager to be appointed for the tasks regarding MLAs, given the appearance on The City’s site of some false statements – and the lack of certain key truthful information – about relevant telecommunications laws. Allowing the appointment to proceed could thus result in liability.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of substance of fact and law. I accept your oath of office.

Regards,

Matt Lewis

5. Hayuta Jain

To: Walnut Creek City Officials

From: Hayuta Jain

7 April 2020

I attest and affirm that the following statements are true, accurate and within my personal knowledge. My professional Background is as a Test/Research Engineer in Medical Devices and Biotech (with an MS in Chemical Engineering).

I write to draw your attention to the fact that “small cell” is a misleading misnomer, as these transmitters are extremely powerful. These “small cells”, called wireless telecommunications facilities (WTFs) by the federal government, transmit as much energy as does a macro cell tower. That fact comes from an RF Engineer, Lee Afflerback, from CTC Technology and Energy, hired by many cities around the Bay Area.

You can see his testimony, which was entered in the City of Sonoma Public record on 9/12/19. 3:10:24 in the video https://youtu.be/HRYFXx7oNN4?t=3h10m24s
“many people are [wirelessly] streaming video and other services like that . . . each [small] cell is capable of almost putting out the same energy as one macro cell.”
Lee Afflerbach also states at 3:13:22 in the video https://youtu.be/HRYFXx7oNN4?t=3h13m22s
". . . my staff has probably reviewed several hundred of these small cells in the last year . . . and they are all 4G . . . The radios that they are using are the exact same radios that are up on the macro towers. It’s not a different technology . . the same boxes as on macro towers. I see them all the time.”
Rather than jumping blindly into master licensing agreements with large corporations, you need to work on passing local code that limits the Maximum Effective Radiated Power (ERP) in Watts, and that doesn’t allow any WTFs that are unnecessary, as determined by drive-by tests.
The research literature abounds with scientific proof of the harmful effects of the pulse-modulated radiofrequency/microwave radiation from WTFs. Here are a few examples:
Nervous systems disorders: https://www.ncbi.nlm.nih.gov/pubmed/3344267 (Prog Clin Biol Res. 1988;257:119-34),

https://www.sciencedirect.com/science/article/pii/S0891061815000599 (Journal of Chemical Neuroanatomy Volume 75, Part B, September 2016, Pages 43-51).
Insomnia and sleep disorders: https://doi.org/10.1371/journal.pone.0110825 (PLOS ONE 9(10): e110825).
Immune system suppression: https://www.ncbi.nlm.nih.gov/pubmed/19398310 (Pathophysiology. 2009 Aug;16(2-3):157-77).
High blood pressure: https://www.emf-portal.org/en/article/558 (Lancet 1998; 351 (9119): 1857-1858).
Cancer: https://www.ncbi.nlm.nih.gov/pubmed/20429163 (Rev Environ Health. 2010 Jan-Mar;25(1):75-80).

All this is just a grain of all the information out there. Adverse effects occur to all living beings – humans, animals, insects, plants, even single cells. And bees and birds are very badly damaged by this radiation.

These data and studies pertaining to the indisputable effects of WTFs’ hazardous microwave radiation cannot be ignored, in that you have authority under the Telecommunications Act of 1996 (TCA), 47 U.S.C. §332 (c)(7)(B)(4), to regulate the operations of WTFs on any and all bases – health effects, environmental effects, effects on weather and meteorology, historic preservation, electrical outage and emergency needs for wired instead of wireless, and even effects on our local economy.

You are very powerful and owe it to your residents to learn the science and the laws about this field before diving into a very bad set of contracts that could financially and otherwise ruin Walnut Creek.

I have presented no matter of mere concern or any other nonsubstantive matter, but solely matters of substance – of fact and law. I accept your oath of office.

Sincerely,

Hayuta Jain hayuta.jain@gmail.com

6. Jillian Stone

To Walnut Creek City Officials

From Jillian Stone, Walnut Creek

April 7, 2020

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

I do not see anything in any of the materials provided on the City’s website that states that the applicant will provide information to the City verifying that the antennas that are to be placed on poles will be in compliance with CalOSHA rules Section 2946.

