New 4G/5G Poles Don’t Belong in Tucsonans’ Front Yards

Adapted from a Tucson Daily article, Feb 21, 2021 | Original article here.

Motion Assigns Tucson Wireless Ordinance Revision to City Manager

Feb 23, 2021 City of Tucson City Council Study Session (view for 20 mins)

Public Comments re: Tucson Wireless Ordinance Revision

Feb 23, 2021 City of Tucson City Council Regular Session (view for 15 mins)

The first sign you see may be men trenching and boring the ground along the edge of your street. Or you may be lucky enough to get a flyer on your door handle, or a knock on your door to let you know they’re coming. Before you know it, a gleaming, 35-foot cell pole stands on your street — maybe right in front of your house.

WAM: Does it have to be this way? No. This is only happening because the City of Tucson has not passed a sufficiently protective Wireless Telecommunications Facilities (WTFs) ordinance. Under the 1996 Telecommunications Act (1996-Act), and the case law in the US Court of Appeals, Ninth Circuit, the City of Tucson has the duty and obligation to do the following:

  1. Regulate the operations of personal wireless service facilities (per US Code, Title 47 § 332(c)(7)Preservation of local zoning authority)
  2. Ensure that no WTF is placed, constructed or modified if it does not “use the minimum power necessary for the communication desired” (per US Code Title 47 § 324Use of minimum power)
  3. Only approve WTFs that are needed based on the applicant placing substantial written evidence in the public record that a significant gap in Carrier-specific wireless telecommunications service exists in the target area (per the 2005 ruling in MetroPCS v San Francisco )

See more here: from Andrew Campanelli, Esq. →

In Tucson, in midtown, on the far south side and on the near northwest side, the process has been playing out for months. Telecommunications companies like Verizon and AT&T are pulling permits and hiring contractors to put the poles up fast. Dozens have already appeared. Many more are in the works.

“There will be thousands of these throughout the city,” said Ward 6 City Councilman Steve Kozachik. “What we’re seeing will be repeated throughout the city.”

WAM: Contrary to what Councilman Kozachik, said, this is not inevitable. The City of Tucson can significantly improve matters by passing a moratorium based on our current national emergency (per ¶ 157 of FCC Order 18-111) and then locally regulate this unnecessary invasion of densified, overpowered 4G/5G so-called “small” Wireless Telecommunications Facilities (sWTFs) in residential neighborhoods.

In some cases the poles may be placed well, unobtrusively. In other sites, the workers bore through the roots of old trees and set up a silver pole right in front of someone’s house. Someone like Latisha Jones, who said standing on her porch at the corner of East Justin Lane and North Sycamore Boulevard in midtown:

“As far as this 5G pole, I don’t like it here. It felt like they could do whatever they want on people’s property. Why in front of somebody’s house where they live at? They make it hard to get in and out of the driveway. It’s just a hassle.” ”

​The property doesn’t belong to Jones, who has rented it for years, but neither she nor her landlord, Jo Riester, are happy with the pole’s placement in front of the house.

WAM: Whether a resident is a property owner is immaterial to the rights that all Tucson residents have to the quiet enjoyment of streets, which includes the public rights-of-way. Wireless carriers cannot incommode the public when placing, constructing or modifying WTFs. Owners and renters alike can force the City of Tucson to provide public safety in their public rights-of-way.

Riester is concerned, among other things, that the pole will reduce the value of the home, which is where she grew up. Both she and Jones also noted that the city has regularly warned or cited them for the weeds growing in the same patch of ground where the small-cell pole now stands. That raises the question: If the owner or renter are responsible for keeping that plot of land clean, then why can’t they decide whether they want a pole placed there?

Well, that’s a story, one that Kozachik is learning to tell. And he explained it to me in a few conversations last week.

The telecommunication companies need lots of smaller poles to support their 5G networks.

WAM: Well, that statement is not true, per Verizon itself →

“When [Verizon] went out in these 11 [5G test] markets, we tested for well over a year . . . the 200 feet from a home? We are now designing the network for over 2,000 feet from transmitter to receiver.

