Web Page Contents
- Rebuttal of September 6, 2022 MEMORANDUM — Project No. 202102816. (just below)
- A. Link to – TITLE 67: State Government and State Affairs
- B. Link to – New Substantial Written Evidence From Residents of Ada County, ID
- C. Link to -Substantial Written Evidenced Placed in Ada County Public Record
Rebuttal of September 6, 2022 MEMORANDUM — Project No. 202102816
September 8, 2022
Please find attached my rebuttal to some of the statements made in the September 6, 2022 MEMORANDUM — Project No. 202102816.
I wish to thank County planning staff and the County Commissioners for their thorough analysis and deliberations on Project No. 202102816, a Wireless Telecommunications Facility (WTF) proposed for W. Beacon Light Rd. in Eagle, ID. As an opponent of this project, I appreciate Ada county conducting fair due process and deliberations on this contentious permit application.
As you can read in the analysis, attached, we have attempted to separate the wheat (verifiable substantial written evidence) from the chaff (unsubstantiated opinions, projections and conclusory statements that are not backed by substantial written, probative evidence) so the Commissioners can be in the best position to make a reasoned decision based only on verifiable evidence in the Ada County public record. That requires filtering out statements that are not backed up by substantial written evidence.
Once the Commissioners do that, I believe they will be left with the following conclusions:
- Opponents placed substantial written evidence in the record proving that Verizon has no significant gap in telecommunications service in the target service area of the proposed tower. The analysis was unnecessarily complicated by Verizon not first powering of its antennas on the Water tower in order to establish an accurate baseline of signal strength measurements (dBm). Opponents have also placed substantial written evidence of unmitigated harms from the WTF proposed for W. Beacon Light Road: expert opinions from real estate brokers regarding lowered property values and a professional survey of negative business impact to Good Life farms.
- Vall Technologies essentially agrees with the Opponents that there has been insufficient analysis completed by the applicant and its RF consultant to establish a significant gap in Verizon’s telecommunications service. The applicant has not met its burden of proof for step one of the test (no significant gap) so there is no need to proceed to step two of the test (an assessment of least intrusive means).
- The FCC far overreached its authority in FCC Order 18-133, the Streamline so-called “small” Wireless Telecommunications Facilities (sWTFs) Order when it stated its desire to reject the Ninth circuit standard of no significant gap in telecommunications service and least intrusive means to close a proven gap. The FCC has no authority to do that, as some Federal courts have already ruled. An additional US Court of Appeals Ninth circuit ruling would need to be made in order to overturn the current Ninth Circuit standard of significant gap in telecommunications service and least intrusive means. Such a ruling does not exist, so the Ada County board of Commissioners are bound by the current Ninth Circuit standard of significant gap in telecommunications service and least intrusive means.
In the analysis attached, please find the evidence that refutes many statements made by the applicant in their September 5, 2022 submission from Mr. Joshua Leonard from Clark Wardle on behalf of Intermax Towers, LLC.
This analysis identifies the wheat (substantive statements) and the chaff (non-substantive statements) in the September 6, 2022 Memo re: Project No. 202102816 and provides rationale for our assessments. If you have any questions or need clarification, please call me at [redacted] or email me at [redacted].
Subject: Opponent Analysis of September 6, 2022 Memo re: Project No. 202102816
The following is a more detailed analysis of some of the statements made in the September 6, 2022 MEMORANDUM — Project No. 202102816.
In these deliberations on Project No. 202102816, the commissioners are bound by US Supreme Court Rulings, US Court of Appeals Ninth Circuit and DC Circuit rulings, Federal law and State law, including the Idaho Land Use and Planning Act, Title 67, Chapter 65, 67-6502. which has a stated purpose that is foundational to the Commissioners’ decision on this matter:
“to promote the health, safety and general welfare of the people of the state of Idaho . . to protect property rights, ensure that the economy of the state and localities is protected . . . ensure that the important environmental features of the state and localities are protected . . . encourage the protection of prime agricultural, forestry and mining lands and land uses for production of food, fiber and minerals, as well as the economic benefits they provide to the community . . . ensure that the development on land is commensurate with the physical characteristics of the land . . . to protect life and property in areas subject to . . . hazards and disasters . . . protect fish, wildlife and recreation resources . . .to avoid undue water and air pollution.