These antennas are being placed on a lethal area of the pole called the "supply space,” making the chance of an arc flash significant. This makes it necessary to verify total energy transferred, to demonstrate pole fire safety.

CalOSHA understands and wrote these rules as follows:

CalOSHA Rule Section 2946 “Provisions for Preventing Accidents Due to Proximity to Overhead Lines.”

These guidelines state the following:
a) General. No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to energized high-voltage lines; to enter upon any land, building, or other premises and there engage in any excavation, demolition, construction, repair, or other operation; or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures (including scaffolding, house moving, well drilling, pile driving, or hoisting equipment) unless and until danger from accidental contact with said high-voltage lines has been effectively guarded against.
b) Clearances of Safeguards Required. Except where overhead electrical distribution and transmission lines have been de-energized and visibly grounded, the following provisions shall be met.
(1) "The operation, erection, or handling of tools, machinery, apparatus, supplies, or materials or any part thereof, over energized overhead high-voltage lines shall be prohibited.

As you know, we live in a fire-endemic area and these arc flashes have been proven to be the source of the recent devastating fires in both Paradise and Calistoga. Placing an antenna with the capacity of 1,000 watts or more into that “supply space” creates the strong possibility of another disaster, particularly when multiplied by years and even decades of microwave radiation deployment.

One must also ask whether de-energizing and grounding only while placing the antenna is enough. This area of the pole was never intended to permanently house any machinery, apparatus, or materials. It is logical that housing anything in the supply space could result in deadly consequences.

I also do not see any verbiage within the application that states that the “contractor must adhere to these rules, i.e. making sure that the transmission lines have been de-energized AND visibly grounded.” At a minimum, the City should require the applicant to adhere to all legal regulations pertaining to the pole, including those of Cal OSHA. By leaving this out of the approval process, the City will have failed to complete their necessary due diligence.

This issue is a problem throughout the Bay Area, and grievances are being filed with Cal OSHA and PG&E. Therefore let me relay that the City of Walnut Creek is ON NOTICE.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of substance – of fact and law. I accept your oath of office.

Thank you for your time and consideration.

Jillian Stone, jillianstone81@gmail.com

7. Jodi Nelson

To: Walnut Creek City Officials
From: Jodi Nelson
7 April 2020

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

It is clear to me that the Agenda Report posted on the City site contains false statements, gross omissions, and very unwise financial and other decision-making, potentially leading to one or more unlawful procedures or decisions at the upcoming hearing.
Note that, to the best of my knowledge, no National Environment Policy Act (NEPA) review has been provided by any of the four mentioned carriers pertaining to any of the hundred sites. Therefore the process is not lawful per the DC Circuit Court of Appeals decision of August 9, 2019, under which, according to three of the top FCC NEPA-specializing attorneys, “every [wireless telecomunications facility] must go through NEPA review”.

Here are but a few examples of quotes from the said Report:

“It is expected that each carrier will need to install over one hundred of small cell devices to completely cover the City.” There is no clear basis whatsoever to make this prediction, particularly given that the applications have not apparently been made public.
“Among others, the Council directed staff to negotiate an annual Pole License Fee of $270 but with a contingent license fee in the amount of $1,000 in the event that the 2018 FCC ruling is overturned or invalidated. The original fee was $2,000, but you now are conceding away, without public input, half of that, causing us taxpayers to need to fill any gap. As well, you have not shown that you have a full understanding of how the 2018 Streamlined Rule will impact the City, should it be overturned. There are obvious ways that this would impact the City and less obvious ways that have not been addressed.
“City staff was able to reach agreement with the carriers on these terms. Specifically staff was able to negotiate full reimbursement of administrative expenses in permitting the small cells as well as a $4,000 one-time fee to help recover staff time in preparing the MLA. Additionally, the MLA incorporates the provision above that will require carriers to pay an increased annual Pole License Fee rate if the FCC ruling is overturned.” This is a weak approach, revealing that the City has not even considered other ways to bring in revenue.
“Likewise, federal law prohibits the City from enacting any regulations that would effectively prohibit telecommunications services.” This is not true. Regarding internet in particular, the City has complete control, in that FCC acceded away its Title II regulatory powers over the internet in a DC Circuit decision of October 1, 2019, such that internet transmissions now fall under FCC Title I, unregulated by the federal government. This means that the City can choose, for example, full fiber-optics to the premises (FTTP) and prohibit wireless internet transmissions altogether. This would be the ideal situation for many reasons. Remember that, during fires and inclement weather wireless internet, by it atmospheric tranmissions of microwave radiation would be impeded or stopped altogether, and thousands would be left without any communications, as happened last year – with the horrific result of many unnecessary fatalities – in the N CA fires. Emergencies are the times when internet reliability must be guaranteed, and that can only happen with FTTP.
If the City Manager is ALSO the SIGNATORY to the CONTRACT, he would not be able to act in his due police power, should the companies act illegally, as they have done in other locations, e.g., by transmitting something other than what was proposed in the application! Note that the large companies with which the master agreement is planned are not the holders of insurance. They’ve generally shifted that liability over to the small franchises that lack funds to pay out in the event of a disaster caused by a facility. Remember that this electronic equipment is likely, eventually, to start a fire. The “master licensing agreement” (MLA) scenario presents, also a fundamental problem with your contracting with the large companies while purporting to contract with franchises – the contracts are incoherent thereby, as the parties and their respective liability insurance are unclear.