And federal law preempts states, while state law preempts cities, from doing much of anything about where they place their poles — as long as they place them in the public right of way. Spots like the one outside Jones’ home are next to the curb, and therefore part of the right of way. The city has no right to block it.

WAM: These statements are misleading, because the the City of Tucson does have the right to regulate the placement, construction, modification and operations of WTFs within the City’s boundaries. The Federal preemption mentioned is very narrow. The City of Tucson’s hands are clearly not tied on these Telecom matters. Again, listen to Andrew Campanelli, Esq: →

“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 significant 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 remedying 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 don’t think that has any effect on a town’s ability because . . .

  • The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
  • The FCC can’t wipe out twenty years of Federal judges’ interpretations
  • 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.”

“The permit is just a rubber stamp because the state law has a shot clock built into it,” Kozachik said. “If we don’t approve it within 75 days, it’s assumed to be approved.”

WAM: Not exactly, Mr Kozachik . . . the state law, HB.2365 says if the City does not decide to approve or deny the application within 75 days after receiving a complete application. Surprise . . . None of these applications are complete.

Arizona HB.2365 § 9-592.F(3) states:

“[ An authority] shall process each application on a nondiscriminatory basis. A complete application is deemed approved if the authority fails to approve or deny the application within seventy‑five days after receiving a complete application.”

Kozachik has been working with the various sides of this issue — residents, the city and Telecoms — for months. He doesn’t hold the Telecoms blameless, but he’s been most frustrated with the city bureaucracy. Yes, their hands are tied, he acknowledged, but they’re not giving the ward offices and residents enough warning about where the companies want to build. With more warning, the council offices and residents could divert them from putting up the most obnoxious poles.

WAM: Sorry, Mr. Kozachik, but the City’s hands are not tied. You are spreading misinformation when you says such things in the local paper. Your statements should be immediately retracted and then clarified. Why Mr. Kozachik have you refused to meet with a group of well-informed Tucson residents over the last six months to discuss this matter? Are you too much a “friend” of the wireless industry?

“I’m more frustrated with city staff than I am with the telecom industry,” Kozachik said. “Nobody from city staff is connecting those dots and saying ‘there’s another way of doing this.’”

Sergio Avila, who lives in Ward 3’s Sugar Hill neighborhood, said neither the city nor the local contractors have let the neighbors there know what’s going on.

“There’s zero communication,” he said. “They just show up one day and start digging.”

What Kozachik wants is not just early warning from the city, but also an effort to get the companies to put their 5G equipment on existing poles. As anyone who has ever tried to take a photo in Tucson knows, utility poles are everywhere — unavoidable. And though the city doesn’t have as many streetlights as most, those, too, can be used.

In addition, Kozachik has suggested placing the 5G poles where street signs go, and using the new poles for the street signs. Anything to reduce the number of poles littering the landscape.

The City Council will discuss these issues at the Tuesday, Feb. 23, study session, which begins at 12:30 p.m.

WAM: Hold on . . . this Feb 23, 2021 City of Tucson study session is currently violating the Arizona Open Meetings Act because the City is blocking the public’s right to attend (and participate) in the study session. Watching and viewing a study session is not the same as attending and participating.

Sometimes the contractors actually respond to complaints. Real estate agent Kelly Button sold a home to a buyer moving from California, only for the buyer to learn after closing that Verizon planned to put a pole right outside her bedroom window. After Kozachik set up a meeting by Zoom, Verizon agreed to move the pole closer to the nearby intersection, Button said.

Real estate agent Kelly Button said:

“Putting these poles in front of our houses is, in my opinion, completely unacceptable. “You put a 35-foot pole in front of somebody’s home, that’s going to hit property values.”

Verizon spokeswoman Heidi Flato said the company prefers using existing polls for its network.

“Our preference is to use existing city and utility infrastructure (street lights and utility poles) whenever possible,” she said via email. ” However, engineering limitations on and around existing infrastructure may prevent co-locations at times.”

If even the companies want this, the city should make it happen. As Kozachik proposed, the city should start pushing Verizon, AT&T and the other companies to put their 5G equipment on whatever existing poles work.

WAM: And, of course, in a way the ensures public safety and preserves the quiet enjoyment of streets and protects our environment. → .