In short, the pollution from heavy industrial equipment — Wireless Telecommunications Facilities of any size or any “G” — must be considered undue air pollution when such pollution
- does not promote the health, safety and general welfare of the people of the state of Idaho
- lowers property values of any residences or businesses forced to endure the unmitigated nuisances from the WTF to further enrich multi-billion dollar wireless firms who already have sufficient signal strength for all to place outdoor wireless phone calls without the proposed WTF
- does not protect prime agricultural land uses for production of food (see analysis from Good Life Farms, LLC)
- is incompatible with the physical characteristics of the land (heavy industrial equipment should not be placed in residential areas)
In addition, the Commissioners are not bound by the statements made by the FCC in Federal Communications Commission’s 2018 Declaratory Ruling and Third Report and Order (see In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WT 17-29, WC 17-84, FCC 18-133, ¶ 13 (Sept. 26, 2018), vacated in part by City of Portland v. United States, 969 F.3d 1020 (9th Cir., 2020) (“FCC’s 2018 Declaratory Ruling and Order”). That is because the ruling of the three judge panel was very narrow and they expected that other matters upon which they did not specifically rule to be further adjudicated in court. See substantial written evidence to corroborate that conclusion listed below and in more detail at https://wireamerica.org/fcc-order-18-133/.
When arguing in the Ninth Circuit in Feb 2020 in support of FCC 18-133, FCC Attorney Scott Noveck said repeatedly:
“This Order [FCC 18-133, is] not self-enforcing. It contemplates the need, in many circumstances, for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”
“Nothing in this order is self-enforcing.”
Well, the rulings from law suits challenging FCC Order 18-133 are rolling in. Here is a ruling from July, 2022: Extenet v. Flower Hill
Senior United States District Judge 2nd Circuit, FREDERIC BLOCK ruled
“It is undisputed that a signal strength far less than Verizon’s desired -85 dBm would still be sufficient to make a phone call.”
. . . [The Village] Board voted on ExteNet’s application and unanimously denied it
- “(1) the significant adverse aesthetic and property values impacts of the 18 nodes permeating the tiny Village;
- (2) there is no gap in wireless coverage for Verizon and no need to justify the significant adverse impacts; and
- (3) ExteNet’s abject refusal to submit plans and photo simulations for each of its proposed nodes.
Improved [wireless] capacity and speed . . . are not protected by the [1996 Telecommunications Act. and] . . . Clear Wireless LLC v. Bldg. Dep’t of Vill. of Lynbrook, 2012 WL 826749, at *9 (E.D.N.Y. Mar. 8, 2012) (“It is not up to the FCC to construe the [Act] to say something it does not say, nor up to the Court to find broadband communication encompassed by the law.”
“The lack of a gap in coverage is relevant here and can constitute substantial evidence justifying denial of a permit.”
The content of the September 5, 2020 memo breaks down as follows:
- Staff introduction (1 page)
- Exhibit 31A — Project #202102816 CU – Applicant’s Supplemental Materials (11 pages)
- Exhibit 32A — Third Party Review for Ada County of Project #202102816 CU by Ron Valdez of Vall Technologies (10 pages)
- Exhibits 33A — Cell Towers Within Five Miles of 5410 W Beacon Light Rd (2 pages)
- Exhibit 34A — Appellant Evidence to Support Commission Denial of Project #202102816 CU (22 slides)
- Exhibit 35A — City of Eagle Conditional Use Permit Staff Report (6 pages)
This letter comments mainly on Exhibits 31A , 32A and 34A.
It is critically important — and foundational to the deliberations — for all parties to recognize that the actual applicant is NOT Verizon, but Intermax Towers, LLC which has far-reaching implications for the Commissioners’ decision in this matter. Since the preemption clauses in the 1996 Telecommunications Act (1996-TCA) — specifically US Code Title 47 §332(c)(7) apply only to providers of personal wireless services (Title II-regulated telecommunications services which are the only “covered” services in the 1996-TCA). Intermax provides no personal wireless services and, therefore, does not benefit from 1996-TCA preemption or even the FCC’s presumptive shot clock of 150 days for new construction. Intermax is proposing to build a tower to host wireless antennas (theirs) which only provide wireless information services.