The City still suffers under the false notion that its hand are tied. Under the 1996 Telecommunications Act, 47 U.S.C. §332 (c)(7)(B)(4), with regard to voice (Title II) transmissions, the City has jurisdiction over “the placement, construction and modification of personal wireless facilities" for any and all bases other than environmental effects. Local officials are moreover authorized and thereby obligated to regulate said facilities’ “operations”, which were never preempted. The operations of wireless facilities are regulable on any and all bases: environmental effects, health effects, historic preservation, property values, meteorology and astronomy effects, and the local economy. Scientists4WiredTech.com/compare
Finally, the City has full jurisdiction over internet (Title I) transmissions, which are, for all activities – placement, construction, modification and operations – regulable on all bases, as listed in the last sentence.

Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208.

I suggest you do as stated in Option 1: the Council could continue the item for additional discussion and/or direct staff to make additional changes to the terms of the MLA. This would prolong negotiations and could delay the small cell deployment process in Walnut Creek.
"I have presented no matter of mere concern or any other nonsubstantive matter, but solely matters of substance – of fact and law. I accept your oath of office."

Signed,

Jodi Nelson jnelson10987@gmail.com

8. Beverly Winn

ATTN: Walnut Creek City Officials
From: Beverly Winn
7 April 2020

RE: ADOPTION OF RESOLUTION approving and authorizing the City Manager to execute three (3) Master License Agreements for Small Cell Poll Attachments respectively, with Extenet Systems (California), LLC and GTE Mobilnet California LP (Verizon Wireless) and New Cingular Wireless PCS LLC (AT&T).

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

Clearly, the hearing today is untimely for any decision-making on the Master License Agreements for Small Cell Poll Attachments in Walnut Creek community, where my grandchildren attend school and I do a lot of my shopping. I have read the deceiving Agenda Report posted on the City Website, which leaves out a huge portion of the truth and is misleading to the public. This posting has statements that are untrue, and has carelessly misrepresented the truth by failing to address and site the law factually and clearly. This will potentially create a domino effect with procedures that are unlawful, decisions that are based in bias instead of fact, and could prove costly to the City budget.

The report states the following untruths and omissions:
“Likewise, federal law prohibits the City from enacting any regulations that would effectively prohibit telecommunications services.” This is unmistakably false. As it pertains to internet in specifically, the City has complete control, in that FCC acceded away its Title II regulatory powers over the internet in a DC Circuit decision of October 1, 2019, such that internet transmissions now fall under FCC Title I, unregulated by the federal government.

“It is expected that each carrier will need to install over one hundred small cell devices to completely cover the City.” What fact is this projection based in? There is no proof that the amount of small cell antennas are required. As the Court of Appeal noted, the word ‘incommode’ means ‘to give inconvenience or distress to: disturb.’ With the being said, all these impacts could disturb public road use, or disturb its quiet enjoyment.