To qualify for any of the 1996-TCA’s “effective prohibition” advantages, the applicant would have to be Verizon, T-Mobile or any other provider of personal wireless services and those providers would have to, in turn, provide sufficient self-insurance (a large enough bond amount, placed in escrow) to cover any future claims for injury, illness or death from RF Microwave radiation exposure. Using Intermax as a liability shield is a common trick employed by the Wireless industry, a strategy that was identified and fully explained by CA attorney Harry Lehmann in this July 19, 2017 letter to the CA Assembly Appropriations Committee — substantial written evidence which led to the veto of California SB.649, the Streamline Deployment of so-called “small” Wireless Telecommunications Facilities (sWTFs) Bill. I am placing that letter in the Ada County public record for Project No. 202102816 — by reference here.
The definition of “significant gap in coverage” that was affirmed by three key US Court of Appeals Rulings in the Ninth Circuit, listed below, does NOT include “in-building” coverage, “in-vehicle” coverage or wireless information service (data/streaming/video) coverage. “Significant gap in coverage” only applies to “personal wireless service” = wireless telecommunications service = outdoor wireless phone calls.
- Link to source MetroPCS, Inc. v. City of San Francisco, 400 F.3d 715 (9th Cir. 2005)
- Link to source Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc) (“Sprint II”)
- Link to source T-Mobile USA Inc. v. City of Anacortes<, 572 F.3d 987 (9th Cir. 2009)
- Link to Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019)
Title 47 U. S. Code Section 153
- “(50) Telecommunications: The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”
- “(53) Telecommunications service: The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”
- (24) Information service — The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019):
“By reclassifying broadband as an information service, the [FCC] placed broadband outside of its Title II jurisdiction. And broadband is not a “radio transmission” under Title III or a “cable service” under Title VI. So the Commission’s express authority under Titles III or VI does not come into play either. Nor did Congress statutorily grant the Commission freestanding preemption authority to displace state laws even in areas in which it does not otherwise have regulatory power.”
Wheat (W) Statements
- Most of Exhibit 32A — Third Party Review for Ada County of Project #202102816 CU by Ron Valdez of Vall Technologies (10 pages)
- All of Exhibit 34A — Appellant Evidence to Support Commission Denial of Project #202102816 CU (22 slides)
Chaff (C) Statements
- Exhibit 31A, page 2 — Leonard: “locating a wireless communications facility on nearby BLM -managed land would not resolve the significant gap in wireless service . . . See Section 2, below, for more information on how putting a tower on BLM -managed land would not provide the coverage Verizon needs to fill the significant gap in coverage”
- C-1 Assessment: This is a conclusory statement; the images shown in Section 2 are not backed up by substantial written evidence or verifiable dBm measurements of before conditions (with no Water Tower antennas operating) to establish if a significant gap in Wireless Telecommunications service would exist under before conditions.
- Exhibit 31A, page 3 — Leonard: “Although the planned 100’ tower on the Proposed Site would be visible from a dozen or so properties; a tower on BLM -managed land would be visible from thousands of properties, including those that are several miles away.”
- C-2 Assessment: This is a conclusory statement presented without evidence and should be disregarded. To which of the four (4) BLM -managed parcels within approximately 1.5 miles of the “proposed site.” is Leonard referring? He does not say. This cannot be verified.
- Exhibit 31A, page 3 — Leonard: “Applicant’s Radio Frequency (“RF”) Engineer, Steven Kennedy of Biwabkos Consultants, LLC, examined whether locating the proposed tower on the BLM.”
- C-3 Assessment: Kennedy is not a professional engineer. He is a former employee of one or more a wireless companies. Request Mr. Kennedy’s resume for proof of these true statements. The Biwabkos web site contains only general information.
- Exhibit 31A, page 3 — Leonard: “The propagation chart shown in Image A, above, depicts Verizon’s coverage as it exists today, generated only by Verizon’s antennas on the silo, with all other existing Verizon antennas (the tower at Skyview Lane that was approved in 2019 after Horizon Tower filed suit against Ada County in federal court, the tower at Eagle High School, and a tower near the intersection of W. State Street and State Highway 16) turned off.”
- C-4 Assessment: The picture on page 3 does not specify the data inputs into the software and whether those inputs are based on actual dBm measurements of the area. The reader is left in “trust me, trust me, trust me” territory. These picture cannot be verified by a third party because Biwabkos provided no underlying probative data allowing others to verify his work.