The City should strongly consider the impact and disturbance the hundreds of cell towers from each provider will have on the community it governs and serves. It is clear that the City can choose a full fiber-optics to the premises (FTTP) and ban wireless internet transmissions altogether. This would be the optimal solution for reasons both obvious and precautionary. It is clear that during fires and inclement weather wireless internet, by it atmospheric transmissions of microwave radiation would be interrupted or halted altogether, and thousands would be left without any communications. This is what happened to the majority of the individuals who endured the hardships of the devastating fires in Northern California. So many unnecessary fatalities were the result of utilizing a wireless system with this Master License Agreement for Small Cell Poll Attachments represents. Emergencies are the times when internet reliability must be guaranteed.

There needs to be more time to discuss and make additional changed to the terms of the MLA prior to it’s approval. It is clear that there are several unexplored and fully vetted options to provide the optimal and least “incommode” infrastructure for the public that you serve. The City can choose full fiber-optics to the premises (FTTP) and prohibit wireless internet transmissions altogether.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of
substance – of fact and law. I accept your oath of office.

Signed,

Beverly Winn, senoritabevita@gmail.com

9. Dwight Winn

TO: Walnut Creek City Officials April 7, 2020
FROM: Dwight Winn, Sr., Walnut Creek, CA

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

After reading the Agenda Report posted on the City Website I have been moved to address the falsehoods, lack of facts and misrepresentations presented within the Master License Agreements for Small Cell Poll Attachments. The public deserves full disclosure and this posting has misleading statements that are, in some cases, entirely untrue. In addition, the gap in fact-based information is alarming. This can lead to a gross mishandling of the City’s fiscal, policy and regulatory responsibilities. It can lead to systemic economic issues for homeowners trying to maintain their property values as well. Not to mention liability for the City and officials, in the case of consequences from any improper decision-making this evening.

One of the biggest discrepancies and omissions I would like to bring to your attention is that the report details the fact the City is operating under the false notion that its hands are tied. Under the 1996 Telecommunications Act (TCA), 47 U.S.C. §332 (c)(7)(B)(4), with regard to voice (Title II) transmissions, the City has jurisdiction over “the placement, construction and modification of personal wireless facilities” for any and all bases other than the environmental effects of the radiation, which are positively admitted in that TCA clause. Operations are not preempted, however. As such, local officials are clearly authorized and thereby obligated to regulate said facilities’ “operations”, which you need to regulate on any and all bases: property values, environmental effects, health effects, historic preservation, local economy, meteorology and astronomy effects. www.Scientists4WiredTech.com/compare

Furthermore, It should be noted that the public has not been made aware of any National Environment Policy Act (NEPA) review being provided by any of the four mentioned carriers pertaining to any of the “hundred sites” where they propose attaching small cell antennas. Hence, the process as a whole is not lawful per the DC Circuit Court of Appeals decision of August 9, 2019, under which, according to three of the top FCC NEPA-specializing attorneys, “every [wireless telecommunications facility] must go through NEPA review”.

You are not prepared tonight – or arguably even authorized – to make the decision you had planned to make with regard to the appointment of the City Manager. You must refrain from so-doing.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of substance – of fact and law. I accept your oath of office.

Signed,

Dwight R. Winn Sr. drwinn1@comcast.net

10. Rhyann Williams

To: Walnut Creek, CA City Officials

From: Rhyann Williams, Walnut Creek

April 7, 2020

Dear City Officials:

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

It is clear to me that the Agenda Report posted on the city site contains false statements, gross omissions, and very unwise financial and other decision-making, potentially leading to one or more unlawful procedures or decisions at the upcoming hearing.

Simply put, you are in no legal position this evening to make any decision.

It is expected that each carrier will need to install over one hundred small cell devices to completely cover the city. There is no clear basis whatsoever to make this prediction.

As well you have not shown that you have a full understanding of how the 2018 Streamlined Rule will impact the city, should it be overturned. There are obvious ways that this will impact the city.

The city has full jurisdiction over internet transmissions, which are, for all activities – placement, construction, modification and operations – regulable on all bases, including the health and environmental effects of the radiation. Congress ultimately rejected the national approach and substituted a system based on cooperative federalism.

Please respect that you must not make any decision on the City Manager’s potential appointment this evening.

I have made no statement of “concern” or any other nonsubstantive matter, but solely matters of fact and law. I accept your oath of offices.

Rhyann Williams, rhyannwilliams@gmail.com

11. Corina Kaufman, Walnut Creek

FROM: Corina Kaufman, Walnut Creek

ATTN: Walnut Creek City Officials

7 April 2020

RE: Master License Agreements for Small Cell Poll Attachments respectively, with Extenet Systems (California), LLC and GTE Mobilnet California LP (Verizon Wireless) and New Cingular Wireless PCS LLC (AT&T).

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

The upcoming hearing to discuss the Master License Agreements for Small Cell Poll Attachments has presented legal problems that need to be resolved before any vote takes place. I have listed these problems below. I appreciate your immediate attention to this matter:

AGENDA REPORT:
The Agenda Report posted on the City Website is missing key information and must be comprehensively filled in prior to any decision-making.

Lacking truth, there is no ability to negotiate a lawful agreement with telecom providers.
Officials and residents alike are not able to make informed decisions, due to the falsehoods and the omission of key facts within the report, which need to be corrected prior to any decision-making. These include:

The City Agenda posted misleading statements, some of which can have negative physical and financial impacts on residents.

The federal and state regulations prohibit the City from making reasonable decisions on the placement, construction and modification of cellular towers and equipment. However, officials can make decisions on the operations of the towers and equipment. This is governed by cooperative federalism as stated by the Conference Report for the 1996 Telecommunication act. This means officials are authorized to put restrictions and requirements on how the tower and equipment is operated. The operations of the tower and equipment are not mentioned in the provided information regarding the master license agreement.
In addition, officials of the City of Walnut Creek) are authorized to police the noise in our municipality. Noise includes vibration in the ordinance, which is what can be and cannot be heard including radiofrequency/microwave radiation vibration and noise. Effective radiated power is noise and you are authorized to put restrictions on how much the tower and equipment can transmit. Keeping this in mind, the telecommunications companies have expressly stated their goals are to increase capacity and power. Note that much of this is unnecessary, as Walnut Creek has no significant gaps in mobile voice coverage.
The Council directed staff to negotiate an annual Pole License Fee of $270 *with a contingent license fee in the amount of $1,000 in the event that the 2018 FCC ruling is overturned or invalidated. The original fee was $2,000, but you now are conceding away, without public input, half of that, requiring taxpayers to fill in the monetary gap.
If the city itself owns the fiber-optic cable, it can make money on such “real estate”. This has already been run throughout Walnut Creek, by the Telecom industry using Tax-Payer money!
Options should be provided for public consideration such as a more sustainable communication infrastructure—such as full fiber-optics to the premises (FTTP) which would allow, legally, the prohibition of wireless internet transmissions altogether.

Please be reminded that The California Constitution and Federal Constitution protect us from adverse health effects of the radiation of wireless telecommunications facilities.

California Constitution Article 1 Section 1 states:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

Kindly make no decision tonight, but rather prepare to study his matter seriously and to correct the false statements and omissions on the City website.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of substance – of fact and law. I accept your oath of office.

Signed,

Corina Kaufman

Corinalkaufman@gmail.com

12. Jami Tucker

To: Walnut Creek City Council Members
From: Jami Tucker for Danville Citizens for Responsible Growth – DCRG dcrg925@gmail.com
Re: “Small” wireless telecommunications facilities (WTFs) April 7, 2020

Dear City Council Members,

In regards to the Master License Agreements (MLA) proposal for the April 7, 2020 Teleconferenced City Council meeting to discuss Master Licenses for Extenet (exhibit A), Verizon (exhibit B) and ATT (exhibit C), I respectfully request that this meeting be postponed, so that complete public notice can be given to the community and so that the below items can be considered and discussed in a true public forum. Our community deserves to be fully informed and to participate thoroughly in decision-making about a massive telecommunication infrastructure rollout that will affect them in a number of ways. In addition, please postpose this conversation until 9th Circuit Court of Appeals can rules on its current, related FCC case, which will impact any MLA.