- Exhibit 31A, page 5 — Leonard: “Image C, above, shows the significant loss in coverage (particularly indoor coverage) that will result when Verizon’s antennas are removed from the Silo Property without a replacement tower at the Proposed Site. In other words, Image C depicts Verizon’s coverage with no antennas on the Silo Property and no antennas on the Proposed Site. All other existing Verizon sites . . . are shown operational, to capture exactly what will happen if Verizon’s Silo Property antenna are removed without a replacement tower on the Proposed Site.”
- C-5 Assessment: “Indoor coverage” is NOT part of the US Court of Appeals ninth Circuit ruling regarding “significant gap in coverage” and ‘least intrusive means” to address any proven significant gap in wireless telecommunications service (see citations, above). The picture shows full service everywhere within the oval because all three colors shown (green, yellow and red) indicate the ability for users to make outdoor phone calls. If there are any actual problems in telecommunications service, as defined by federal law and US Courts of Appeals Ninth Circuit case law, then such problems can be established by Wireless carriers by showing a 12-month anonymized completed calls/dropped call analysis. Every carrier has that data immediately available at minimal cost. The Wireless carriers are merely choosing to hide this information from local governments. Ada County Commissioners can require such call records at any time. Such a requirement is best contained in Ada County code, but not doing so, however, does not mean that the Commissioners cannot require this information for their deliberations right now.
- Exhibit 31A, page 10 — Leonard: “Ada County continues to rely on the outdated two-prong test formulated by the Ninth Circuit Court of Appeals (and also formerly applied in the Second and Third Circuits), for determining whether the County’s denial of a permit application would have “the effect of prohibiting the provision of personal wireless services” (47 USC 332(c)(7)(B)(i)(II)) -specifically, (1) whether a “significant gap in coverage exists in an area, and (2) whether an applicant’s proposed means of filling the gap in coverage is the “least intrusive” means. (See American Tower Corp. v. City of San Diego, 763 P.3d 1035, 1056-57 (9th Cir. 2014); see also T-Mobile USA v. City of Anacortes, 572 F.3d 987, 995-99 (9th Cir. 2009).) The outdated two-prong test relied on by Ada County has not been the law since 2018, when the Federal Communications Commission approved and released FCC’s Declaratory Ruling and Order, aff’d in part and vacated in part by City of Portland v. United States, 969 F.3d 1020 (9th Cir., 2020).)
- C-6 Assessment: The test for significant gap in telecommunications service and least intrusive means for addressing a proven gap is NOT outdated; in fact it is the current standard in the Ninth Circuit (see details here https://wireamerica.org/fcc-order-18-133/
- Exhibit 31A, page 10 — Leonard: The correct test now to be applied in determining whether a permit denial would have “the effect of prohibiting the provision of personal wireless services” (47 USC 332(c)(7)(B)(i)(II)) is: **Whether Ada County’s denial of the Application “materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service.”
- C-7 Assessment: Covered services are only telecommunications service which is the ability to place an outdoor wireless phone call. The FCC no longer regulates information services; it only regulates covered telecommunications services (see details here https://wireamerica.org/fcc-order-18-133/)
- Exhibit 31A, page 10 — Leonard: Part III.A. of the FCC’s Declaratory Ruling and Order, ¶¶ 34-40, including (without limitation) FNs 75, 80, 84, 87, and 94. This Application seeks authorization for a replacement tower, because (a) the silo on which Verizon’s antennas that provide wireless service to this area will be demolished, and more importantly (b) the owner of the Silo Property has refused to negotiate an extension of Verizon’s lease on that silo. Failure by Ada County to approve this Application certainly qualifies as an effective prohibition of service, which is forbidden by the Telecommunications Act of 1996. (See 47 USC 332(c)(7)(B)(i)(II).)
- C-8 Assessment: Footnotes 75, 80, 84, 87, and 94 from this document https://docs.fcc.gov/public/attachments/FCC-18-133A1.pdf are refuted here –> https://wireamerica.org/fcc-order-18-133/. Importantly none of these ideas have yet been tested in a Ninth Circuit Appellate ruling.
- Exhibit 31A, page 10 — Leonard: With all due respect to the Board, the scope of its direction to County staff and CTC is impermissible under the Telecommunications Act of 1996 and the Federal Communications Commission’s 2018 Declaratory Ruling and Third Report and Order (see In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WT 17-29, WC 17-84, FCC 18-133, ¶ 13 (Sept. 26, 2018), aff’d in relevant part and vacated in part by City of Portland v. United States, 969 F.3d 1020 (9th Cir., 2020) (“FCC’s 2018 Declaratory Ruling and Order”). Specifically, a key footnote in the FCC’s 2018 Declaratory Ruling and Order reads (in pertinent part): “…local jurisdictions do not have the authority … to dictate the design of a provider’s network.” (Footnote 84 to Paragraph 36 in Part III.A. of See 47 U.S.C. § 332(c)(3)(A); see also Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 989 (7th Cir. 2000)).
- C-9 Assessment: See the evidence already cited about the August 2020 ruling in Case-No-18-72689 City of Portland et al. v FCC.
August 12, 2020 Ruling in Case No. 18-72689 City of Portland et al. v FCC
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. The full video of the oral argument is featured at the top of this page.
The judges ruled:
“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.
- GRANT the petitions as to those requirements,
- VACATE those portions of the rule and
- REMAND them to the FCC.”
At 30:29 in this July 23, 2020 video, top telecom attorney, Andrew Campanelli says the following about Case No. 18-72689 City of Portland et al. v FCC:
“I don’t think that [FCC 18-133] has any effect on a town’s ability [to deny WTF applications] 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 substantial written evidence, above, refutes nearly all of the analysis purported by Mr. Joshua Leonard from Clark Wardle in Exhibit 31A .
- A. Link to – TITLE 67: State Government and State Affairs
- B. Link to – New Substantial Written Evidence From Residents of Ada County, ID
- C. Link to -Substantial Written Evidenced Placed in Ada County Public Record
A. TITLE 67: State Government and State Affairs
CHAPTER 65: Local Land Use Planning
67-6502. Purpose. The purpose of this act shall be to promote the health, safety and general welfare of the people of the state of Idaho as follows:
- (a) To protect property rights while making accommodations for other necessary types of development such as low-cost housing and mobile home parks.
- (b) To ensure that adequate public facilities and services are provided to the people at reasonable cost.
- (c) To ensure that the economy of the state and localities is protected.
- (d) To ensure that the important environmental features of the state and localities are protected.
- (e) To encourage the protection of prime agricultural, forestry and mining lands and land uses for production of food, fiber and minerals, as well as the economic benefits they provide to the community.
- (f) To encourage urban and urban-type development within incorporated cities.
- (g) To avoid undue concentration of population and overcrowding of land.
- (h) To ensure that the development on land is commensurate with the physical characteristics of the land.
- (i) To protect life and property in areas subject to natural hazards and disasters.
- (j) To protect fish, wildlife and recreation resources.
- (k) To avoid undue water and air pollution.
- (l) To allow local school districts to participate in the community planning and development process so as to address public school needs and impacts on an ongoing basis.
- (m) To protect public airports as essential community facilities that provide safe transportation alternatives and contribute to the economy of the state.
History: [67-6502, added 1975, ch. 188, sec. 2, p. 515; am. 1992, ch. 269, sec. 1, p. 831; am. 1994, ch. 245, sec. 1, p. 764; am. 1999, ch. 396, sec. 2, p. 1100; am. 2011, ch. 89, sec. 1, p. 192; am. 2014, ch. 93, sec. 3, p. 254.]
B. New Substantial Written Evidenced From Residents of Ada County, ID
Proof of No Significant Gap in Telecommunications Coverage Eagle, ID Aug 28, 2022
Wireless Carrier Signal Strength Readings, Aug 28, 2022
Please also download the map image; it accompanies the spreadsheet of dBm readings, above:
Spectrum Analyzer Used: WilsonPro Cell LinQ Meter
Link to Cellular Signal Meter Tool Kit – 910055
- Multi-Generation LTE, Cellular, AWS and PCS and C-Band Scanner for 3G, 4G and 5G signals
- Details tower location via GPS coordinates, signal strength (dBm), downlink frequency (MHz), distance to tower (feet)
- Capture, store and export wireless carrier-specific signal strength readings results
- 3-year warranty from date of purchase
- Link to specifications worksheet