These items need to be discussed in public prior to any decision-making, including the potential appointment of the City Manager as signatory to any MLA:

Electricity used by WTFs would be substantially increased, with risk of fire production, if allowed, as they are reported by industry representatives to have the power of a “macro cell” tower.
Rolling blackouts would affect WTFs and would negate any possible benefit for emergency services.
Emergencies require fiber-optic, copper, and other cable connections for reliability.
Field tests need to be performed in advance to learn whether any licensing agreement is even needed, given the extant levels and distribution of wireless voice coverage in Walnut Creek. Where there is no need, there is no right granted the telecom carrier under the Telecommunications Act of 1996 (TCA).
ADA requirements: As acknowledged by the Food and Drug Administration (FDA), pulse-modulated microwave radiation transmissions adversely affect electronic medical devices (pacemakers, hearing aides, sleep monitors, electronic wheelchairs, CGM devices) and can cause unnecessary impairments, illnesses and deaths thereby.
Health effects of the radiation from antennas has been well established in the scientific literature, exposed by whistleblowers who’ve worked in microwave weaponry, and acknowledged in the TCA preemption clause itself, 47 U.S.C. §332 (c)(7)(B)(4).
Environmental effects of the radiation are likewise well established, exposed by whistleblowers and acknowledged in the TCA: bees and birds in particular are badly affected by the pulse-modulated microwave radiation transmissions.
Housing/real estate values for those who have a small wireless telecommunications facility in front of their homes would have an inequitable decision made for them as to whose home retains value and whose does not.
Regular monitoring of microwave radiation levels is needed to maintain compliance with the FCC guideline by independent publicly-chosen contractors specializing in such a field.
Police powers also need to be established and retained by the City to ensure that a permitted carrier is broadcasting that which was permitted to be broadcast, and not a variant frequency or modality, and that no other violation is found, since the City has authority over the operations of each WTF.
Unless fiber-optics to the premises (FTTP) were chosen over wireless internet, aesthetics of and character would be affected negatively in Walnut Creek as utility cabinets would litter the streets and crowd pedestrians walkways.
Indemnification problems could result in the City and ourselves, the taxpayers, being held responsible for the City’s lack of preliminary investigation of liability capabilities in the large companies to be licensed and their franchise subsidiaries that lack funds for the liability problems that tend to arise with WTFs, as acknowledged, for example, by Verizon in its messages to shareholders.

As you see, many areas need to be discussed in connection with professional in related fields, prior to any jump into decision-making or contract-signing. Indeed, without insurance clearly honed, the decision planned for this meeting is untimely – and dangerous.

I have expressed no matter of “concern” or any other nonsubstantive or immaterial matter, but solely matters of substance – of fact and law. I accept and appreciate your oath of office.

Signed this 7th day of April 2020, __________________________

13. Josephine Robertson

ATTN: Walnut Creek City Officials
FROM: Josephine Robertson, Walnut Creek
7 April 2020

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

The upcoming hearing to discuss the Master License Agreements for Small Cell Poll Attachments has revealed serious legal problems. Therefore a vote cannot lawfully proceed. The Agenda Report posted on the City Website lacks truth behind its ability to negotiate a lawful agreement with these telecom providers. The report does not present full transparency. Instead, it hides the truth and in most cases fully omits the most important facts.

The City Agenda posted misleading statements that can have a negative financial impact on its citizens.

“Among others, the Council directed staff to negotiate an annual Pole License Fee of $270 *with a contingent license fee in the amount of $1,000 in the event that the 2018 FCC ruling is overturned or invalidated. The original fee was $2,000, but you now are conceding away, without public input, half of that, causing us taxpayers to need to fill any gap.

I do not see the benefit of paying more for a service that in the past has proven to fail in times of emergencies. Citizens of Walnut Creek need their safety secured and guaranteed. We do not want to find ourselves in the same predicament of last year’s N. CA fires where communication was unreliable or completely stopped during the raging fires that took so many Californian’s lives.

Should you wish to put your efforts into a more sustainable communication infrastructure—such as full fiber-optics to the premises (FTTP) and, by lawful means under FCC Title I, prohibit wireless internet transmissions altogether— I can stand firmly behind that decision.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of
substance – of fact and law. I accept your oath of office.

Signed,

Josephine Robertson, rjossee@gmail.com

14. Blessings Robertson-Winn

From: Blessings Robertson-Winn DoingBigThings@aol.com
To: Jodi Nelson jnelson10987@gmail.com
Sent: Tue, Apr 7, 2020 12:35 pm
Subject: B.A. Robertson Letter to Walnut Creek

ATTN: Walnut Creek City Officials FROM: B.A. Robertson

7 April 2020

I attest and affirm that the following statements are true, accurate and within my personal knowledge.

I am deeply concerned that the upcoming hearing to discuss the Master License Agreements for Small Cell Poll Attachments in my community is biased due to the Agenda Report posted on the City Website which lacks full disclosure. This posting has misleading statements that are untrue, and has overt omissions that can lead to decisions that are not based in fact, and can potentially create procedures that are unlawful and fiscally sensible. The report states the following untruths and omissions:

“It is expected that each carrier will need to install over one hundred small cell devices to completely cover the City.” The forecast for the amount of cell coverage has no clear basis and comes off like a random projection.

“Likewise, federal law prohibits the City from enacting any regulations that would effectively prohibit telecommunications services.” This is completely False. The truth is that the City has complete control as the FCC caved in and gave away its Title II regulatory powers over the internet in a DC Circuit decision of October 1, 2019, such that internet transmissions now fall under FCC Title I, unregulated by the federal government. Hence, the City can elect to design a less fiscally disturbing, and safer internet system utilizing full fiber-optics to the premises (FTTP) and prohibit wireless internet transmissions altogether.

Due to the nature of wireless internet being conducted via atmospheric transmissions of microwave radiation, the City will in fact create potentially catastrophic situations in times of emergencies. As we learned last year during the Northern CA fires, wireless technologies are not a reliable source of communication. The wireless signals were interrupted and, or disconnected leaving thousands of citizens without any communications—many of which lost their lives. These unnecessary fatalities could have been avoided with FTTP. We must learn from the mistakes of our past and elect to guarantee citizens their safety. The only way is to ensure that guaranteed, reliable internet access are available in order to prevent further disasters, injuries and fatalities. This can only happen with FTTP.

I have presented no matter of mere concern or any other non-substantive matter, but solely matters of substance – of fact and law. I accept your oath of office.

Signed,

B.A.Robertson DoingBigThings@aol.

15. Paul G

I attest and affirm that the following statements are true, accurate within my own personal knowledge. These comments are relevant to all residents of the Walnut Creek dealing with so-called "small" Wireless Telecommunications Facilities, misleadingly branded "Small Cells", which is a misnomer because the maximum Effective Radiated Power Output from"Small Cells" in residential neighborhoods that reaches bedrooms is much higher than from Macro Cell Towers that are 3,000 feet away.

Small Cells are, therefore, Macro Towers. In short they are not nearly small enough.

Consider "What is Allowed" vs. "What is needed" for Telecommunications Service for 1/2 miles radius of the sWTF.

Allowed: 50 feet or less in height vs. Needed: any height that does the job
Allowed: Equioment volume of 31 cubic feet or less vs. Needed: size of a Wi-Fi Router
Allowed: Antenna 48" high vs. Needed: Antenna 4" high

You are allowing Macro Towers to be installed right outside of people ‘s homes because you are not regulating all three key variables: Vertical, Horizontal, Power. If you haven not regulated all three, then you have achieved nothing.

Why is that?

The RF Engineer in Sonoma, CA already admitted the following in the Public record on Sept 12, 2019.

Lee Afflerbach from CTC Technology and Energy:

"each small cell is capable of almost putting out the same energy as one macro cell. The radios that they are using are the exact same radios that are up on the macro towers. It’s not a different technology . . . the same boxes and antennas as on macro towers. I see them all the time."

Walnut Creek can therefore power off all Small Cells and unneeded WTFs in the Walnut Creek during the COVID-19 commumnity spread.

These sWTFs are unnecessary, ancillary and frivolous sources of entertainment; they are not needed for making emergency calls — we could already do that in Walnut Creek — without any of these sWTFs.